STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEST WESTERN TIVOLI INN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-391T

) CASE NO. 89-392T DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) SIMMS ENTERPRISES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-393T

) CASE NO. 89-394T DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice on June 2, 1982, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. These cases arose from denial of the Petitioner sign owners' applications for permits for signs already erected. Because of the similarity of issues, these cases were consolidated for hearing. The only difference between these cases is the physical location of the signs.

APPEARANCES

For Petitioners: Gerald Holley, Esquire

Post Office Box 268 Chipley, Florida 32428

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301 ISSUE

The issues are as follow:

1. Does the Department of Transportation have the authority to determine if a valid and legally adopted commercial zone of Holmes County, Florida, qualifies to establish an exception under Section 479.111(2), Florida Statutes, to the general rules concerning permitting of signs along interstate highways?

2. If so, are the signs in question qualified for the exception and thereby permitable?

FINDINGS OF FACT

Based upon the stipulation of the parties, the following findings of fact are made:

1. The advertising structures at issue are outdoor advertising signs. (T.

   25.)

   
   

2. Said signs are located within 600 feet of Interstate Highway 10 (I-10)

   in Holmes County, Florida. (T. 25.) Said signs are located as follow:

   
   

   1. On I-10 1.0 mile east of State Road 79, facing east (Case No. 82-391T)

   2. On I-10 0.51 mile west of State Road 79, facing west (Case No. 82-392T)

   3. On I-10 0.83 mile east of State Road 79, facing east (Case No. 82-393T)

   4. On I-10 0.75 mile west of State Road 79, facing west (Case No. 82-394T)

      
      

3. Said signs are located outside the limits of any incorporated cities. (T. 25.)

   
   

4. I-10 is an interstate highway. (T. 25.)

   
   

5. At the site of the signs, I-10 was opened and designated an interstate highway prior to the time the subject signs were constructed. (T. 25.)

   
   

6. The signs do not have an outdoor advertising permit. (T. 25.)

   
   

7. Petitioners have made application for permits for each sign. (T. 25.)

   
   

8. The copy on each sign can be read from the main traveled way of I-10. (T. 25.)

   
   

9. Holmes County has duly adopted a comprehensive land use plan and by ordinance zoned the areas where the subject signs are located as a commercial area. (T. 26, 13.)

   
   

10. The zoning action by Holmes County was part of comprehensive zoning.

    
    

11. The Department of Transportation (Department) disapproved the applications because it determined initially that the zoning of the area was unacceptable to the Department for permitting signs.

    
    

12. Best Western Tivoli Inn belongs to Bonifay Tivoli, Limited, a partnership of Jack Hirschon and Joseph Beatty, who are the actual Petitioners in Cases No. 82-391T and 82-392T. (T. 26.)

    
    

    CONCLUSIONS OF LAW

    
    

13. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits for such signs pursuant to Chapter 479, Florida Statutes. The Division of Administrative Hearings has authority to

    conduct this formal hearing and enter a recommended order pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Concerning the first issue, the Department's authority to not recognize local zoning is contained in Rule 14-10.05(6), Florida Administrative Code, which provides in pertinent part:

    
    

    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 a part of comprehensive zoning and is created primarily to permit outdoor advertising structures is not recog-

    nized as zoning for outdoor advertising control purposes and permits will not be issued for signs in those areas.

    
    

15. This rule establishes a two-part test of a local zoning action in order for the Department not to recognize it. The first part is that the action is not a part of a comprehensive plan. The second part of the test is that the action is primarily to allow outdoor advertising. Both parts of the test must be found to exist in order for the Department not to recognize the action.

    
    

16. The parties stipulated, and the Department admitted, that Holmes County had adopted a comprehensive plan and that the zoning action is procedurally correct. The current comprehensive plan provides:

    
    

    It is the intent of this plan that sufficient property along said Inter- state 10 in the vicinity of its intersection with State Road 79, and any other North - South State Highways be zoned commercial so as to allow com- mercial buildings to be constructed in this area.

    
    

17. This is the local planning body's policy statement regarding the highest and best use for the land.

    
    

18. The County zoned the property in the vicinity of State Road 79 and I-

    10 commercial in conformity to the comprehensive plan. The zoning of such areas as commercial is not inconsistent with the uses often found at intersections of major roads with the interstate system.

    
    

19. The Department draws attention to the earlier statement of intent contained in the plan (which provides as follows) and asserts that this shows the intent to zone to permit signs:

    
    

    It is the intent of this plan that a strip of land 50 feet wide, lying on either side of I-10, and extending east and west one mile from the S.R. 79 inter- change and one mile from S.R. 81 interchange, be considered commercial, for the express purpose of allowing the

    business' of Holmes County to place signs along the side interstate highway,

    and be in conformance with the provisions of Chapter 479, Florida Statutes.

    
    

20. The basic rules of statutory construction applied to the amendment of the plan would indicate that, contrary to the Department's contention, the local authorities rejected the plan to primarily allow signs, and the current plan is not primarily for the purpose of allowing outdoor advertising signs.

    
    

21. Even if the evidence introduced indicated that the County zoned the area at this time for the primary purpose of allowing signs, the first part of the test is not met. Therefore, the Department cannot refuse to recognize the zoning for purposes of regulating outdoor advertising.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation approve the applications of the Petitioners for outdoor advertising permits for the subject signs.

DONE and ORDERED this 12th day of October, 1982, in Tallahassee, Leon County, Florida.

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 12th day of October, 1982.

COPIES FURNISHED:

Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEST WESTERN TIVOLI INN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-391T

) CASE NO. 89-392T DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) SIMMS ENTERPRISES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-393T

) CASE NO. 89-394T DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing in the above style cause was held to carry out the mandate of the First District Court of Appeal to make evidentiary findings as to whether the zoning adopted by Holmes County was enacted primarily to permit outdoor advertising structures.

APPEARANCES

For Petitioner: Gerald Holley

P.O. Box 268

Chipley, Florida 32428

For Respondent: Charles G. Gardner

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

This case has had a long and interesting history, having been before the appellate court on two occasions. The history of the case was summarized in detail at the beginning of the decision in Best Western Tivoli Inn v. Department of Transportation, 448 So.2d 1052 (Fla. App. 1 Dist. 1984), hereafter Best Western II. This summary points out that this is an application case, that DOT denied the application of the Respondents for permits for outdoor advertising signs because the signs were along and visible from an interstate highway, that the signs were located in an area zoned commercial by Holmes County, that there is a statutory exception for billboards located in commercial areas along interstate highways, and that there is an exception created by Rule 14- 10.05(6),FAC, to the exception for signs located in a commercially zoned area.

The decision in Best Western II also summarizes the earlier findings of fact of the hearing officer and the orders entered by DOT. The recommended order specifically found that the zoning ordinance of Holmes County was part of a validly adopted comprehensive zoning plan. The recommendation concluded that the rule stated a two part test, of which the first part required the zoning action to be a part of comprehensive plan, and that having met that test the signs qualified for the statutory exception. Without making further findings, it was recommended that the licenses be granted. The DOT adopted the findings of fact but rejected the interpretation of the rule made in the recommended order. DOT interpreted the rule to be an either/or matter.

In Best Western Tivoli Inn v. Department of Transportation, 435 So.2d 321 (Fla.App. 1 Dist. 1983), hereafter Best Western I, the court held that the either/or interpretation was not a permissible interpretation because it placed DOT in judgment over local land use regulation which was not related to regulation of outdoor advertising. The court remanded the matter back to DOT for entry of a final order which granted or denied the permits upon sound reasons. DOT responded with an order which again adopted the recommended findings of fact and stated a new DOT policy interpreting the rule in question to exclude for sign permitting purposes zoning which is a part of a comprehensive plan, but which is taken primarily to permit outdoor advertising. The court in Best Western II accepted DOT's interpretation while recognizing that it conflicted with the plain, facial meaning of the rule, and remanded the case for further fact finding to permit the Respondents the opportunity to present evidence on the second part of the two part test, i.e., was the zoning adopted with the primary intent to permit commercial signs.

After the latest mandate of the court was issued, the Florida Legislature amended Chapter 120, Florida Statutes, in response to the decision in Best Western II which permitted an agency not to follow its rules with an explanation. See Committee Report of House Governmental Operations. This has created a second procedural issue which must be considered.

ISSUES

Whether the Holmes County Commission zoned the area around the intersection of I-10 and State Road 79 primarily for the purpose of permitting outdoor advertising structures?

Whether the DOT may deviate with explanation from the plain meaning of its rule as set forth in Best Western I, or must adhere to the legislative mandate in Chapter 84-173, Laws of Florida to follow its rules?

FINDINGS OF FACT

1. The Holmes County Commission originally adopted a zoning ordinance that zoned as commercial a 50 foot strip on each side of I-10 in each direction from State Road 79 interchange for one mile. The ordinance stated its intent as follows:

   
   

   It is the intent of this plan that either side of I-10, and extending east and west one

   mile from the S.R. 70 interchange, be considered commercial, for the express purpose of allowing the businesses of Holmes County to place Signs along the side of interstate highways, and be in

   conformance with the provisions of Chapter 479, Florida Statutes.

   
   

2. Thereafter and prior to the first hearing in this cause, it was proposed that the zoning ordinance be amended. The matter was referred to the Holmes County Planning Commission (HCPC) which studied the matter and held public hearings on the proposed amendment. The HCPC recommended that the zoning ordinance be amended by the deletion of the language expressing the intent set forth above, and by expanding the width of the strip from 50 feet to 300 feet in each of the four quadrants around the interchange.

   
   

3. State Road 79 is one of the two primary north-south arterial roads and I-10 is the primary east-west arterial road running through Holmes County.

   
   

4. The existing commercial uses within view of I-10 along I-10 and State Road 79 include a television cable company satellite ground station and tower, several gas stations and convenience stores and two outdoor advertising signs.

   
   

5. As amended the commercial zoning conflicts with a pre-existing residential use in one area.

   
   

6. The comprehensive plan is an overall plan which is a guide to future development and zoning actions by the county. There have been no further zoning actions taken in Holmes County which has not adopted any definitions of zoning categories and has not established an enforcement procedure for its zoning regulations. However, no evidence was received that there were any potential violations or complaints concerning zoning within Holmes County.

   
   

   CONCLUSIONS OF LAW

   
   

7. These findings are made pursuant to the mandate of the First District Court of Appeal in Best Western Inn II After entry of the court's mandate, the legislature passed Chapter 84-173, Laws of Florida, which provides at Section 120.68(12)(b) Florida Statutes, that the court will remand a case to an agency if it finds the agency's exercise of discretion to be inconsistent with an agency rule.

   
   

8. The original recommended order in this case held that Rule 14-10.05 FAC, set forth a twofold test: (1) the action must be a part of a comprehensive plan and (2) created primarily to permit outdoor advertising structures in order to not be recognized by DOT as zoning for outdoor advertising control purposes. The original recommended order found that the action was not part of such a comprehensive plan. That order concluded that the signs met the first part of the two part rule and qualified for permits by exception pursuant to Section 479.111(2), Florida Statutes.

   
   

9. Best Western I approved the hearing officer's interpretation of Rule 14-10.05, FAC. The court in Best Western II held that DOT could deviate from its rule if it explained why it was deviating. The legislature amended Section 120.68(12)(b) Florida Statutes, to require remand to an agency by the court of matters in which the court finds the agency has departed from its own rule. DOT's interpretation contrary to the rule's plain meaning as concluded by the hearing officer and the court in Best Western I is no longer Permissible.

   
   

10. Clearly, the signs meet the first part of the applicable two part test and this case must be decided in favor of the sign owner. However, as mentioned in an aside in the original recommended order and as is made even clearer in the

    instant case, the amended zoning regulation is consistent with the uses generally found at interchanges, it is consistent with land use planning, the deletion of the language referencing the intent of the drafters to permit outdoor advertising signs was consistent with the expansion of the area to create a genuine commercial zone, and the original language was on its face inconsistent because one could not zone primarily to permit signs and comply with Chapter 479, FS.

    
    

11. DOT points to the lack of enforcement provisions of the zoning ordinance and lack of definitions of zoning categories and argues this reflects the intent to zone primarily to permit signs. DOT argues that witnesses who were members of the planning commission and of the county commission were incompetent to testify to the commissions' intent, yet both of these witnesses testified to their motivation which did not include the primary intent to permit signs. DOT did not call any members of the commissions to inquire as to their motivation. DOT ignores reality which indicates that over time there is eventually commercial development at major interchanges and that a comprehensive plan must address that eventuality. DOT bases its case upon the expert testimony of a person who did not participate in the decision making process and who now opines as to the intent of the commission based upon the amendatory deletion of the language regarding the intent prior to the expansion of the zone. DOT fails to consider that the deletion of the language is a expression of intent contrary to the original statement. In summary, all of the rules of statutory construction would indicate valid zoning action, as does the testimony of the only witnesses who participated in the decision. It is therefore concluded that the action was valid and did not have as its primary intent to permit outdoor advertising signs.

    
    

    RECOMMENDATION

    
    

12. Because the facts show that the zoning was part of a comprehensive plan and the action was not primarily to permit the erection of signs, the subject signs are within the statutory exception and the signs should be permitted.

DONE and ORDERED this 22nd day of May, 1985, in Tallahassee, Florida.

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 22nd day of May, 1985.

COPIES FURNISHED:

Gerald Holley, Esquire

P. O. Box 268

Chipley, Florida 32428

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 82-000391

Orders for Case No: 82-000391