STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AK MEDIA GROUP, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-4915T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 28, 2000, in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thornton J. Williams, Esquire

Thornton Williams and Associates

215 South Monroe Street, Suite 600-A Tallahassee, Florida 32301

For Respondent: Kelly A. Bennett, Esquire

Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether the Petitioner's applications for two outdoor advertising permits, dated June 1, 1999, and received by the Respondent on June 10, 1999, should be granted or denied.

PRELIMINARY STATEMENT

In applications for outdoor advertising permits dated June 1, 1999, and filed with the Department of Transportation ("Department") on June 10, 1999, AK Media Group, Inc.

("AK Media"), sought permits for two signs to be located on State Road 7 in Palm Beach County, Florida. On July 9, 1999, the Department issued its Notice of Denied Application, in which it stated that the applications were rejected because the proposed signs did not meet spacing requirements and because the site on which the proposed signs were to be erected was in an "un-permittable" land use designation. AK Media timely requested a hearing pursuant to Section 120.569, Florida Statutes (1999), and the Department transferred the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was held on March 28, 2000.

At the hearing, AK Media presented the testimony of Gregory J. Hibbs, a real estate representative employed by Eller Media, f/k/a AK Media Group, Inc. Petitioner's Exhibits 1 through 6 were offered and received into evidence; Petitioner's Exhibit 6 consists of the transcript of the deposition of Clark Turberville, the Department's District Outdoor Advertising Administrator for Palm Beach County, Florida. 1/ The Department presented the testimony of Ralph J. Paciello, Fred

Harper, and Lynn Holschuh, all employees of the Department. The Department did not offer any exhibits into evidence.

Several preliminary matters were resolved at the hearing.

First, on March 27, 2000, the Department filed a Motion to Quash Subpoenas and Motion for Protective Order. A hearing was held on the afternoon of March 27, with counsel for the parties attending by telephone. At that time, the motions were denied on the merits with respect to Mr. Paciello and Mr. Harper, and ruling was reserved with respect to Ms. Holschuh and

Mr. Turberville until the hearing. At the hearing, the motions were denied on the merits with respect to Ms. Holschuh; the motions were denied as moot with respect to Mr. Turberville because the parties agreed to substitute his deposition in lieu of live testimony.

Second, the parties stated at the hearing that they had resolved the "spacing" issue, which was one of the two bases included in the July 9, 1999, denial notice; the parties stipulated that the only issue remaining for resolution was whether the proposed site was "un-permittable." Third, the parties agreed that the 1999 amendments to Chapter 479, Florida Statutes (1999), were appropriately applied to AK Media's applications.

A one-volume transcript was filed with the Division of Administrative Hearings on April 17, 2000, and the parties

timely filed proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999).

2. In the applications received by the Department on June 10, 1999, AK Media sought permits for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the

   proposed location of the monopole is the west side of State Road 7/U.S. 441, 2.4 miles north of Atlantic Avenue in Palm Beach County, Florida, and approximately 57 feet from the State Road 7 right-of-way. AK Media has leased the proposed site from its owner.

3. As a required part of the applications, AK Media submitted two Florida Department of Transportation forms executed on April 12, 1999, by Jon Mac Gillis, Principal Site Planner for Palm Beach County. The current zoning of the

   proposed site was identified on the form as "CG Commercial General," and the designation of the proposed site on the future land use map was identified as "SA", that is, "Special Agriculture." It was further indicated on the form executed by Mr. Gillis that, within the "SA" designation, commercial and industrial uses were the "predominate uses allowed within 660' of the highway adjacent to the proposed site." On May 26, 1999, Palm Beach County issued a Special Permit allowing AK Media to register the proposed billboard.

4. In its Notice of Denial of Application, the Department identified one basis for denying AK Media's applications as follows:

   Site is in un-permittable land use designation. Pursuant to Section 479.111, Florida Statutes, outdoor advertising signs must be located in commercial or industrial zoned or unzoned areas. Section 479.01(3) defines "commercial or industrial zone" as an area "designated predominately for commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to Chapter 163." The land use designation for the subject site is SA.

   
   

5. The Palm Beach County, Florida, Official Zoning District Map in effect at the time of the hearing identified the zoning of the proposed site of the outdoor advertising signs as "CG" (Commercial General).

6. The Future Land Use Atlas of Palm Beach County in effect at the time of hearing designated the proposed site of the outdoor advertising signs as "SA" (Special Agriculture).

7. Palm Beach County's 1989 Comprehensive Plan, as revised December 13, 1999, was in effect at the time of the hearing. "Special Agriculture Uses" are defined therein in pertinent part:

   The following land uses and intensities are allowed in areas designated Special Agriculture where permitted by the terms of the Unified Land Development Code:

   
   

   1. Fruit and vegetable markets and terminals for farm products;

   2. Agricultural production uses including, but not limited to, produce packing plants, poultry and egg production, nurseries, growing, livestock, kennels, training centers and potting soil manufacturing;

   3. Agriculturally related services such as feed and grain stores and farm implement sales and service and fueling areas restricted solely to agricultural activities;

   4. Mining, subject to the limitations;

   5. Uses and structures accessory to a permitted use; and

   6. Limited residential uses as described below,

      1. farm labor quarters and camps;

      2. caretaker's quarters, such as for pump houses;

      3. dwelling quarters and farm residences for bona fide farm operations; or

      4. dwelling units allowed as alternative use.

8. The Palm Beach County Comprehensive Plan defines "Commercial Agricultural Development" as follows: "Agriculture conducted for commercial purposes within the Agricultural Production Plan Category North of L-8 Canal and East of the North Tieback Canal, the AG Reserve Plan Category, and those activities classified as special agriculture."

9. In concluding that AK Media's applications should be denied, the Department's field inspector confirmed the "SA" designation on the Palm Beach County future land use map but disregarded the certification of the Principal Site Planner for Palm Beach County that the proposed site was zoned "GC" and that predominately commercial uses were allowed within areas designated "SA" in the future land use map.

10. The proposed site of the outdoor advertising signs is designated for commercial use in Palm Beach County's future land use map, albeit commercial use related to agriculture, and the site is zoned General Commercial, as shown on Palm Beach County's current zoning map. The proposed site is, therefore, located within a commercial zone.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).

12. As the applicant for permits to erect outdoor advertising signs, AK Media has the burden of proving by a preponderance of the evidence that it has satisfied all of the requirements for obtaining the permits. See Department of Banking and Finance, Division of Securities and Investor

    Protection v. Osborne Stern and Co., 670 So. 2d 932, (Fla. 1996).

13. Outdoor advertising is regulated in Chapter 479, Florida Statutes (1999). Section 479.111, Florida Statutes (1999), provides in pertinent part:

    Only the following [outdoor advertising] signs shall be allowed within controlled portions 2/ of the interstate highway system and the federal-aid primary highway system as set forth in s. 479.11(1) and (2)

    
    

    * * *

    
    

    (2) 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.

    
    

14. Section 479.01, Florida Statutes (1999), defines terms used in Chapter 479. Section 479.01(3), Florida Statutes (1999), was amended by Section 37, Chapter 99-385, Laws of Florida, effective July 1, 1999. As amended, that statute provides:

    "Commercial or industrial zone" means a parcel of land designated for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to chapter 163. If a parcel is located in an area designated for multiple uses on the future land use map of a comprehensive plan and the land development regulations do not clearly designate that parcel for a specific use, the area will be considered an unzoned commercial or industrial area if it meets the criteria of subsection (23).

    
    

15. Based on the findings of fact herein, AK Media has met its burden of proving its entitlement to the permits that are the subject of this proceeding. Although the Palm Beach County future land use map designates the parcel of land on which

    AK Media proposes to erect the signs as "SA", it is clear from the provisions of the Palm Beach County Comprehensive Plan that the activities allowed in areas designated "SA" are considered commercial agricultural uses. The "SA" designation in Palm Beach County's future land use map is, therefore, a designation "for commercial . . . use" as required by Section 479.01(3), Florida Statutes (1999), and as certified by the Principal Site Planner for Palm Beach County. Because the proposed site is designated for commercial use in the future land use map and is specifically zoned for commercial use, the proposed site of the outdoor advertising signs is in a "commercial-zoned" area, as

    that term is used in Section 479.111(2), Florida Statutes (1999). 3/

16. Because AK Media has proven by a preponderance of the evidence that the applications meet the statutory criteria for outdoor advertising permits, the permits requested in the applications filed with the Department on June 10, 1999, should be issued.

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 applications of AK Media, Inc., for permits to erect outdoor advertising signs on the site identified in the applications.

DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2000.

ENDNOTES

1/ At the hearing, counsel for the Department stated that Mr. Turberville had not had a chance to read the deposition transcript but did not waive reading. She requested and was given leave to file an errata sheet after the hearing, if

necessary. In a notice filed on April 12, 2000, the Department advised that Mr. Turberville had no corrections to make in the transcript.

2/ Controlled area" refers to the area within 660 feet of the right-of-way of state or federal roads in an urban area.

Section 479.01(4), Florida Statutes (1999). There is no dispute herein that the subject parcel is within a controlled area.

3/ The proposed site is not an "unzoned" commercial area as defined in Sections 479.01(3) and (23), Florida Statutes (1999), because it is specifically designated for commercial use in Palm Beach County's zoning map.

COPIES FURNISHED:

Thornton J. Williams, Esquire Thornton Williams and Associates

215 South Monroe Street, Suite 600-A Tallahassee, Florida 32301

Kelly A. Bennett, Esquire Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-004915

Orders for Case No: 99-004915