STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0677T

) GOLDEN LARIAT WESTERN SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on May 24, 1984, in Chipley, Florida. Subsequent to the filing of the transcript the parties submitted proposed findings of fact and conclusions of law which have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the credible evidence, and have been rejected.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301

For Respondent: Charles M. Wynn, Esquire

Post Office Box 793 Marianna, Florida 32446

By letter dated January 30, 1984, the Petitioner, Department of Transportation, advised the Respondent, Golden Lariat Western Shop, that this proceeding was initiated to revoke Permit Number AJ 666-12 authorizing a sign located on the north side of I-10, .2 mile west of C-69A in Jackson County, Florida. The Department alleged that there is an absence of business activity adjacent to this sign location which could qualify the site as an unzoned commercial or industrial area pursuant to Rule 14-10.06, Florida Administrative Code, and Section 479.02, Florida Statutes. Thus, the issue to be resolved is whether the Respondent's permit for a sign should be revoked because the location of this sign does not meet the requirements for designation as an unzoned commercial or industrial area.

FINDINGS OF FACT

1. Golden Lariat Western Shop was issued permit number AJ 666-12 authorizing a sign on the north side of 1-10, .2 mile west of C-69A in Jackson County, Florida. This location is in an unzoned area, and the permit was granted because of the proximity of this site to a welding business supposedly operating in a wooden building located directly behind the sign. Prior to field approval of the location, a Department sign inspector requested and received copies of receipts for work done by the welding shop, and the sales tax registration for the business. Field approval was granted on July 11, 1983, and the permit application was approved on July 14, 1983.

   
   

2. On November 11, 1983, a routine field inspection was conducted by the Department, and there was no commercial activity being conducted in the area where the building and the sign are located. Pictures of the site show a wooden building approximately 10 feet by 12 feet, without any windows, sitting on concrete blocks adjacent to the sign. This area is rural in nature with an agricultural setting. There are fences between the interstate highway and the building, and there is a pony shown in the photographs next to the fence. There is no road in this area, no evidence of any welding activity such as scraps of iron, etc., and the building is not open for business.

   
   

3. Additional inspection visits were made by the Department on various dates, end at different times during the day, between December 6, 1983, and May 2, 1984. There was no commercial activity in the area during any of these visits. There was a sign on the building marked "Mike's Welding Shop", but on March 15, 1984, this sign had been replaced by a sign advertising Beach Sign Company, and displaying the telephone number at the residence of one of the owners of the Golden Lariat Western Shop. When this telephone number was called by the Department's Inspector on March 26, 27, 28, 29 and April 23, 1984, no one answered.

   
   

4. Neither of these signs gave any directions to show how to get to the place of business. The wooden building is located in an area which is cut off by Interstate 10. In order to reach this building, according to the Department's Inspector, a customer would have to ". . . come off the C-69(A) onto the old C-69(A) and. . . go to the end of that where it dead-ends, turn right down a dirt lane, go past Mr. Branch's house into a field to gain access to the building." Part of C-69(A) overpasses I-10 in this area. On May 2, 1984, the Inspector observed a sign indicating "closed at job site - back 10 a.m." The inspector waited until 12 noon and no one showed up. He also noted it had rained the night before, but there were no tireprints or foot steps in the area where the building is located.

   
   

5. The Department requires that an unzoned commercial or industrial area be an active site. The business activity must be operational, and observable, and readily recognized as an active business. As a result of the inspections made by the Department's representatives, a letter was sent advising the Respondent that the sign permit was being revoked because of lack of commercial activity in the area.

   
   

6. The owner of Mike's Welding Shop, who is also one-half owner of the Golden Lariat Western Shop, entered into a five-year lease on October 27, 1982, for an area large enough for a one-face sign at the location in question, at an

   annual rental of $350. This lease does not cover the area where the welding shop is located, but there was a verbal understanding that the building housing the welding shop could be placed there without additional rental. The wooden building was constructed in three days, and placed on top of concrete blocks, but it is not fastened to the blocks and can be moved elsewhere. It has two electrical outlets, but no running water or sewage connection.

   
   

7. The welding shop owner is not a certified welder, and he did not know the voltage or the amperage of the welding machine used in this business. He does not go to the shop every day and could not remember if he was present in the shop on the dates when the Department's Inspector found it closed. He contends that others use the shop and the equipment, and he sends them a bill. He also claims that the welder was broken from November 1 to the latter part of December, 1983. He admits that no sales tax return has been filed since December of 1983.

   
   

8. This building was leased to Beach Sign Company in March, 1984, for rental of $10 per month. Prior to moving this business to Grand Ridge the owner conducted it out of his home in Panama City. Basically, this business consists of renting or selling portable signs on trailers. These signs are manufactured by a sign company, and rented or sold through a catalog-type of brochure with pictures. The customer orders from the manufacturers. The owner of this sign business contends that he also rebuilds signs, but as yet he has not actually finished rebuilding any sign. He claims to have applied for a sales tax number for this business, but he has not received it yet.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

   
   

10. Section 479.11, Florida Statutes, provides in part:

    
    

    No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

    1. within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.11 . . .

11. Section 479.111, Florida Statutes, provides in part: only the following signs shall be permitted

    within controlled positions of the interstate and federal-aid primary systems:

    (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

12. Section 479.02, Florida Statutes provides in part:

    
    

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

       1. Administer end enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the Governor in accordance with title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code.

          (c) Determine unzoned commercial and industrial areas; . . .

          
          

13. Section 14-10.09(2), Florida Administrative Code, adopts the agreement between the United States and the State of Florida. Section I, 1., B., provides:

    
    

    B. Unzoned commercial or industrial area means an area within six hundred sixty (66Q) feet of the nearest edge of the right-of-way of the Interstate, Federal-Aid Primary System, or State Highway Systems not zoned by State or local law, regulation or ordinance in which there is located one (1) or more industrial or commercial activities generally recognized as commercial or industrial by zoning authorities in this State except that the following activities may not be so recognized:

    1. Outdoor advertising structures.

    2. Agricultural, forestry, ranching, grazing, farming, and related activities, including,

       but not limited to, wayside fresh produce stands.

    3. Transient or temporary activities.

    4. Activities not visible from the main-traveled way.

    5. Activities more than six-hundred sixty (660) feet from the nearest edge of the right-of-way.

    
    

14. Pursuant to these statutes and rules, the Department of Transportation has the duty to determine unzoned commercial and industrial areas, and it initially determined the area in question to be unzoned commercial. This determination was based on the representation by the Respondent that an active welding business was being conducted in the building immediately adjacent to the sign. However, inspections made by the Department's representatives showed a lack of any business activity at this site. There was not presented sufficient evidence to show that the welding shop had functioned as a business inside the wooden structure since November of 1983 when the welder broke. Moreover, no sales tax reports have been filed for this business since December, 1983.

    
    

15. The Respondent attempted to show that since March of 1984 a sign business has been conducted from the building at the subject site. However, no sign business is actually being conducted out of this building. This sign business in fact is being carried on elsewhere, either by telephone or at the customer's place of business. The building is used mainly for storage.

16. The only sales documentation shown by the owner of the sign company since moving his business from Panama City was a rental agreement which was executed at the customer's address. The type of business operated by Beach Sign Company is essentially a jobbing operation, conducted out of a residence and an automobile. Business is transacted over the telephone and at the addresses of the customers. Signs are ordered out of a picture-type catalog, and moved from one customer's location to another or stored at a customer's location. Maintenance and repairs are minimal. Further, the building does not give the appearance of a facility where business is conducted. The type of structure, its abandoned look, and lack of accessibility does not invite customers to the location. The building is a small, temporary-type, wooden structure without any windows, located in an agricultural setting, with severely limited access.

    
    

17. Thus, there is sufficient evidence to support the Department's finding that the location where the subject sign is situated is not a commercial or industrial area, due to the absence of any regular commercial activities being conducted there, as required by the above statutes and rules.

    
    

18. However, in order to revoke a sign permit once it is issued, the evidence must show that the application for the permit contained knowingly false or misleading information. Section 479.08 (1), Florida Statutes, provides in part:

    
    

    1. The department may. . .revoke any permit issued by it. . . where it shall appear. . . that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter. . . (Emphasis added)

       
       

       There was no evidence presented to support a finding that the Respondent's application for the permit contained knowingly false or misleading information. The Department requested and received copies of receipts for work done in the welding shop, and the sales tax registration for the business, and was satisfied that a welding business was being conducted next to the sign site when the permit was issued. It has only been subsequent to the issuance of the permit that the welding business discontinued, and the site was rented to a sign business that is not actually being carried on out of the building in question. Thus, the permit cannot be revoked.

       
       

19. The sign was erected pursuant to the authority of a valid permit, and it was, therefore, lawfully erected. Yet the character of the area has subsequently changed, in that there is no longer any commercial or industrial activity being carried on at the site. Section 479.23, Florida Statutes, provides in part:

All signs which are lawfully in existence or are lawfully erected and which do not conform to the provisions of this chapter shall not be required to be removed. . .until after the end of the fifth year after they have become nonconforming.

Consequently, the Respondent's sign may not be removed until five years after the date of the Department's Order in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that sign permit number AJ 666-12 held by the Respondent,

Golden Lariat Western Shop, authorizing a sign on the north side of I-10, .2 mile west of C-69A, facing east, in Jackson County, Florida, be revoked, and the subject sign removed, on a date five years after the date of the Final Order in this case.

THIS RECOMMENDED ORDER entered this 20 day of July, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 20 day of July, 1984.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Charles M. Wynn, Esquire

P. O. Box 793

Marianna, Florida 32446

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 84-0677T

GOLDEN LARIAT WESTERN SHOP,

Respondent.

/

FINAL ORDER

A review of the complete record in this proceeding has been made including a review of the Recommended Order entered by the Hearing Officer, copy attached. The Exceptions submitted on behalf of Petitioner and the Response to Petitioner's Exceptions to the Recommended Order have been considered. The Findings of Fact of the Hearing Officer are supported by the record; the Conclusions of Law are considered correct, with certain deletion and revocations noted herein.

The parties are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.2-2(3), Florida Statutes.

Petitioner's Exception 1 is found to have merit. In accord, the record does not show that the applicant's efforts in the small structure resulted in the establishment of a commercial or industrial activity (T: 43, 75), nor that the applicant's activities would generally be recognized as commercial and industrial activity by the zoning authorities in this state. The Respondent's exhibits 9 through 12 reflect that gross sales at the welding shop from July through December, 1983, never exceeded $100 in one month. Section 479.01(10)(c), Florida Statutes, provides that "transient or temporary activities" shall not be recognized as an unzoned commercial or industrial area. The application represented that an active, continuous, commercial activity was to occur at the sign location. This was accepted in good faith by the Department. The record however, does not support a conclusion that such a

commercial enterprise ever ensued, or was actually established. (T: 43, 75; REX: 9-12)(See Hearing Officer's Finding of Fact number 1 that the "permit was granted because of . . . a welding business supposedly operating" [emphasis added].) The Hearing Officer's Conclusion of Law 6 is modified to delete the last eight words of sentence 4. The revised sentence should be, "There was not presented sufficient evidence to show that the welding shop ever had functioned as a business." All other sentences in that paragraph are adopted as they are.

Petitioner's Exception 2 is found to be correct. Accordingly the Department rejects Conclusions of Law 10 and 11 because the Hearing Officer applied a statute provision, Section 479.23 F.S. which does not apply to the instant case. Section 479.23 F.S. was enacted late in 1971 to implement the provisions of the simultaneously enacted Section 479.025 (found in F.S., 1973) in which the Department was to execute am agreement described in Section 479.02 (F.S., 1973 - 1983) between the Governor and the United States Government. The agreement committing the State to enforce regulations in conjunction with Federal legislation for highway beautification "along interstate and federal-aid primary highway systems for which the State receives federal aid funding. At the enactment and implementation of these new standards by the State, Sections

479.23 and 479.24 were also added to protect already-erected signs which would not be in conformance with the new standards or with later adopted standards. Thus, an existing sign along an interstate or federal-aid highway which suddenly became nonconforming was afforded a five year grace period from the new outdoor advertising regulations. Analogous situations today may occur when highways are redesignated or reclassified, or when property on which signs are located is rezoned. In sum, the language of Section 479.23 explicitly addresses nonconforming signs. The Hearing Officer incorrectly applied Section 479.23 to a situation which did not involve rights accruing to a pre-existing nonconforming sign. Rule 14-10.07, F.A.C., defines a nonconforming sign and provides examples of changed conditions. It is relevant that the changed conditions referenced in the rule are conditions which are not within the sign owner's control, but are conditions which have changed due to outside factors. As examples of changed conditions making a sign nonconforming, the rule cites ".

. . a change in the zoning classification of the land on which the sign is located, or reclassification of the highway adjacent to the sign." Zoning and land use law defines "nonconforming use" as:

The phrase "nonconforming in the law of zoning, is usually defined as a lawful use of premises existing on the effective date of the zoning regulations and continued thereafter, which does not conform to such regulations (emphasis added).

Usually a nonconforming use is allowed to continue subject to certain conditions. This is done in an effort to secure a reasonable exercise of the police power for the interest of the community against the interest of the private owner so as not to interfere with existing conditions more than necessary for the public welfare. 7 Fla. Jur. 2d, Building, Zoning and Land Controls, Section 131.

In the instant case the sign, while erected and permitted in good faith, was never in compliance with the applicable rule. Further, there were no changed conditions under these circumstances. Therefore, Section 479.23 is inapplicable. As pointed out by Petitioner's Exception 2, to apply this Section

to cases of this type reaches a result not intended by the legislature and ". .

. would allow applicants for sign permits to open a minimum business with a very nominal investment, in an unzoned area just long enough to obtain a sign permit and erect a sign, then cease operations and be assured the sign will remain for a period of five years." Given the aggressive, determined, ingenious and competitive efforts of billboard advertisers, this would lead to abuse of the permitting process, distortion of the legislative intent and violation of the Governor's Agreement committing the State to "effectively control" certain outdoor advertising signs.

In the instant case, Respondent's sign does not have a valid basis for being permitted (see Conclusion of Law #9). Because there never existed at the location where the sign is, an active ongoing business which would be recognized by zoning authorities of this state as an industrial or commercial activity, the sign now is in violation of Section 479.11(2), and Rule Chapter 14-10.09(2), F.A.C.

The Findings of Fact of the Hearing Officer are supported by the record; the Conclusions of Law 1-9 are considered correct with the exception noted above and are made a part of this order. The recommendation is modified to require revocation of the permit and removal of the subject sign within 30 days in accordance with the above reasoning and citations to the record in regard to the exceptions to the Conclusions of Law.

Therefore, it is to be ordered that the sign permit number AJ 666-12 held by the Respondent, Golden Lariat Western Shop, authorizing a sign on the north side of 1-10, .2 miles west of C-69A, facing east, in Jackson County, Florida, be revoked, and the subject sign removed within thirty days of the date of this Final Order.

DONE and ORDERED this 16 day of October, 1984.

PAUL N. PAPPAS

Secretary

COPIES FURNISHED:

William B. Thomas Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Charles M. Wynn, Esquire Pot Office Box 793 Marianna, Florida 32446

Vernon L. Whittier, Jr., Esquire Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 84-000677

Orders for Case No: 84-000677