STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4462T

)

LAMAR ADVERTISING COMPANY, )

)

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 23, 1985, in Pensacola, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly.

APPEARANCES

For Petitioner: Maxine F. Ferguson, Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Robert P. Gaines, Esquire

Post Office Box 12950 Pensacola, Florida 32576

By notice dated November 16, 1984, the Department advised the Respondent that its sign located in Escambia County on the east side of I-110, approximately .4 mile north of SR 296, bearing permit number AN498-35, was in violation of Section 479.11, Florida Statutes, and Section 14-10.05(1), Florida Administrative Code. The Department seeks to revoke this permit and remove the Respondent's sign on the grounds that there is an absence of visible commercial activity within the required distance of this sign to qualify the site as an unzoned commercial or industrial area pursuant to Sections 479.11 and 479.111, Florida Statutes, and Section 14-10.05, Florida Administrative Code. Thus, the issue is whether the Respondent's permit should be revoked because the sign location is not within an unzoned commercial or industrial area.

FINDINGS OF FACT

1. On or about June 10, 1977, the Department issued permit number 2740-12 to the Respondent, Lamar Advertising Company, authorizing the erection of a sign on the east side of I-110, .4 mile north of SR 296 in Escambia County, Florida.

   On or about August 7, 1978, this permit was reported lost and the Department issued a replacement tag numbered AN498-35. The latter permit is the subject of this proceeding. Prior to the issuance of the original permit in 1977, the site was field inspected and approved by Department personnel.

   
   

2. The Respondent's representative who submitted the permit application designated on this application that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

   
   

3. The only commercial or industrial activity that was located within 600 feet of the right-of-way of I-110, and within 800 feet of the site where the Respondent's sign was to be erected, was a brick building which had been constructed in 1977 by Bill Salter Outdoor Advertising. This building contains 800 to 1,000 square feet, and it was used as a sketch office by Bill Salter Outdoor Advertising. One employee works inside doing art work, and three salesmen use the office to make telephone calls and pick up messages.

   
   

4. The Salter building has been constructed without windows on the back side, which is the side facing the interstate. This building is not directly on the interstate, but is located on a street back off I-110 in an unzoned area containing houses and trailer homes. This area is residential in nature, and the Salter building is the only business in the immediate vicinity.

   
   

5. The landscape along I-110 where the subject sign is located slopes upward from the interstate to where the Salter building stands, and the area between the interstate and the Salter building is covered with foliage. In the summer months the area between I-110 and the site of the Salter building is almost completely obscured by this foliage, but during the winter when the foliage has thinned a portion of the rear of the Salter building can be seen from the interstate.

   
   

6. There is an area in front of and on the sides of the Salter building, away from the interstate, where cars can be parked. Salesmen, workmen and customers come and go daily, using these areas for parking. However, due to the slope of the ground between the Salter building and I-110, the interstate is at such a downward angle from the building that none of these activities can be seen from I-110. There is no sign on or around the Salter building to indicate that it contains a business, and there is nothing else about either the building or the area to identify the one as a business structure or the other as a commercial area.

   
   

7. In summary, the Bill Salter building houses a business which is located with 660 feet of the interstate, and the subject sign is within 800 feet of this business, but there are no business activities that can be seen from the main- traveled way of I-110. This location is essentially the same now as it was in 1977 when the permit was issued.

   
   

8. In October of 1984, the site was inspected by the Department's Right- of-Way Administrator who determined that the permit had been issued in error because there was no visible commercial activity within 800 feet of the sign. In November of 1984, the Department issued a Notice of Violation advising the Respondent that the subject permit was being revoked because the sign had not been erected in a zoned or unzoned commercial area.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and 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, (1977), 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. 479.111 . . . .

       
       

11. Section 479.111, Florida Statutes, (1977), provides in part:

    
    

    Only the following signs shall be permitted within controlled portions

    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 479.01, Florida Statutes, (1977), sets forth the following definitions:

    
    

    (10) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate, federal-aid primary system, or state

    highway system not zoned by state or local law regulation or ordinance, in which there is located one 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:

    (d) Activities not visible from the main-traveled way.

    (15) "Maintain" means to allow to exist.

    
    

13. Section 14-10.02, Florida Administrative Code provides in part:

    
    

    . . . (T)he department shall effectively control or cause to be controlled,

    the erection and maintenance of outdoor advertising, advertising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .

    
    

14. Section 479.02, Florida Statutes, (1977), provides in part:

    
    

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

       1. Administer and enforce the provisions 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.

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

          
          

15. Section 479.08, (1984), Florida Statutes, provides in part:

    
    

    The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines 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. . . .

    
    

16. Pursuant to these statutes and rules the Department of Transportation has a duty not only to control the erection of outdoor advertising signs along the interstate and federal-aid primary highways, but also to control the continued maintenance of these signs. The statutes further authorize the Department to determine what are unzoned commercial and industrial areas.

    
    

17. Apparently, the Department's inspector who approved the Respondent's application in 1977 did not consider subsection (d) of Section 479.01(10) Florida Statutes, which excludes activities not visible from the main-traveled way from qualifying a site as unzoned commercial. The Department contends now that this permit was thus issued in error, and it seeks to correct this error by revoking the Respondent's permit. Such an error as this is correctable under Section 479.02(1)(c), Florida Statutes, and Section 14-10.02, Florida Administrative Code, which give to the Department the, duty to effectively control the continued existence of signs along controlled highways, and to determine what are unzoned commercial areas.

    
    

18. Accordingly, the Department has reconsidered its issuance of the permit to the Respondent, and has now determined that the subject area is residential in nature, and that the activities in and around the Salter building are not visible from the main-traveled way of I-110, and thus this area may not be recognized as unzoned commercial. The Department's redetermination has a rational factual and legal basis, and is thus not clearly erroneous. Agencies

    are afforded wide discretion in the interpretation of the statutes they administer, and this interpretation should be followed unless it is clearly erroneous. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

    
    

19. Therefore, regardless of whether the Salter building exists within 660 feet of the interstate and within 800 feet of the Respondent's sign, and a portion of the rear of this building can be seen from I-110, or whether the subject application was approved by the inspector and other Department officials and the permits subsequently issued by the Department, the statutory prerequisite for the erection of a lawful sign was not present when the application was submitted. The proposed site was not in a commercial or industrial area within 800 feet of business activities that were visible from the interstate when the Respondent certified on its application that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes. Activities that are not visible from the main-traveled way are excluded by the statutory definitions from qualifying a location as an unzoned commercial or industrial area. Thus, the Department was correct in making its redetermination that there was no visible business activity in the area that would qualify the site as unzoned commercial, and the Respondent's permit may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

20. The Respondent cites a South Carolina case in which the court made an interpretation of the South Carolina outdoor advertising statute that is different from the Department's interpretation of the Florida statutes, and different from the result obtained in this Recommended Order. However, while reasonable minds can differ on what is and what is not a visible business activity, and on what is and what is not an unzoned commercial area, the Florida statutes leave this determination to the Department of Transportation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AN 498-35 held by the Respondent, Lamar

Advertising Company, authorizing a sign located on the east side of I-110, .4 mile north of SR 296 in Escambia County, Florida, be revoked, and the subject sign removed.

THIS RECOMMENDED ORDER entered this 14th day of August, 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 14th day of August, 1985.

COPIES FURNISHED:

Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. Tallahassee, Florida 32301-8064

Robert P. Gaines, Esquire

P. O. Box 12950 Pensacola, Florida 32576

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-004462

Orders for Case No: 84-004462