STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1233T

)

FUQUA & DAVIS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in April of 1983 in Chipley, Florida by Stephen F. Dean, assigned Hearing Officer, of the Division of Administrative Hearings. The Recommended Order in this cause was delayed first while the Respondent initiated a collateral rule challenge and, subsequently, while a related case was on appeal. It was not until the summer of 1984 that the Department of Transportation requested that the Recommended Order he entered. Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings are not contained herein, they are rejected as being either not supported by competent substantial evidence, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.

APPEARANCES

For Petitioner: Charles Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

For Respondent: James J. Richardson, Esquire

Post Office Box 1838 Tallahassee, Florida 32302

ISSUES

The Administrative Complaint in this cause charges that the subject sign violates Sections 479.071 and 479.021(a), Florida Statutes, and Rule 14-10.09, Section 3, Florida Administrative Code, which is the same as Rule 14-10.06(b)2 (b), Florida Administrative Code, supra. The Respondent admits ownership of the outdoor advertising structure and that it does not bear a tag as required by Chapter 479, Florida Statutes; however, the Respondent asserts that the sign in question qualifies as an exception and is entitled to a tag pursuant to the provisions of Section 479.111, Florida Statutes. The Petitioner asserts that the sign does not qualify for a tag and stipulates that had the Respondent applied for a tag that said application would have been denied. The Respondent also contends that the sign is exempt from operation of the outdoor advertising law in all respects pursuant to the provisions of Section 479.16(1), Florida Statutes. Based upon the foregoing, the following issues of fact are raised:

1. Is the subject sign an on-premises sign for purposes of the exemption stated in Section 479.16(1), Florida Statutes, and

   
   

2. Is the sign located in an unzoned commercial or industrial area as defined by Section 479.111(2) and Rule 14- 10.06(b)(2)(b), Florida Administrative Code, and

   
   

3. Does the subject sign meet the spacing requirements set forth in Rule 14-10.06(b)(2)(b), Florida Administrative Code?

FINDINGS OF FACT

The parties stipulated to the facts as found in paragraphs 1 through 10 below.

1. The subject advertising structure is an advertising sign as defined by Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code.

   
   

2. The subject sign is located in Jackson County, Florida.

   
   

3. The subject sign is not within the corporate city limits of any city or town.

   
   

4. The subject sign is within 660 feet of Interstate 10.

   
   

5. The subject sign is owned by the Respondent, Fuqua & Davis, Inc., a Florida corporation.

   
   

6. The subject sign does not have a permit as required by Chapter 479, Florida Statutes.

   
   

7. The Petitioner, Department of Transportation, would not issue a permit as required by Chapter 479, Florida Statutes, for the subject sign.

   
   

8. There is no zoning in Jackson County, Florida.

   
   

9. Interstate 10 is an interstate highway as defined in Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, and said interstate highway was open for vehicular traffic at the time sign was erected.

   
   

10. The subject sign is located at the interchange of State Road 71 and Interstate 10. In this location, there were three commercial enterprises located prior to the construction of Interstate 10. Two of these commercial enterprises, Malloy Wholesale Gladiola Farms and Grant Cabinet and Millworks, still exist and are identified on Petitioner's Exhibit 1, an aerial photograph. The third business was removed during the construction of the interchange.

    
    

11. The area surrounding the interchange of State Road 71 and Interstate

    10 is an unzoned commercial area. This finding is based upon the testimony of a real estate appraiser together with the businesses which are located in this area. These businesses include Malloy Wholesale Gladiola Farms, Grant Cabinet and Millworks, a retail grocery store, and a major regional truck center (truck- stop). The area surrounding the intersection of State Road 71 and Interstate 10 is unzoned commercial and the subject sign is located in such an area.

12. The location of the subject sign is identified on Petitioner's Exhibit 1, an aerial photograph. The subject sign is located adjacent to an interchange on an interstate highway. It is not located on the premises of the business advertised. A diesel pump is located within 20 feet of the signs; however, the pump and sign are over 1,000 feet away from the advertised business on non- contiguous property.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Department of Transportation regulates outdoor advertising pursuant to the provisions of Chapter 479, Florida Statutes. This Recommended Order is entered pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

14. The Administrative Complaint in this case asserts that the Respondent's sign is in violation of Chapter 479, Florida Statutes, because it fails to bear the required tag and that such tag could not be issued to the Petitioner for the sign because it violates the spacing requirements set forth in Rule 14- 10.06(b)(2)(b) Florida Administrative Code. The Respondent asserts that the subject sign is entitled to the required permit pursuant to the exception in Section 479.111, Florida Statutes. Section 479.111, Florida Statutes, permits signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to the agreement established by Section 479.02, Florida Statutes. The agreement established pursuant to Section 479.02, Florida Statutes, includes the provisions of Rule 14- 10.06(b)(2)(b), Florida Administrative Code. Therefore, the subject sign must not only be within a zoned commercial or industrial area or an unzoned commercial or industrial area, but also must conform to certain spacing requirements. The spacing requirements of Rule 14-10.06(b)(2)(b), Florida Administrative Code, provide that no structure may be located adjacent to or within 500 feet of the widening of the highway for an interchange, intersection at grade, or safety rest area. The aerial photograph (Petitioner's Exhibit 1) clearly shows that the subject sign is adjacent to the interchange and, therefore, does not meet the requirements for an exception to Section 470.111, Florida Statutes. The Respondent also asserts that the subject sign qualifies for the on-premises exception as set forth in Section 479.16(1), Florida Statutes. Although the evidence presented reflects that there is a diesel pump selling non-tax- paid diesel fuel located within 20 feet of the subject sign, the sign and pump are located over 1,000 feet from the business located on non-contiguous property. Although sales of such fuels were made according to sales receipts introduced at the hearing, it is concluded as matter of law that Section 479.16(1), Florida Statutes, does not exempt the subject sign from regulation and the requirement to have a tag because the property is non- contiguous.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Final Order of the Department be issued requiring removal of the sign within thirty (30) days by the Respondent.

DONE and ORDERED this 28th day of November, 1984 in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Charles Gardner, Esquire Department of Transportation Haydon Burns Bldg., MS-58 Tallahassee, Florida 32301

James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Mr. Paul Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of November, 1984.

Docket for Case No: 82-001233

Orders for Case No: 82-001233