STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FUQUA & DAVIS , INC., a )

Florida Corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2172RX

) DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on November 22, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James J. Richardson, Esquire

Post Office Box 12669 Tallahassee, Florida 32317

For Respondent: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

By its petition in this cause, Petitioner, Fuqua & Davis, Inc. ("Petitioner"), has challenged the validity of Rules 14-10.09 and 14- 10.06(1)(b)2.b., Florida Administrative Code. Petitioner asserts that the challenged existing rules are unconstitutionally vague, that they were promulgated pursuant to a statute which constitutes an invalid delegation of legislative authority, and that the challenged rules are facially invalid for lack of legislative authority. Only the latter of the three above-enumerated issues are cognizable in this proceeding.

At the final hearing in this cause, Petitioner called no witnesses and offered Petitioner's Exhibits 1 through 3, which were received into evidence. Respondent called Milford C. Truette as its only witness, and offered Respondent's Exhibits 1 through 4, which were received into evidence.

FINDINGS OF FACT

1. The parties to this proceeding stipulated to the existence of three cases presently pending before the Division of Administrative Hearings in which the Department of Transportation seeks to enforce the challenged rules against Petitioner. As such, the Department of Transportation has conceded that

   Petitioner herein is "substantially affected" so as to clothe it with standing to maintain this rule challenge proceeding.

   
   

2. On January 27, 1972, the Governor of the State of Florida entered into an agreement with the United States of America, represented by the United States Department of Transportation and the Federal Highway Administration. That agreement contained certain restrictions on outdoor advertising signs near controlled interchanges, and is now commonly referred to as the "Interchange Rule." That rule is now contained in Rule 14-10.09(2), Florida Administrative Code.'

   
   

3. The agreement contained in Rule 14-10.09(2), Florida Administrative Code, was ratified by the Florida Senate in Concurrent Resolution No. 657.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.56, Florida Statutes.

   
   

5. Rule 14-10.09, Florida Administrative Code, is entitled Agreement Relating to Size, Lighting and Spacing of Signs Along Interstate and Federal Aid Highways. This rule became effective March 28, 1977, and was amended effective December 10, 1977. Section 14-10.09(1) provides as follows:

   
   

   1. Purpose. The purpose of this

      rule is to implement the provisions of the agreement between the Governor and

      U.S Department of Transportation relative to the effective control of the

      size, lighting and spacing of Outdoor Advertising Signs as provided for in Section 479.02 and 479.025 F.S.

      
      

      Section 14-10.09(2), Florida Administrative Code, contains the particulars of the agreement reached between the State of Florida and the Federal Government, the soecifics of which are not pertinent here. That section provides, in part, that the agreement is entered into

      
      

      for the purposes of carrying out national policy relative to control of outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways and the Federal- Aid Primary System, as authorized by chapter 479, Florida Statutes, Title 23, Section 131, United States Code."

      
      

6. Section 14-10.06(1)(b)2.b., Florida Administrative Code, provides as follows:

   
   

   Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or

   safety rest area. Said five hundred (500) feet to be measured along the Inter-

   state from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.

7. Section 334.02(6), Florida Statutes, provides that: The Legislature intends to declare,

   in general terms, the powers and duties

   of the Department of Transportation, leav- ing specific details to be determined

   by reasonable rules and regulations which the department may promulgate. The Legis- lature intends, by a general grant of authority to the Department of Transpor- tation, to delegate sufficient power and authority to enable the department to

   carry out the broad objectives stated above.

   
   

8. Section 479.02, Florida Statutes, provides as follows:

   
   

   1. It shall be the function and duty of the department, subject to current federal regulations, to:

      1. Administer and enforce the pro- visions of this chapter including, but not limited to, executing agreements in

         conjunction with the Governor in accordance with title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code;

      2. Regulate size, lighting, and spacing of signs permitted in zoned and unzoned commercial and zoned and unzoned industrial areas;

      3. Determine unzoned commercial and industrial areas; and

      4. Regulate signs relating to food, lodging, camping, vehicle' service, and attractions...

         
         

9. Where, as here, the legislature has delegated broad discretionary rulemaking authority to an agency "....the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious. "

Florida Beverage Corp. v. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1975). As indicated above, Petitioner has not asserted in this proceeding that the challenged rules are arbitrary or capricious. Instead, Petitioner argued only that there is no statutory authority to support the adoption of these rules. It is, however, determined as a matter of law that Petitioner's contentions in this regard are without merit. As held by the court in Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981):

When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not,

and we shall not, overly restrict the range of an agency's interpretative powers. Permissible interpretations

of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. If the rule

binds too tightly to suit them [opponents of the rule] have their proper remedy in the representative and politically res- ponsive branches, the legislative or executive, but not in the judiciary,

nor in Section 120.56 rule challenges before a hearing officer.

The rules challenged in this proceeding are reasonably related to the purposes contained in Section 479.02, Florida Statutes. Further, both of these rules have been in effect since 1977 and, as the court in Jax Liquors, Inc. v.

Department of Business Regulation, 388 So.2d 1306, 1308 stated:

the presumption of [the rules]

validity [has gained] added weight from its having laid upon the public in [the] Florida Administrative Code for several legislative sessions without disapproval or interference by either the legislature

or its Administrative Procedures Committee.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

That the relief requested by Petitioner be, and the same is hereby, DENIED, and this cause is dismissed.

DONE AND ENTERED this 8th day of March, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984.

COPIES FURNISHED:

James J. Richardson, Esquire Post Office Box 12669 Tallahassee, Florida 32317

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building

Tallahassee, Florida 32301

Liz Cloud, Bureau Chief Administrative Code Suite 1802, The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-002172RX

Orders for Case No: 83-002172RX