STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1746T

)

MELWEB SIGNS, INC., )

)

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 October 2,1985, in West Palm Beach, Florida. Subsequently, the Respondent submitted proposed findings of fact and conclusions of law which have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Esquire

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

   
   

   For Respondent: Mr. Clyde Welker, Manager

   Melweb Signs, Inc.

   3208 Industrial 31st Street Ft. Pierce, Florida 32450

   
   

   As a witness for Respondent

   
   

   By notice dated April 11, 1985, the Department advised the Respondent, that permit number AM146-10, authorizing a sign on I 95 approximately 4,000 feet south of Orange Avenue in St. Lucie County, Florida, was being revoked pursuant to Section 479.08, Florida Statutes, because the Respondent's application for this permit contained

   information that was not correct. Actually, the Department seeks to revoke the Respondent's permit and remove the subject sign on the grounds that the permitted site is zoned agricultural, not commercial as claimed in the application.

   FINDINGS OF FACT

   
   

   1. The Department issued permit number AM146-10 to the Respondent, Melweb Signs, Inc., on May 2, 1984. This permit authorized the erection of an outdoor advertising sign on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County. A sign was erected pursuant to this permit.

      
      

   2. The Respondent's application for the subject permit represented that the sign site applied for was in an area that was zoned commercial or industrial. The Respondent's manager had inquired of county representatives what the zoning was at the sign site, and was informed that the area was zoned commercial. The Respondent's manager also had a map that showed the area to be zoned commercial or industrial, but this map was not a zoning map. It had been issued by a local canal district.

      
      

   3. When the Respondent's application was filed, the Department's inspector had been shown the map the Respondent's manager had, and when the inspector inquired of the county what the zoning was, she was informed that the area was zoned commercial or industrial. In reliance on the Respondent's map and on the information received from the county, as well as on the Respondent's application, the permit was approved.

      
      

   4. The Respondent had certified on its application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

      
      

   5. Subsequently, the correct zoning for the subject site was brought to the attention of the Department's inspector. The Respondent agrees that the area is actually zoned agricultural (A-I) not commercial or industrial. Thus, the Department issued its notice of intent to revoke the Respondent's permit on April 11, 1985.

      
      

      CONCLUSIONS OF LAW

      
      

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

      pursuant to the provisions of Chapter 479, Florida Statutes.

      
      

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

      Subsection (2) of Section 479.111, Florida Statutes, allows signs in commercial or industrial zoned areas if the area has received a zoning classification.

   8. Section 479.08, 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. . . .

      
      

   9. Since the area where the Respondent's permit application proposed to erect a sign has received a zoning classification, and this classification is agricultural (A-

      I) not commercial or industrial, any sign erected at this site would violate the provisions of Chapter 479, Florida Statutes.

      
      

   10. The Respondent's permit application certified that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes, but it did not. Thus, the Respondent's permit may be revoked pursuant to the provisions of Section 479.08, Florida Statutes, which allow revocation when "the permittee has violated any of the provisions of this chapter."

       
       

   11. The Respondent hired counsel to submit proposed findings of fact and conclusions of law, and in this it is contended that the permit may not be revoked because there was no information in the permit application that was knowingly false or misleading. While it is true that there is no evidence that the Respondent's manager knowingly falsified the application, or knowingly misled the Department, nevertheless the area where the Respondent proposed to put its sign was not zoned commercial or

industrial. Since the area was zoned, and the zoning was agricultural, Chapter 479 does not allow the erection of a sign at the proposed site. Thus, the erection of a sign there by the Respondent violated the provisions of Chapter 479, and the second basis for permit revocation in Section 479.08, Florida Statutes, allows the permit to be revoked.

RECOMMENDATION

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

RECOMMENDED that permit number AM146-10 held by the Respondent, Melweb Signs, Inc., be revoked, and that the sign erected by the Respondent on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County, be removed.

THIS RECOMMENDED ORDER entered this 10th day of December, 1985 in Tallahassee, Leon County, Florida.

Hearings

Hearings 1985.

WILLIAM B. THOMAS

Hearing Officer

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 10th day of December,

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1746T

Respondent's proposed findings of fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted. Nevertheless, none of the Respondent's proposed findings address the provisions of Section 479.08, Florida Statutes, authorizing permit revocation when "the permittee has violated any of the provisions of this chapter."

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301

Gerald S. Livingston, Esquire

P. O. Box 2151

Orlando, Florida 32802-2151

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-001746

Orders for Case No: 85-001746