STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-0181T

)

FUQUA & DAVIS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in April of 1983 in Chipley, Florida by Stephen F. Dean, assigned Hearing Officer, of the Division of Administrative Hearings. The Recommended Order in this cause was delayed first while the Respondent initiated a collateral rule challenge and, subsequently, while a related case was on appeal. It was not until the summer of 1984 that the Department of Transportation requested that the Recommended Order be entered. Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings are not contained herein, they are rejected as being either not supported by competent substantial evidence, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.

APPEARANCES

For Petitioner: Charles Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

For Respondent: James J. Richardson, Esquire

Post Office Box 1838 Tallahassee, Florida 32302

ISSUES

The Administrative Complaint in this cause charges that the subject sign violates Sections 479.071 and 479.021(a), Florida Statutes, and Rule 14-10.09, Section 3, Florida Administrative Code, which is the same as Rule 14- 10.06(b)(2)(b), Florida Administrative Code supra. The Respondent admits ownership of the-outdoor advertising structure and that it does not bear a tag as required by Chapter 479, Florida Statutes; however, the Respondent asserts that the sign in question qualifies as an exception and is entitled to a tag pursuant to the provisions of Section 479.111, Florida Statutes. The Petitioner asserts that the sign does not qualify for a tag and stipulates that had the Respondent applied for a tag that said application would have been denied. The Respondent also contends that the sign is exempt from operation of the outdoor advertising law in all respects pursuant to the provisions of Section 479.16(1),

Florida Statutes. Based upon the foregoing, the following issues of fact are raised:

1. Is the subject sign an on premises sign for purposes of the exemption stated in Section 479.16(1), Florida Statutes, and

   
   

2. Is the sign located in an unzoned commercial or industrial area as defined by Section 479.111(2) and Rule 14- 10.06(b)(2)(b), Florida Administrative Code, and

   
   

3. Does the subject sign meet the spacing requirements set forth in Rule 14-10.06(b)(2)(b), Florida Administrative Code?

FINDINGS OF FACT

The parties stipulated to the facts as found in paragraphs 1 through 9 below.

1. The subject advertising structure is an advertising sign as defined by Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code.

   
   

2. The subject sign is located in Jackson County, Florida.

   
   

3. The subject sign is not within the corporate city limits of any city or town.

   
   

4. The subject sign is within 660 feet of Interstate 10.

   
   

5. The subject sign is owned by the Respondent, Fuqua & Davis, Inc., a Florida corporation.

   
   

6. The subject sign does not have a permit as required by Chapter 479, Florida Statutes.

   
   

7. The Petitioner, Department of Transportation, would not issue a permit as required by Chapter 479, Florida Statutes, for the subject sign.

   
   

8. There is no zoning in Jackson County, Florida.

   
   

9. Interstate 10 is an interstate highway as defined in Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, and said interstate highway was open for vehicular traffic at the time sign was erected.

   
   

10. The subject sign can be seen from the main traveled way of I-10.

    
    

11. The subject sign is located at the interchange of State Road 69 and Interstate 10. In this location, there are several commercial enterprises. These businesses include Fuqua Shell Station, Golden Lariat Western Wear Shop and Branch's Phillips 66 Station. The sign is located on a farm within the interchange.

    
    

12. The area surrounding the interchange of State Road 69 and Interstate

    10 in which the sign is located is an unzoned commercial area. This finding is

    based upon the testimony of a real estate appraiser together with the businesses mentioned in paragraph 11 above, which are located in this area. The highest and best use for property adjoining an interstate interchange is commercial and its evaluation to fully commercial usage begins from the time an interstate is built.

    
    

13. The location of the subject sign is identified on Petitioner's Exhibit

    1 to Cases #81-181T and 80-796T an aerial photograph. The subject sign is located adjacent to an interchange on an interstate highway. It is not located on the premises of the business advertised. A diesel pump is located within 30 feet of the sign; however, the pump and sign are over 500 feet away from and on the opposite side of SR 69 for the advertised business on non-contiguous property.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Department of Transportation regulates outdoor advertising pursuant to the provisions of Chapter 479, Florida Statutes. This Recommended Order is entered pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

15. The Administrative Complaint in this case asserts that the Respondent's sign is in violation of Chapter 479, Florida Statutes, because it fails to bear the required tag and that such tag could not be issued to the Petitioner for the sign because it violates the spacing requirements set forth in Rule 14- 10.06(b)(2)(b), Florida Administrative Code. The Respondent asserts that the subject sign is entitled to the required permit pursuant to the exception in Section 479.111, Florida Statutes. Section 479.111, Florida Statutes, permits signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to the agreement established by Section 479.02, Florida Statutes. The agreement established pursuant to Section 479.02, Florida Statutes, includes the provisions of Rule 14- 10.06(b)(2)(b), Florida Administrative Code. Therefore, the subject sign must not only be within a zoned commercial or industrial area or an unzoned commercial or industrial area, but also must conform to certain spacing requirements. The spacing requirements of Rule 14-10.06(b)(2)(b), Florida Administrative Code, provide that no structure may be located adjacent to or within 500 feet of the widening of the highway for an interchange, intersection at grade, or safety rest area. The aerial photograph (Petitioner's Exhibit 1) clearly shows that the subject sign is adjacent to the interchange and, therefore, does not meet the requirements for an exception to Section 479.111, Florida Statutes.

    
    

16. The Respondent also asserts that the subject sign qualifies for the on-premises exception as set forth in Section 479.16(1), Florida Statutes. Although the evidence presented reflects that there is a diesel pump selling non-tax-paid diesel fuel located within 30 feet of the subject sign, the sign and pump are located over 500 feet from and across SR 69 from the business on non-contiguous property. Although sales of such fuels were made according to sales receipts introduced at the hearing, it is concluded as matter of law that Section 479.16(1), Florida Statutes, does not exempt the subject sign from regulation and the requirement to have a tag because the property is non- contiguous.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Final Order of the Department be issued requiring removal of the sign within thirty (30) days by the Respondent.

DONE and ORDERED this 20th day of December, 1984 in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Charles Gardner, Esquire Department of Transportation Haydon Burns Bldg., MS-58 Tallahassee, Florida 32301

James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Mr. Paul Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO: 81-0181T

FUQUA & DAVIS, INC.,

Respondent.

/

FINAL ORDER

The record in this matter has been reviewed along with the Recommended Order of the Hearing Officer. Said order is considered substantially correct in fact and in law, is adopted and made a part hereof, copy attached, and

IT IS ORDERED that the Recommended Order of the Hearing Officer is adopted in its entirety and that the Petitioner remove its high-rise sign located in the northwest quadrant in the interchange area of State Road 69 and I-10 within thirty (30) days of the date of this order.

DONE and ORDERED this 7th day of February , 1985.

PAUL N. PAPPAS, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FL 32301-8064

The following is required by statute to be included in all final orders: Judicial review of agency final orders may be pursued in accordance with

Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District court of Appeal should be accompanied by the filing fee specified in the Section 35.22(3), Florida Statutes.

Copies furnished to:

Stephen F. Dean, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Charles Gardner, Esquire Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32301-8064

James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Outdoor Advertising, DOT 605 Suwannee Street, MS 24

Tallahassee, Florida 32301-8064

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AGENCY AMENDED FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH NO.: 81-0181T

FUQUA & DAVIS, INC.,

Respondent.

/

AMENDED FINAL ORDER

The Record in this case has been reviewed by the Florida Department of Transportation (FDOT) in light of 1984 amendments to Section 479.16(1), Florida Statutes, as ordered by First District Court of Appeal in Fuqua & Davis, Inc. v. Department of Transportation, 490 So. 2d 1010 (Fla. 1st DCA 1986). References to the transcript will be made by the use of abbreviation "TR" followed by the appropriate page number.

PROCEDURAL MATTERS

1. By notice issued December 3, 1980, (Case No. BF-200 and DOAH No. 81- 181T), FDOT advised the Respondent that its sign located along I-10 in Jackson County was in violation of Sections 479.07 and 479.11, Florida Statutes, and Rule Chapter 14-10, Florida Administrative Code.

   
   

2. Pursuant to Chapter 120, Florida Statutes, the case was heard in formal hearing conducted by the Division of Administrative Hearings in April, 1983.

   
   

3. By Final Order issued by FDOT on February 7, 1985, the FDOT ordered that the sign be removed.

   
   

4. Fuqua & Davis, Inc. filed timely notice of administrative appeal to the First District Court of Appeal.

   
   

5. A Motion for Stay was granted and the enforcement of the Final Order was stayed until the conclusion of the appellate proceeding for the case.

   
   

6. Three similar cases were consolidated for appeal.

   
   

7. In Fuqua & Davis, Inc., supra, the Final Order in Appellate Case No. BF-201 was affirmed and the Final Order in Appellate Case No. BE-362 and the

   Final Order in Appellate Case No. BF 200 were reversed and remanded for entry of a revised final order by FDOT.

   
   

   THE ISSUE AS TO REMOVAL OF THE SIGN

   
   

8. Upon remand, for determination of whether the sign should be removed, the issue is limited to the following:

   
   

   Whether the sign structure being located within 500 feet of an interstate highway interchange is entitled to an "on-premises" exemption pursuant to the 1984 statutory amendment of Section 479.16(1) Florida Statutes or pursuant to Rule 14-10.006(b), Florida Administrative Code.

   
   

   This case was initiated under Rule 14-10.06(1)(b)2.b., which was subsequently amended and renumbered as 14-10.006(1)(b)5. (effective 1/01/86) while retaining the same meaning relative to the instant case.

   
   

   FINDINGS OF FACT

   
   

9. The Findings of Fact and Conclusions of Law, except as modified herein, of the Recommended Order are adopted and incorporated by reference, copy attached.

   
   

10. In Finding of Fact Number 11 the Hearing Officer stated that the subject sign is located at the interchange of State Road 69 and Interstate 10. In Finding of Fact Number 13, the Hearing Officer found the subject sign adjacent to the interchange on the interstate highway. Petitioner's Exhibit 1, an aerial photograph, clearly depicts the location of the sign to be within the area of land within 500 feet of the interchange. (TR: 10, 11, 18-24)

    
    

11. The sign advertises the Shell logo at a structure height of approximately seventy feet above ground. (TR: 12) The Shell filling station business is not located at the sign site. The sign is over 500 feet away and across State Road 69 from the advertised business on noncontiguous property. (Petitioner's Exhibit 1) A lone non-tax diesel fuel pump is within 30 feet of the sign. The Hearing Officer found that the sign is standing on land not occupied by the business advertised.

    
    

12. The filling station site has no diesel fuel pump (TR: 35, 41) Motor vehicles which operate on the highway must purchase tax diesel fuel. The lone diesel fuel pump at the sign site does not provide tax diesel fuel. (TR: 34)

    
    

    CONCLUSIONS OF LAW

    
    

13. The Department of transportation has regulatory authority over outdoor advertising signs as prescribed by Chapter 479, Florida Statutes.

    
    

14. The Fuqua & Davis sign of the instant case violates Chapter 479, Florida Statutes, because the sign has no valid FDOT permit. Further, the sign is not permittable because it is within 500 feet of an interstate highway interchange and does not qualify as an "on premises" sign within the criteria of Section 479.16, Florida Statutes (Supp. 1984).

15. In relevant part, Section 479.16 Florida Statutes (Supp. 1984) specifies:

    
    

    The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter, . . .:

    1. Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which meet the minimum requirements of the Southern Building

       Code. . . . (emphasis added)

       
       

16. Reading as follows, the new statutory definition of "premises" found in Section 479.01(13), Florida Statutes (Supp. 1984) applies to the case at bar:

    
    

    (13) "Premises" means an area of land occupied by the buildings or other physical uses which are an integral part of the activity conducted upon the land and such open spaces as are arranged and designed to be used in conjunction with the activity. (emphasis supplied)

    
    

    This definition supports the hearing officer's determination that the subject sign-of this appeal is not an "on premises" sign. This statute should be read in pari materia with the language found in Section 479.16(1), Florida Statutes (Supp. 1984). Competent substantial evidence in the record supports the conclusion that the sign in the instant case is not entitled to an "on-premises" exemption as defined by the statute.

    
    

17. The diesel pump which is the "service or merchandise" next to the sign is not an integral part of the principal activities conducted at the service stations. The pump next to the sign contains number two diesel fuel and is non- tax paid fuel. This fuel can only be used for motor equipment that is not used on the highway. Only customers that desire nontaxable fuel for their vehicles which do not operate on the highway use the pump. There is no attendant stationed at the pump located by the sign. The sign is designed to attract motor vehicles from the highway to exit to the service station. These same motor vehicles would not use the pump next to the sign. So the sign is not intended to attract customers to the land on which the sign is located.

    
    

18. Additionally, the signowner failed to show that the diesel pump was an integral part of the business. Although sales receipts of diesel fuel were put into evidence at the administrative hearing1 there was no evidence presented as to what percentage of the total business income was generated by the sign site diesel pump. (Respondent's Composite Exhibit #3, TR: 33-49) Evidence of this nature is critical to determining whether the sale of the merchandise is incidental to the principal activity or an integral part of the service station activity. The definition of Section 479.01(13), Florida Statutes, speaks in the singular in that "premises" is defined as an area of land." This definition does not speak of two areas of land that are not contiguous. Therefore, in the

    instant case the Hearing Officer's strong consideration of the factor that the properties were not contiguous is consistent with the new statutory definition of "premises." Section 479.01(13), Florida Statutes (Supp. 1984). The Department's consideration of the "contiguous" factor is a valid administrative interpretation of the statutory language of whether "other physical uses . . . are an integral part of the activity conducted upon the land."

    
    

19. By analogy to the law of eminent domain, where there is physical separation in properties, a presumption arises that the properties are separate and distinct. County of Volusia v. Niles, 445 So. 2d 1043 (Fla. 5th DCA 1984). The greater the distance between the properties, the less is the possibility of integral, unitary operation. Baetjer v. United States, 14 F.2d 391 (1st Cir. 1944). In the instant case the sale of gasoline near the sign was an incidental activity to the service station and was not an integral activity.

    
    

20. In fact, where parts of the same establishment are separated by intervening private land, they are considered as independent parcels unless they are so inseparably connected in the use to which they are applied that the destruction of one must necessarily and permanently injure the other. 27 Am Jur 2d, Eminent Domain, 315. Even if two tracts of land are used for the same purpose they cannot be considered a single tract if they are not used in connection with each others such as where different or separate clientele are serviced. Id. Respondent's witness admitted installing the diesel pump near the high rise sign as an attempt to make the sign legal. (TR: 47) The diesel pump served separate and distinct clientele from the ordinary customers of the service station. The diesel pump was used by individuals who did not operate their vehicles on the highway and thus, did not have to pay fuel taxes. The pump was not used in connection with the other uses at the service station or by the other customers who purchased fuel that was taxed due to use of their vehicles in normal highway driving.

    
    

21. The Department, by law, has the authority to promulgate rules to administer Chapter 479, and to determine whether a sign qualifies for a permit or falls within an exception to the permit requirement.

    
    

22. In applying the above criteria to the established facts for the instant case the sign is located on property that is not the same plot of property as the business establishment; therefore, the sign is not "on the premises" of the business establishment being advertised.

    
    

23. The Department has promulgated Rule 14-10.006(1)(b)5. (previously, 14- 10.06(1)(b)2.b.), Florida Administrative Code, which states in pertinent part:

    
    

    Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of any interchange, intersection at grade, or rest area. Said five hundred (500) feet to be measured along the interstate from the beginning or ending

    of pavement widening at the exit from or the entrance to the main-traveled way on an interstate highway.

    
    

24. Further, Petitioner has shown that the existing sign is within 500 feet of the ending of the pavement widening at the entrance of the main-traveled way of Interstate 10, consequently the location of the sign is in violation of Rule 14- 10.006(1)(b)5., Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that the subject sign on the north side of Interstate 10, .15 miles

west of State Road 69, in Jackson County, Florida, be removed within thirty (30) days of the date of this Amended Final Order.

DONE and ORDERED this 14th day of July, 1987, in Tallahassee, Leon County, Florida.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0458

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS-58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Amended Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Copies furnished to:

Stephen F. Dean Hearing Office

Department of Administration Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Charles Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0458

Docket for Case No: 81-000181

Orders for Case No: 81-000181