STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3511T

) 84-3512T

CECIL B. DURDEN, ) 84-3513T

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3515T

) 84-3517T

JOHN W. STONE, )

)

Respondent. )

)

RECOMMENDED ORDER

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

Tallahassee, Florida

For Respondent: Charles W. Wynn, Esquire

Marianna, Florida

and

Cathi O'Halloran, Esquire Tallahassee, Florida

A final hearing was held in these cases in Chipley on January 15, 1985. 1/ The cases began when petitioner Department of Transportation (Department), by notices to show cause, charged respondent Cecil B. Durden (Durden) with maintaining three and respondent John W. Stone (Stone) with maintaining two unpermitted and unpermittable signs in Jackson County. At final hearing, it was undisputed that Durden and Stone did not have permits for the signs. The parties then impliedly consented to try the issue whether the signs are permittable as if these were proceedings on applications for sign permits.

Specifically, the primary issue became whether the sign locations in Jackson County are in permittable commercial or industrial zoned areas under Section 479.01(2), Florida Statutes, as amended by Section 1, Chapter 84-227, Laws of Florida (1984), and under Rule 14-10.05(6), Florida Administrative Code.

FINDINGS OF FACT 2/

1. Respondent Cecil B. Durden (Durden) is maintaining three signs within 660 feet of the right of way of Interstate 10 in Jackson County:

   1. One, the subject of Case No. 84-3511T, is located approximately

      0.70 miles east of SR 69;

      
      

   2. The second, the subject of Case No. 84-3512T, is located approximately 4.2 miles east of SR 71; and

      
      

   3. The third, the subject of Case No. 84-3513T, is located approximately 0.56 miles east of C-69-A.

      
      

2. Respondent John W. Stone (Stone) is maintaining two signs within 660 feet of the right of way of Interstate 10 in Jackson County:

   
   

   1. One, the subject of Case 84-3515T, is located approximately 4.3 miles east of SR 71; and

      
      

   2. The second, the subject of Case No. 84-3517T, is located approximately 0.85 miles east of C-69-A.

      
      

3. All five signs are outside city limits and are visible from the main travelled way of parts of Interstate 10 that are open to traffic.

   
   

4. All five signs are located in areas that are either wooded, in pasture or used to cultivate crops; no commercial or industrial activity is visible from the location of any of the signs.

   
   

5. None of the five signs has a tag issued by the Department of Transportation (Department), and none has a permit from the Department.

   
   

6. Neither Durden nor Stone applied for a permit for any of the signs. Had application been made, the Department would have given notice of intent to deny the application. Department personnel told Durden as much.

   
   

7. Jackson County is not zoned, comprehensively or otherwise, in the area of any of the five signs. 3/

   
   

8. Jackson County has adopted a comprehensive plan. But the contents of a comprehensive plan for Jackson County now in effect were not proved; nor was a comprehensive plan for industrial or commercial development in the area of any of the five signs proved. 4/

   
   

9. Durden's sign that is the subject of Case No. 84-3512T and Stone's sign that is the subject of Case No. 84-3515T are within 1000 feet of each other on the same side of Interstate 10.

   
   

   CONCLUSIONS OF LAW

   
   

10. Chapter 84-227, Laws of Florida (1984), to the extent that it amends Section 479.07, Florida Statutes (1983) became effective on July 1, 1984. The amendments to 479.07 also apply to any permit or license which was valid and applicable as of June 30, 1984, but only on January 15, 1985 or when the permit or license expired or was revoked, whichever first occurred. Otherwise, Chapter 84-227 became effective on October 1, 1984. See Section 27, Chapter 84-227. Chapter 479, Florida Statutes, as amended by Chapter 84-227, is now codified as Chapter 479, Florida Statutes (Supp. 1984).

11. In these cases, the Department charged Durden with maintaining three and Stone with maintaining two unpermitted and unpermittable signs. The signs were maintained continuously through January 15, 1985. Therefore, Chapter 479, Florida Statutes (Supp. 1984), applies to the Department's charges.

    
    

12. Section 479.07, Florida Statutes (Supp. 1984) provides in pertinent part:

    
    

    (1) Except as provided in s. 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated used, or maintained, any sign on the State Highway System outside an incorporated area

    or on any portion of the interstate or federal- aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. None of the exceptions provided in Section 479.16, Florida Statutes (Supp. 1984), apply in these cases.

    
    

13. Section 479.105, Florida Statutes (Supp. 1984), provides in pertinent part:

    
    

    (1) Any sign which is located adjacent to the right-of-way of any highway on the State

    Highway System outside an incorporated area or adjacent to the right-of-way on any portion

    of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s.

    479.07(1) having been issued by the department is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

    
    

14. Following the procedures set out in Section 479.105, the Department proved that Durden's and Stone's signs did not have permits. Cf. National Advertising Co. v. Department of Transportation, 418 So.2d 1142 (Fla. 1st DCA 1982). Indeed, there was no dispute as to that fact.

    
    

15. The parties consented, at least implicitly, that Durden and Stone would be allowed to prove entitlement to permits in these proceedings as if they had applied for permits. The parties also consented, at least implicitly, to be bound by the determination in these cases on Durden's and Stone's entitlement to permits for these signs upon payment of proper fees and other ministerial prerequisites for application.

    
    

16. In the application proceedings which these cases have become, Chapter 479, Florida Statutes (1984), applies. See Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980).

    
    

17. In the application cases which these cases have become, Durden and Stone, as applicants, have the burden to prove all the elements of their entitlement to permits for their signs. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

18. Section 479.11, Florida Statutes (Supp. 1984), provides in pertinent part:

    
    

    Certain signs prohibited. --No sign shall be erected, used, operated or maintained.

    
    

    1. Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate highway system, or the federal-aid

       primary highway system except as provided in ss.

       479.111 and 479.16. As previously stated, none of the exemptions provided in Section 479.16 apply in this case.

       
       

19. Section 479.111, Florida Statutes (Supp. 1984), provides in pertinent part:

    
    

    479.111 Certain signs allowed. --Only the following signs shall be allowed within controlled portions of the interstate and federal-aid primary systems as set forth in s. 479.11(1) and (2):

    1. Signs in commercial and industrial zoned or commercial and industrial unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the require- ments set forth in the agreement between the state and the United States Department of Transportation.

    
    

20. Section 479.01(2), Florida Statutes (Supp. 1984), provides that, as used in Chapter 479, Florida Statutes:

    
    

    'Commercial or industrial zone' means an area within 660 feet of the nearest edge of the right-of-way of the interstate or federal aid primary system zoned for commercial or industrial use under authority of state law.

    
    

21. Finally, Section 479.07(10), Florida Statutes (Supp. 1984), provides:

    
    

    Commercial or industrial zoning which is not comprehensively enacted or which is enacted

    primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes

    of this provision, and permits shall not be issued for signs in such areas. The department shall adopt rules within 180 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enacted primarily to permit signs.

    
    

22. The Department has not promulgated any new rules implementing Section 479.07(10), Florida Statutes, as amended by Chapter 84-227. But Rule 14- 10.05(6), Florida Administrative Code, which has been in its present form for years before the effective date of Chapter 84-227, provides in pertinent part:

    State and local zoning actions must be taken pursuant to the State's zoning enabling Statute or Constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures is not recognized as zoning for outdoor advertising control purposes and permits will not be issued for signs in those areas.

    
    

23. In these cases, neither Durden nor Stone proved that Jackson County is zoned commercial or industrial, compre- hensively or otherwise. Nor did they prove that the locations of their signs are designated for commercial or industrial development in any Jackson County comprehensive plan now in effect. 5/

    
    

24. In addition, Section 479.07(9)(a), Florida Statutes (Supp. 1984), provides:

(9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.

2. One thousand feet from any other permitted sign on the same side of the high- way, if on a federal-aid primary highway.

The minimum spacing provided in this paragraph does not preclude the permitting of V-type, back-to-back, side-to-side, stacked, or

double-faced signs at the permitted sign site.

Durden's sign that is the subject of Case No. 84-3512T is within 1000 feet of Stone's sign which is the subject of Case No. 84-3515T; both are on the same side of Interstate 10. Both "applications" should be deemed to have been simultaneously made and considered. Therefore, neither can be granted unless one is withdrawn or unless one or both are modified to create legally sufficient spacing between the two signs. Cf. Rule 14-10.04(1)(c), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that petitioner Department of Transportation:

1. Enter a final order in these consolidated cases finding the three signs belonging to respondent Cecil B. Durden which are the subject of Cases Nos. 84- 3511T, 84-3512T and 84-3513T and the two signs belonging to John W. Stone which are the subject of Case Nos. 84-3515T and 84-3517T to be unpermitted and in violation of Sections 479.07(1) and 479.105(1), Florida Statutes (Supp. 1984); and

2. Remove the signs referred to in the immediately preceding paragraph if they have not been removed already.

RECOMMENDED this 27th day of March, 1985 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985.

ENDNOTES

1/ The cases involving both respondents were consolidated during final hearing when it became apparent that duplicative evidence would be presented against and on behalf of the two respondents.

2/ All parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.

3/ Durden and Stone had the burden to prove that their signs are in areas zoned industrial or commercial to the extent that they seek to rely on such zoning to support their alleged entitlement to permits. See paragraph 8 of the Conclusions Of Law, infra.

They did not meet their burden of proof. Therefore, although Petitioner's Exhibit 3 is hearsay that would not be admissible over objection in a civil action, it is not being used to support a finding of fact. See Section 120.58(1)(b) Florida Statutes (Supp. 1984).

4/ See footnote 3 above.

Durden testified that he understood the comprehensive plan to plan for a strip of commercial development 1000 feet on either side of Interstate 10 where the signs are located between the Apalachicola River and U.S. 231. But his testimony was based on hearsay and cannot be used to support a finding of fact.

Another witness authenticated excerpts from a comprehensive plan located in the Jackson County Courthouse. The excerpts were marked for identification as Respondents' Exhibit 2 and are received in evidence over objection. However, the witness did not establish that the excerpts are from a comprehensive plan which is now in effect. In fact, the excerpts and Respondents' Exhibit 1 would suggest that the comprehensive plan from which the excerpts were taken has not yet been adopted.

In addition, the excerpts state: An additional industrial area has been designated in a 1,000 foot wide area south of a proposed Interstate 10 access

road and between the access road and Interstate 10 at the intersections. The road would stretch from U.S. 231 to the Apalachicola River, except in conservation areas. (Emphasis added.) It was not proved that any of the five signs are located in the area designated as industrial according to Respondents' Exhibit 2.

5/ Since Durden and Stone failed to prove this, there is no need to reach a conclusion of law whether such a designation should be equated with "zoning" under the statutes and rule or whether the statutes and rule would have constitutional infirmities if "zoning" is not equated with such a designation.

COPIES FURNISHED:

Vernon Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32301

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

Cathi O'Halloran, Esquire

P.O. Box 3985 Tallahassee, Florida 32303

Docket for Case No: 84-003511

Orders for Case No: 84-003511