STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-580T

)

D & H OIL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing in the above styled matter was held on August 25, 1976 in Room 314 of the Federal Building, Pensacola, Florida, before assigned Hearing Officer Delphene C. Strickland, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: James E. Moore, Esquire

Post Office Box 746 Niceville, Florida

ISSUE

Whether a sign owned by D & H Oil Company located along Interstate 10 approximately 1.1 miles East of State Road 81 bearing the copy "Spur" is in violation of the setback requirements set out in Section 479.11(1), Florida Statutes, and in violation of the permit requirements set out in Section 479.07(1) and (6), Florida Statutes.

INTRODUCTION

The Petitioner contends that the subject sign is in violation of the setback and permit requirements of Chapter 479. It contends Respondent is in violation of the state and federal statutes, policies, rules and regulations and that the zoning is invalid as "strip zoning" passed for the sole purpose of erecting signs along the Federal Aid Primary System.

Respondent contends that the sign is within the city limits of the Town of Ponce de Leon; and therefore, the setback requirements do not apply inasmuch as the area in question is zoned commercial and out of the regulatory jurisdiction of the State.

FINDINGS OF FACT

1. Respondent D & H Oil Company's sign is located forty- three (43) feet from the nearest edge of the right-of-way of Interstate 10 (I-10) and no permit is affixed to the subject sign.

   
   

2. The sign in question is located within the extension of the city boundaries of Ponce de Leon, Florida as extended by ordinance drawn in 1970 and duly filed in 1975. The Town of Ponce de Leon adopted the comprehensive zoning ordinance which authorized use of business signs in commercial areas. An area north of I-10, Section 27, Township 4 North, Range 17 West was designated a commercial area.

   
   

3. The Respondent D & H Oil Company constructed their sign in this zoned area which was within forty-three (43) feet of the nearest edge of the right-of- way of I-10, and applied to the Petitioner Florida Department of Transportation for a permit for the subject sign. The Petitioner denied the request for the reason that the sign was erected in violation of the setback requirements of Chapter 479, Florida Statutes.

   
   

4. The Respondent D & H Oil Company did not obtain a permit before erecting the sign and it is within the area presently described as the Town of Ponce de Leon, Florida.

   
   

5. The Ordinance filed with the Secretary of State in December of 1975 authorized use of business signs in commercial areas. The area north of I-10 in Section 27, Township 4 North, Range 17 West was designated as a commercial area, together with other areas along the highway, and the sign of Respondent is erected within that area.

   
   

6. The areas zoned commercially by the Town of Ponce de Leon stretches several miles along both sides of the right-of-way of I-10 and contains no commercial or industrial structures other than outdoor advertising signs.

   
   

7. The Town of Ponce de Leon has not submitted to the Administrator of Outdoor Advertising, State of Florida Department of Transportation, its zoning regulations which control outdoor advertising, and the State of Florida Department of Transportation has not notified the Federal Highway Administrator that there has been established within such area regulations which are enforced with respect to the size, lighting and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and customary use. Customary use is use consistent with that use regulated statewide by Chapter 479, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Legislature of the State of Florida passed the following statutes which were duly signed by the Governor and filed:

   
   

   "Section 479.02 Enforcement of provisions by department.- It shall be the function and duty of the department to:

   1. Administer and enforce the provisions of this chapter including, but not limited to, exe- cuting agreements in conjunction with the governor in accordance with title I of the Highway Beauti-

      fication Act of 1965 and Title 23, U.S. Code;

   2. Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial area;

   3. Determine unzoned commercial and industrial areas; and

   4. Regulate signs relating to food, lodging, camping, vehicle service, and attractions, subject to current federal regulations.

      
      

      Section 479.025 Execution of agreement; construction moratorium.- The Governor is authorized to negotiate and execute an agreement as described in s479.02, which said agreement shall be effective upon execution. The agreement shall be considered for ratification by the Legislature at its next regular session and no signs shall be removed under this chapter and the agreement until the agreement is ratified. However, there is hereby declared to be a moratorium on the construction of any signs declared or by said agreement to be unlaw- ful except in commercial or industrial zoned areas until such agreement is ratified by the Legislature."

      
      

9. Pursuant to these statutes, there was an agreement made and entered into between the United States of America, represented by the United States Department of Transportation, acting by and through the Federal Highway Administrator, and the State of Florida, acting by and through the Governor, which was entered into on the 27th day of January 1972 and was signed by F. C. Turner, Federal Highway Administrator, and Reubin O'D. Askew, Governor of the State of Florida. This agreement was ratified by the Legislature by Senate Concurrent Resolution Number 657 and filed in the office of the Secretary of State on March 2, 1972.

   
   

10. The agreement was drawn "for the purposes of carrying out national policy relative to control of outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways and the Federal Aid Primary System, as authorized by Chapter 479, F.S., entitled 23, Section 131, United States Code. Section 570.708, Code of Federal Regulations, which appears in Federal Register, Volume 40, Number 180, pages 42846 and 42847, provides:

    
    

    "(b) State and local zoning actions must be taken pursuant to the State's zoning enabling statute or constitu- tional authority and in accordance therewith. Action which is not part of comprehensive zoning and is created

    primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes."

    
    

    "(d) A zone in which limited commercial or industrial activities are permitted as an incident to other primary land

    uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes."

11. The Federal Highway Administration's policy considerations behind the promulgation of the above quoted rule is stated on Page 42843 of Volume 40, Number 180, of the Federal Register:

    
    

    "The law provides signs may be allowed in commercial and industrial zones.

    Sections 750.708(b) and (d) are essential to assure the recognition of only bona fide commercial and industrial zones, rather than rural or residential zoning classifications or attempts to circumvent the intent of Congress."

12. Section 3. State Control, Page 6 of the Agreement, supra, states: "The state hereby agrees that in all areas within

    the scope of this agreement, the State shall effec- tively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effec- tive date of this agreement, other than those adver- tising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria:

    
    

    A. In zoned commercial and industrial areas, the State may notify the Administrator as notice of effective control that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use."

    
    

13. Thus, local units of government, including the Town of Ponce de Leon, must submit their zoning regulations to the Florida Department of Transportation which is charged with the enforcement of all laws and rules involving outdoor advertising for its review so that it in turn may notify the Federal Highway Administrator that there has been established within the zoned areas enforceable regulations consistent with the state laws and the Highway Beautification Act.

RECOMMENDATION

Require the Respondent D & H Oil Company to remove the subject sign unless it can show within thirty (30) days from date hereof that the area in which the sign is located is in a zoned commercial and industrial area certified by the Florida Department of Transportation to the Federal Highway Administrator that there has been established with such area regulations which are enforced wish respect to the size, lighting and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use.

DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

James E. Moore, Esquire Post Office Box 746 Niceville, Florida

Mr. O. E. Black, Administrator Outdoor Advertising Section

Florida Department of Transportation Hayden Burns Building

Tallahassee, Florida 32304

Mr. J. E. Jordan

District Sign Coordinator Post Office Box 607 Chipley, Florida 32428

Docket for Case No: 76-000580

Orders for Case No: 76-000580