STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. R. FINDLEY, d/b/a )

PENSACOLA OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0084T

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William

1. Thomas, held a formal hearing in this case on February 14, 1986, in Pensacola, Florida. The transcript was filed on March 10, 1986, and the parties were given 10 days thereafter to submit proposed findings of fact and conclusions of law. These were filed by the Respondent, and its proposed findings of fact have been adopted. Nothing has been received from the Petitioner.

   
   

   APPEARANCES

   
   

   	For	Petitioner:	Mr. C. R. Findley, in pro per. Post Office Box 344 Pensacola, Florida 32594
   58	For	Respondent:	Vernon L. Whittier, Jr., Esquire Haydon Burns Building, Mail Station Tallahassee, Florida 32301-8064

   
   

   By Memorandum of Returned Application dated December 18, 1984, the Department of Transportation notified the Petitioner that his applications for sign permits that had been received on December 3, 1984, were denied. These applications sought permits for a sign on the south side of I-10, 1.3 miles east of SR 87, outside city limits, in

   Santa Rosa County, Florida, facing east and west. The Petitioner's applications were denied because the proposed site was alleged to be in a location without proper zoning for outdoor advertising signs pursuant to Section 479.11, Florida Statutes. Thus, the issue is whether or not the proposed sign site is permittable under the applicable statutes and rules.

   
   

   FINDINGS OF FACT

   
   

   1. Pensacola Outdoor Advertising, applied for state sign permits by applications dated November 29, 1984, for a location on the south side of I-10, 1.3 miles east of SR 87, outside city limits, in Santa Rosa County, Florida, for signs facing east and west. These applications were received in the Department's District Office on December 3, 1984. The Department denied the permit applications by Memorandum of Returned Application dated December 18, 1984, because the sign site was in an area with unpermittable zoning pursuant to Section 479.11, Florida Statutes.

      
      

   2. The Petitioner, who operates Pensacola Outdoor Advertising, contends that his proposed sign site is within 800 feet of a business activity, and that there are three businesses in the area: Clark's Surplus and Recycling, Clark's Flea Market, and Mr. George Atkinson's commercial warehouse. The Petitioner made no on-ground measurements, but used an aerial map and a ruler to make his distance determination. He had not conducted any business with Mr. Clark and did not know of any commercial sales Mr. Clark had made. The Petitioner considered the material located on the Clark premises to be recycling items, but he admits that the average person would consider it junk, and ". . . it would be difficult to tell specifically . . ." that there are two separate and distinct business activities at Mr. Clark's location. The third nearby business is a building owned by a Mr. Atkinson, located on the north side of I-10, across the highway from the Clark property. The Petitioner has not done any business with Mr. Atkinson and does not know what is actually in the building. He has driven by and observed people at the building, but does not know what they were doing.

      
      

   3. Phillip N. Brown, the Department's Outdoor Advertising Inspector, did a field inspection of the proposed sign site and found it to be in an area without any county zoning. The sketch attached to the Petitioner's

      applications shows 1,500 feet between the proposed site and a permitted sign on the south side of I-10. The permits for this sign are currently valid and held by Bill Salter Outdoor Advertising. The Petitioner's permit applications state that there is a distance of 1,500 plus feet to the nearest existing sign. The area where the proposed site is located has several single family trailers located near the interstate right-of-way with nothing else there. It is difficult to see the area due to vegetation. The area where the Salter sign is located is also difficult to see because of vegetation, but a junkyard is visible, on which is material consisting of junk and junk vehicles, bud there is no indication that any other business activity is being conducted there. A fence runs around the west side of the junkyard, and the Salter sign is inside this fence. When the inspector found the alleged business activity to be more than 800 feet from the Petitioner's proposed site, he requested a survey of the area.

      
      

   4. John E. Ferguson, Location Surveyor, Department of Transportation, made a survey of the Petitioner's proposed sign site on the south side of I-10. There is a fence on the west side of the junkyard with junk cars to the east of it. There is a metal sign inside the fence area. From this survey it is established that the distance between the outer limits of the junkyard fence and the proposed sign site is 1,201 feet.

      
      

      CONCLUSIONS OF LAW

      
      

   5. 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 the authority to regulate outdoor advertising signs and issue permits therefor pursuant to the provisions of Chapter 479, Florida Statutes.

      
      

   6. Section 479.11(1), Florida Statutes, prohibits the erection of an outdoor advertising sign within 660 feet of an interstate highway except as allowed by Section 479.111.

      
      

   7. Section 479.111(2), Florida Statutes, allows signs in zoned and unzoned commercial and industrial areas within 660 feet of an interstate highway.

   8. Section 479.01(20), Florida Statutes, defines "unzoned commercial or industrial area" to mean an area in which there are located three or more separate and distinct industrial or commercial uses located within a 1,600 foot radius of each other.

      
      

   9. By Rule 14-10.09(2), Florida Administrative Code, in Section I, 1., B., the unzoned commercial or industrial areas are limited to those lands on the same side of the highway which are within 800 feet of an industrial or commercial activity.

      
      

   10. Section 479.02(1), Florida Statutes, gives the Department of Transportation the duty to determine what are unzoned industrial and commercial areas within the framework of the applicable statutes and rules.

       
       

   11. The location where the Petitioner proposes to place his sign is in an area without any zoning. In order for an area to be designated as unzoned commercial or industrial, it must have three or more separate and distinct industrial or commercial uses located within a 1,600 foot radius of each other. The visibility of the junkyard on the south side of I-10, near where the Petitioner proposes to place his sign, is limited because of vegetation, but it is possible to recognize it as a junkyard from the main traveled way. However, it appears only as a junkyard, and there is not sufficient evidence to determine that more than a junkyard business is being conducted there. Neither is there sufficient evidence to show that the Atkinson building on the other side of the highway is a commercial or industrial activity. Thus, it has not been demonstrated that there are three business activities within a 1,600 foot radius of the Petitioner's proposed sign site.

       
       

   12. In addition, a sign in an unzoned commercial area must be within 800 feet of a visible commercial activity on the same side of the highway. The Petitioner's proposed site is 1,500 feet from a permitted sign which is located inside a fenced junkyard. The distance between the proposed site and the outer limits of this junkyard is 1,201 feet. This distance exceeds the 800 foot requirement, and places the proposed sign site outside of the permittable commercial area.

   13. Consequently the site where the Petitioner proposes to place his sign does not meet the requirements of the statutes and rules to qualify as an unzoned commercial or industrial area, and his sign permit applications should be denied.

RECOMMENDATION

Based upon the foregoing findings of Fact and Conclusions of Law, it is

RECOMMENDED that the applications of C. R. Findley, d/b/a Pensacola Outdoor Advertising, for permits to erect an outdoor advertising sign on the south side of I-10, 1.3 miles east of SR 87, in Santa Rosa County, Florida, be denied.

THIS RECOMMENDED ORDER entered this 3rd day of April, 1986, in Tallahassee, Leon County, Florida.

Officer Hearings

Hearings

WILLIAM B. THOMAS, Hearing

Division of Administrative The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 3rd day of April, 1986.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Mr. C. R. Findley

Pensacola Outdoor Advertising

P. O. Box 344

Pensacola, Florida 3259

Thomas E. Drawdy Secretary

Department of Transportation Hayd6n Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-000084

Orders for Case No: 85-000084