STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VORTEX SPRINGS, INC., )

)

Petitioner, )

)

vs. ) CASE NOS. 82-395T

) 82-396T

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in these cases on January 20, 1987, in Chipley, Florida. A transcript was ordered, and the parties requested 30 days after the filing thereof to submit proposed findings of fact and conclusions of law. The transcript was received on February 9, 1987, but there has been nothing submitted by the parties.

APPEARANCES

FOR PETITIONER: Owen N. Powell, Esquire

Post Office Box 789 Bonifay, Florida 32425

FOR RESPONDENT: Charles G. Gardner, Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301-8064

By applications dated January 22, 1982, the Petitioner seeks to obtain permits from the Department authorizing two outdoor advertising signs on I-10 in Holmes County, one approximately 1.38 miles west of SR 81 and the other approximately 1.1 miles east of SR 81. These applications were denied for the reason that the locations are in an area which is not properly zoned for outdoor advertising signs.

These cases and numerous others which involved the issue of whether the area in question is properly zoned so as to permit outdoor advertising signs, were held in abeyance while this issue was pending in the First District Court of Appeal. After the Court resolved the matter, these cases were scheduled for final hearing. The issue is whether the signs for which the Petitioner seeks permits are located in an area which is properly zoned for outdoor advertising structures.

FINDINGS OF FACT

1. On January 27, 1982, the department of Transportation notified the Petitioner, Vortex Springs, Inc., that its applications for the outdoor

   advertising sign permits which are the subject of these proceedings were denied because the zoning had been determined to be unacceptable.

   
   

2. These applications seek permits authorizing two signs on I-10 in Holmes County, Florida, one approximately 1.38 miles west of SR 81 facing west, and the other approximately 1.1 miles east of SR 81 facing east.

   
   

3. Both of these locations are inside the city limits of the municipality of Ponce de Leon, Florida.

   
   

4. The signs for which the Petitioner seeks permits were already erected when the subject applications were submitted to the department.

   
   

5. There was no other evidence presented that was relevant or would support additional findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these cases, pursuant to section 120.57(1), Florida statutes. The Department of Transportation has the authority to regulate outdoor advertising signs and issue permits therefor, pursuant to the provisions of Chapter 479, Florida statutes.

   
   

7. Section 479.07(1), Florida statutes (1981), requires that an outdoor advertising permit be applied for by any person who erects a sign along an interstate highway within any incorporated city or town.

   
   

8. Section 479.11(1), Florida statutes (1981), prohibits the erection of signs along an interstate highway, except as provided by section 479.111, Florida statutes, which provides certain exemptions.

   
   

9. Section 479.111(2), Florida Statutes (1981), allows signs within the controlled portion of an interstate highway when the area is zoned commercial, or when the area is not zoned but is commercial in nature.

   
   

10. Section 479.01(9), Florida Statutes (1981), defines a commercially zoned area to be one which is zoned commercial under authority of state law. Subsection (10) of this statute defines an unzoned commercial area to be one not zoned but where there is located one or more commercial activities.

    
    

11. By Rule 14-10.05(6), Florida Administrative Code, the Department is authorized to not recognize zoning which is created primarily to permit outdoor advertising structures to be erected.

    
    

12. These cases were held in abeyance for more than two years at the request of the parties because the Department's determination in another case that the entire area around the junction of SR 81 and I-10 in Holmes County, inside the city limits of Ponce de Leon, was improperly zoned for outdoor advertising signs, was on appeal. In August of 1986, the issue presented in Hammond v. Department of Transportation, 493 So.2d 33, was decided by the First District Court of Appeal. In this case it was determined that the Department has authority to prohibit outdoor advertising signs in a commercially zoned area along an interstate highway which is inside the city limits of a municipality, and that the record evidence presented established that the area at the junction of SR 81 and I-10 in Holmes County was zoned by the city of Ponce de Leon with the primary intent that it be used for outdoor advertising structures.

13. The evidence presented by the Petitioner at the final hearing in these cases is totally insufficient to support a conclusion that the areas in question are properly zoned for outdoor advertising signs. It was stipulated that the locations are inside the city limits of Ponce de Leon, and the Department's witness testified that the subject areas are zoned commercial but that the applications were denied because the locations are in areas with unpermittable zoning. There is no other relevant evidence in the record from which a conclusion can be made that the areas either are or are not properly zoned for outdoor advertising signs.

    
    

14. The Department has the authority to regulate outdoor advertising signs along the interstate highway system including areas commercially zoned inside-a municipality, and the Petitioner's applications have been denied pursuant to this authority. Since the evidence is not adequate to demonstrate that the areas in question are properly zoned for outdoor advertising signs, a conclusion cannot be made that the Petitioner is entitled to permits, and the applications should be denied.

RECOMMENDATION:

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the applications of Vortex Springs, Inc., for permits

authorizing signs on I-10, 1.38 miles west of SR 81 facing west, and 1.1 miles

east of SR 81 facing east, in Holmes County, Florida, be DENIED. And it is further

RECOMMENDED that the existing signs of Vortex Springs, Inc., at the above locations be removed.

THIS RECOMMENDED ORDER entered this 8th day of April, 1987 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1987.

COPIES FURNISHED:

Owen N. Powell, Esquire

P. O. Box 789

Bonifay, Florida 32425

Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Kaye Henderson Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

A. J. Spalla, Esquire General Counsel

Department of Transportation

562 Haydon Burns Bldg. Tallahassee, Florida 32301

Docket for Case No: 82-000395

Orders for Case No: 82-000395