STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE INNS EAST, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-3739T

) DEPARTMENT OF TRANSPORTATION, )

)

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 February 7, 1984, in Monticello, Florida. The transcript was received on February 25, 1985, and the parties thereafter submitted proposed findings of fact and conclusions of law. These have been considered. Where not adopted and incorporated herein, they were found to be subordinate, cumulative, immaterial or unnecessary, or not supported by the weight of the evidence, and have been rejected. Nevertheless, a ruling has been made on each either directly or indirectly.

APPEARANCES

FOR PETITIONER: Terrell C. Madigan, Esquire

David D. Eastman, Esquire Post Office Box 669 Tallahassee, Florida 32302

FOR RESPONDENT: Philip S. Bennett, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

Thy letter dated September 13, 1984, the Department returned the Petitioner's applications for outdoor advertising permits unapproved, contending that there had been a change in the County land use plan so as to allow for the erection of advertising signs. The Petitioner requested an administrative hearing to show that Jefferson County is a zoned county, and that this zoning was not enacted primarily to permit outdoor advertising signs.

FINDINGS OF FACT

1. Jefferson County has established comprehensive zoning for the county pursuant to its Development Code which became effective on April 1, 1983. This code provides a system of land use regulation which includes comprehensive zoning of commercial uses by a category called "Site Particularly Suited for Economic Activity."

   
   

2. The commercial zone allows for one of three types of employment centers, namely, Type 1-5, Type 6-20, and Type 21, which are commercial

   enterprises or firms distinguished by the number of employees in a building or group of buildings at a particular location. Type 6-20 and Type 21 employment centers are only allowed in a "Site Particularly Suited for Economic Activity."

   
   

3. Section 1 of Article 25 of this code allows outdoor advertising visible from an arterial highway to be located in one of the "Sites Particularly Suited for Economic Activity" as defined in Article 26.

   
   

4. Section 2 of Article 26 of the code states that Economic Activity refers to Type 6-20 and Type 21 employment centers.

   
   

5. The Petitioner, by its application for outdoor advertising permits, seeks to erect signs on the south side of I-10, .6 mile west of State Road 59 in Jefferson County, facing east and west. This site is in a Type 1-5 employment center, not a Type 6-20 or a Type 21 employment center, as required by Article

   26 of the code. This site is also within 660 feet of the right-of-way of Interstate 10. It is without commercial activity, and is vacant land at the present time.

   
   

6. On May 7, 1984, the Petitioner made an application to the Jefferson County Planning Commission for a change of land use, or variance, and listed as its purpose "Outdoor Advertising." On July 12, 1984, the Jefferson County Planning Commission approved the variance as applied for on the property which is the subject of this proceeding.

   
   

7. Thereafter, on September 11, 1984, the Petitioner applied with the Department of Transportation for outdoor advertising permits at the subject location. This application was denied by the Department on September 13, 1984.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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.

   
   

9. Section 478.11(1), Florida Statutes, provides as follows, in part:

   
   

   No sign shall be erected, used, operated, or maintained:

   
   

   1. Within 660 feet of the nearest edge of the right-of-way of any portion of the inter- state highway system or the federal-aid primary highway system, except as provided in ss. 479.11. . . .

      
      

10. Section 478.111, Florida Statutes, provides as follows, in part:

    
    

    Only the following signs shall be allowed within controlled portions of the interstate highway system . . . as set forth in s.

    479.11(1). . . .

    * * *

    (2) Signs in commercial-zoned and industrial- zoned areas or commercial-zoned and industrial-

    unzoned areas and within 660 feet of the nearest edge of the right-of-way. . . .

    
    

11. Section 478.07(10), Florida Statutes, provides as follows, in part:

    
    

    (10) Commercial or industrial zoning . . .

    which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this pro- vision, and permits shall not be issued for signs in such areas. . . .

    
    

12. The land use provided under the Jefferson County Development Code did not allow outdoor advertising signs because the site where the signs were proposed to be erected was in a Type 1-5 employment center, rather than in a Type 6-20 or a Type 21 employment center.

    
    

13. The Jefferson County Planning Commission granted the Petitioner's application for a variance, to change the permissible land use so as to allow outdoor advertising. The sole purpose as stated in the application for the variance was to allow for an outdoor advertising structure.

    
    

14. Thus, the zoning has been changed primarily to permit the Petitioner's outdoor advertising signs, and this may not be recognized as proper zoning for outdoor advertising purposes by the Department, nor may the Department issue permits for signs in such an area.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Seminole Inns, Inc., for permits to

erect outdoor advertising signs on the south side of Interstate 10, .6 mile west of State Road 59 in Jefferson County, Florida, facing east and west, be denied.

THIS RECOMMENDED ORDER entered this 22nd day of March, 1985 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 22nd day of March, 1985.

COPIES FURNISHED:

Terrell C. Madigan, Esquire David D. Eastman, Esquire

P. O. Box 669

Tallahassee, Florida 32302

Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003739

Orders for Case No: 84-003739