A. HANCOCK ADVERTISING, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on October 13, 1994 in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Thomas H. Duffy
Assistant General Counsel Department of Transportation Haydon Burns Building, Room 562
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0458
For Respondent: Mark S. Ulmer, Esquire
Biscayne Center, Suite 612 11900 Biscayne Boulevard
Miami, Florida 33181 STATEMENT OF THE ISSUE
The issue in this case is whether an outdoor advertising billboard being constructed by Respondent within the city limits of Hollywood must be removed at Respondent's expense and/or whether a permit can and should be issued for the sign.
PRELIMINARY STATEMENT
This case was initiated when the Department of Transportation ("Petitioner" or the "Department") sent a letter dated July 19, 1994 (the "Transmittal Letter") requesting the Division of Administrative of Hearings ("DOAH") to arrange for "an expedited Administrative Hearing under Section 120.53(5)(e), Florida Statutes, in accordance with the enclosed formal protest and associated documents." The statutory provision cited in the Department's Transmittal Letter is only applicable to the resolution of protests arising from the contract bidding process. However, the Transmittal Letter indicated that the issues in this case were as follows:
Whether E.A. Hancock Advertising constructed a sign without a valid permit from the Department of Transportation in violation of Section 479.11(1), Florida Statutes.
Whether E.A. Hancock Advertising was required to obtain the Department of Transportation's approval to construct an outdoor advertising sign within the corporate limits of the City of Hollywood, Florida.
Whether the property upon which E.A. Hancock Advertising's sign was constructed was properly zoned, allowing the Department of Transportation to approve its construction.
The documents attached to the Transmittal Letter included a letter from an attorney representing E.A. Hancock Advertising ("Hancock") regarding a Notice To Show Cause purportedly issued by the Department on May 16, 1994 in connection with an outdoor advertising billboard under construction at the corner of Hollywood Boulevard and Interstate 95 in Hollywood, Florida. The Notice To Show Cause apparently directed Respondent to remove the sign because it was supposedly erected without a state permit and a permit could not be issued for a sign at the location because of the zoning. The Transmittal Letter to DOAH did not include a copy of the Notice To Show Cause. The Transmittal Letter did include a copy of an application submitted by Universal Outdoor, Inc. dated February 3, 1994 for a sign at the same location and a copy of the Department's denial notice dated February 15, 1994 regarding that application.
The case was assigned to Hearing Officer Susan B. Kirkland who noticed a hearing pursuant to Section 120.57(1), Florida Statutes, for October 13, 1994. Prior to the commencement of that hearing, the case was transferred to Hearing Officer J. Stephen Menton who conducted the hearing as scheduled.
At the commencement of the hearing, a discussion ensued regarding the issues to be resolved in this case and the confusion created by the ambiguities in the Transmittal Letter. Both parties agreed that a timely request for an administrative hearing had been filed in connection with the Department's denial of the application submitted by Universal and a timely request for an administrative hearing had been submitted in connection with the Notice to Show Cause dated May 16, 1994 which directed Hancock to remove the billboard under construction. The parties also agreed that the ultimate issue to be resolved in this case was whether the sign was permitable by the Department at the location where it was being constructed.
At the hearing, Petitioner presented the testimony of Mark Johnson, an inspector for the Department. Petitioner had six (6) Exhibits marked for identification during the course of the hearing. Petitioner's Exhibits 1, 2, 3 and 5 were accepted without objection. Petitioner's Exhibit 4 was withdrawn.
Petitioner's Exhibit 6 was used to refresh the recollection of a witness, but was not formally offered into evidence.
Respondent presented the testimony of Andy Hancock, the president of Respondent, and Leigh Kerr, who was accepted as an expert in planning and zoning. Respondent offered sixteen (16) exhibits into evidence, all of which were accepted. Petitioner's relevancy objections to Respondent's Exhibits 7, 8,
9 and 10 were overruled.
At Petitioner's request, official recognition has been taken of Section 479.07(10), Florida Statutes, and Sections 101.2 of the City of Hollywood Zoning Code in effect until April 6, 1994, and Section 101.4.9 of the City of Hollywood
Zoning Code which became effective on April 6, 1994. At Respondent's request, official recognition has been taken of Sections 479.01(2) and (21), 479.11(1) and (2) and 479.15(1), Florida Statutes, and Rule 14-10.0051, Florida Administrative Code.
A transcript of the proceedings has been filed. Both parties have submitted proposed recommended orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made:
On December 27, 1993, Universal Outdoor, Inc. ("Universal") entered into a twenty year lease agreement with the Greater Hollywood Jaycees pursuant to which Universal was authorized to erect an outdoor advertising sign on property owned by the Jaycees in the general vicinity of the southwest corner of Hollywood Boulevard and Interstate-95 (the "Site") within the city limits of Hollywood, Florida. The site is located at an extremely busy intersection. A railroad track separates the Site from the Interstate. To the immediate south and west of the Site is a city owned golf course.
A building which serves as the Jaycees meeting hall and headquarters is located on the Site. There is a catering business that operates out of the building, at least on a part time basis.
The Jaycees acquired the Site from the City of Hollywood on or about December 15, 1965. As best can be determined from the evidence in this case, the Site was owned by the government before it was acquired by the Jaycees.
After securing the lease from the Jaycees, Universal applied to the City of Hollywood for a city building permit (the "Building Permit") to construct an outdoor advertising sign on the site. The city issued the requested Building Permit on February 2, 1994.
The Hollywood City Commission, as well as the City's Building and Zoning Department, had to approve the issuance of the Building Permit. In deciding to issue the Building Permit, the City Commission and its Building Department apparently concluded that a sign was not inconsistent with the zoning for the Site.
On or about February 3, 1994, Universal submitted an application (the "Sign Application") to the Department for a state Outdoor Advertising Sign permit for the Site.
The Department denied the Sign Application in a notice dated February 15, 1994 (the "Denial Notice") stating that the Site was "in unpermitable zoning."
At some point after the Sign Application was filed with the Department, Universal assigned all of its interest and rights under the lease, the Building Permit and the Sign Application to Hancock. The transfer apparently occurred sometime around the end of February.
The circumstances and conditions of the transfer of interest from Universal to Hancock are not entirely clear. The president of Hancock is the
brother of one of the principals of Universal. Thus, there is some question whether the transfer was an arms-length deal. At one point during the hearing, Hancock suggested that it never received formal notification of the Department's denial of the Sign Application. However, the evidence is clear that Hancock was aware when it obtained an interest in the Site that a state permit was necessary and that a hearing had been requested in connection with Universal's Sign Application.
The building permit obtained from the City of Hollywood was apparently valid for only a limited time. In order to obtain a building permit for a sign, Hancock claims that the City of Hollywood required the permit applicant to make a donation of $20,000 to the Hollywood Boys Club. It is not clear when or whether such a payment was made by either Universal or Hancock.
As noted in the Preliminary Statement above, the parties have stipulated that a timely request for an administrative hearing was submitted in connection with the Denial Notice. However, it does not appear that any case involving Universal was referred to DOAH. In any event, it is clear that no hearing was scheduled to be conducted on the denial of the Sign Application prior to the date that the Building Permit was to expire.
Faced with the imminent expiration of the Building Permit and convinced that the City had correctly determined that the zoning allowed the sign, Hancock proceeded with construction of the sign beginning in approximately the end of April.
An inspector for the Department noticed the sign under construction and issued a Notice of Violation on May 2, 1994 for erecting the sign without an Outdoor Advertising Permit from the Department. Hancock promptly halted all construction activity.
At the time the Sign Application was filed with the Department in February, the Site was zoned "OS" by the City of Hollywood. The "OS" designation is a for an "open space district".
The "OS" designation for this parcel appears to have been an error since the existing uses are inconsistent with that designation.
The Department denied the Sign Application because the Site was not specifically zoned either industrial or commercial. In reaching this determination, the Department did not confer with the City of Hollywood nor did it make any investigation to determine what uses were permitted in the "OS" zoning district. While the City Zoning Code included certain areas specifically designated "commercial" and "industrial," it is not clear that the city intended these terms to coincide with the use of the terms in Chapter 479, Florida Statutes.
"Commercial" is defined in the City Zoning Code as "any activity where there is an exchange of goods or services for monetary gain. . ." The "OS" designation allowed a number of uses which arguably fell within this definition, including camp grounds, cemeteries, golf courses, horse farms, riding stables and other similar uses.
On or about April 6, 1994, the City of Hollywood passed four ordinances which cumulatively had the effect of repealing the City's prior zoning code and replacing it with a new code. There is some confusion regarding the applicable zoning for the Site under the new Zoning Code. The City's
Official Zoning Map reflects that the property was rezoned "GU", which is a government use district. The adjoining golf course, which is publicly owned, is also zoned "GU". The City Planning Department has acknowledged that the "GU" designation is only applicable to government-owned property. Such designation is clearly not applicable to this Site. Furthermore, the default zoning of "RS- 1" (single family residential) is not consistent with the subject property's comprehensive land use plan designation and is inconsistent with the present use of the property.
As a result of the ambiguities resulting from the newly passed zoning ordinances, the Site should be treated as unzoned as of April 6, 1994.
There is at least one commercial use on the same side of the Interstate within 800 feet of the Site. In addition, there are more than three separate commercial uses within 1600 feet of the Site, each visible from the main traveled way, that are within 1600 feet of each other and within 600 feet of the right of way of the adjacent Interstate. Consequently, the Site qualifies as a "commercial-unzoned" area as defined in Chapter 479, Florida Statutes.
Only the City Commission has the power to rezone property and, as of the date of the hearing in this matter, no such action had been taken with respect to the Site.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes (1993).
The Department is authorized to enforce the restrictions on outdoor advertising in the controlled area of Interstate 95 pursuant to Chapter 479, Florida Statutes. The "controlled area" is defined as "660 feet or less from the nearest edge of the right-of-way of any portion of the State Highway System, interstate or federal-aid primary system. . . ." Section 479.01(3), Florida Statutes. Outdoor advertising signs in the controlled area must have permits from the Department unless specifically exempted by law. Section 479.07, Florida Statutes.
As set forth in the Preliminary Statement, the manner in which this case was referred to DOAH is confusing. The parties have stipulated that a timely request for hearing was submitted in connection with the denial of the Sign Application submitted by Universal. All rights and interests to that Application were subsequently transferred to Hancock. A timely request for hearing was also submitted with respect to the Notice to Show Cause issued by the Department on May 16, 1994. At the outset of the hearing, the parties agreed that the issue to be resolved in this case was whether the Department could and/or should issue a permit for a sign at the Site. In resolving this issue, it is incumbent upon Hancock to prove its entitlement to the permit. See, Department of Transportation v. J. W. C. Corporation, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
During the hearing and in its proposed recommended order, the Department repeatedly pointed out that Hancock began construction of the sign without a permit from the Department. There is no dispute over this issue. Because of the unique facts and circumstances of this case and in view of the discussion that took place at the outset of the hearing regarding the nature of
this proceeding, it is concluded that Hancock's initiation of the construction without a permit is irrelevant to the fundamental issue to be resolved. The construction initiated by Hancock without an appropriate state permit was undertaken at its peril. See, Department of Transportation v. Durden, 471 So.2d 1271 (Fla. 1985). If a permit cannot be issued, Hancock will have to remove the sign at its expense. The issue to be resolved in this case is whether a permit can and should issue.
Section 479.11(2), Florida Statutes, provides that the following signs are allowed along an Interstate highway:
Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial- unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation.
Section 479.01(2), Florida Statutes, provides:
"Commercial or industrial zoned" 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.
Rule 14-10.0051(3), Florida Administrative Code, provides:
Criteria for Signs in Unzoned Commercial and Industrial Areas.
Where a local jurisdiction has not zoned in accordance with statutory authority the following criteria will be applied by the Department to determine whether such area is an unzoned commercial and industrial area:
An unzoned commercial and industrial area is an area as defined in Section 409.01(20), Florida Statutes (1985), in which there are three or more commercial or industrial activities visible from the main traveled way.
The industrial or commercial uses must be located:
Such that at least one of the commercial or industrial uses is located on the same side of the highway as the sign location;
Within 660 feet from the nearest edge of the right-of-way; and
Within 1600 feet of each other.
The sign must be located within 800 feet of one of the commercial or industrial uses on the same side of the highway as the sign.
The Department suggests that only the zoning in effect at the time Universal submitted its Sign Application in February 1994 should be considered in resolving this case. This contention is rejected. A hearing conducted pursuant to Section 120.57(1), Florida Statutes, is a de novo proceeding. See,
Department of Professional Regulation, Board of Medicine v. Mata, 561 So.2d 364 (Fla. 1st DCA 1990). A recommended order entered as a result of a proceeding conducted pursuant to Section 120.57(1) should be based upon all of the evidence submitted during the hearing, including consideration of any circumstances that may have changed after the request for hearing was submitted. See, Mata, supra. Accordingly, it is concluded that the zoning in effect at the time of the hearing should be applied in this case. 1/
The evidence in this case indicates that the Site was over-looked in the adoption of the new city Zoning Code and is incorrectly reflected on the City Zoning Map as "GU." Furthermore, the default zoning to single family residential is clearly not applicable to this Site. Thus, it appears that the Site has slipped through the cracks of the City's new Zoning Code. In view of these circumstances, the most appropriate way to treat this property is to view it as unzoned commercial. Applying the criteria set forth in Rule 14- 10.0051(3), Florida Administrative Code, a sign on this Site is permissible pursuant to Section 479.111(2), Florida Statutes. This result is consistent with the City's apparent recognition of the Site as a commercial location when it issued the Building Permit for the sign.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order
granting the application for a state Outdoor Advertising Sign permit for the Site.
DONE AND ENTERED this 13th day of January 1995 in Tallahassee, Leon County, Florida.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995.
ENDNOTE
1/ Both parties have had a full opportunity to argue the significance of the pre-April 6, 1994 Zoning Code and the post-April 6 Zoning Code. It would be a great waste of time and money on the part of all concerned to ignore the new zoning code. Even if the prior zoning code is deemed to be controlling, the sign is arguably permittable since the "OS" zoning for the site was apparently an error. Hancock's suggestion that signs should be allowed in an "OS" district because some commercial uses as defined in the zoning code are allowed is less persuasive.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4061T
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
Addressed in the Preliminary Statement and adopted in substance in Findings of Fact 6.
Adopted in substance in Findings of Fact 1, 2 and 6.
Adopted in substance in Findings of Fact 14.
Subordinate to Findings of Fact 1 and 16.
Adopted in substance in Findings of Fact 4 and 5.
Adopted in substance in Findings of Fact 8.
Adopted in substance in Findings of Fact 9.
Subordinate to Findings of Fact 9.
Subordinate to Findings of Fact 18.
Rejected as unnecessary.
Rejected as unnecessary.
Subordinate to Findings of Fact 10 through 12.
Adopted in substance in Findings of Fact 13.
Subordinate to Findings of Fact 9.
