STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

V.J. ALLEN d/b/a )

THE SEAFOOD SHACK, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3509T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: V.J. Allen, pro se.

Apalachicola, Florida

For Respondent: Vernon L. Whittier, Jr., Esquire

Tallahassee, Florida

A final hearing was held in this case in Tallahassee on December 5, 1984.

This issue is whether respondent Department of Transportation (DOT) should grant the application of petitioner v. J. Allen, d/b/a The Seafood Shack (Allen) for an outdoor advertising sign to be located in Franklin County on the south side of U.S. 98, approximately 100 feet east of S.R. 65 facing east. Specifically, by stipulation of the parties, the sole issue is whether the location is zoned commercial or industrial under Section 479.07(7), Florida Statutes, as amended by Section 7, Chapter 84-227, Laws of Florida (1984), and under Rule 14- 10.05(6), Florida Administrative Code.

FINDINGS OF FACT 1/

1. Mr. V.J. Allen, d/b/a The Seafood Shack (Allen), applied for a state sign permit by application dated August 22, 1984 for a location on the south side of U.S. 98 approximately 100 feet east of S.R. 65 in Franklin County, Florida. The location is on a narrow (varying from 25 to 250 feet wide) two mile long strip of property south of U.S. 98, between U.S. 98 and St. George Sound. The strip of land to the south of U.S. 98 is part of 617 acres of contiguous property, most of which is located to the north of U.S. 98.

   
   

2. The 617 acres was purchased by Allen's family "around 1936 to 38. Originally there was a turpentine operation on the acreage on the north side of

   U.S. 98 followed by a tree farm. Presently, there are cattle and horse operations on the tract on the north side of U.S. 98. There was a cattle operation south of U.S. 98 in the 1930's or 1940's, when there was a much wider strip of land to the south of U.S. 98. But erosion has narrowed the strip to its present width. Presently, there are no commercial operations of any kind on the land to the south of U.S. 98. At the extremely narrow part of the strip at the proposed location for the sign, no development of any kind is feasible.

3. The proposed location for the sign is approximately two and one-half miles from and is not contiguous to The Seafood Shack, which is in East Point.

   
   

4. Franklin County is zoned county-wide. Before 1979, the location of the proposed sign was zoned commercial. There presently are two signs on the strip of property to the south of U.S. 98, both of which were validly permitted before June 30, 1984. In 1979, the location of the proposed sign was rezoned residential.

   
   

5. In the summer of 1984, Allen petitioned on behalf of his mother, Mrs. Boncyle C. Land, to rezone the property to the south of U.S. 98 to commercial for the purpose of erecting signs. Allen's petition was reviewed on August 14, 1984 by the Franklin County Zoning and Planning Commission, which recommended rezoning. On August 20, 1984, Allen became aware of "a problem with the law" and amended his request to provide only for the erection of a single sign, 8 feet by 16 feet in size, to advertise a new business he and an investing partner had opened in East Point at a considerable investment (approximately $85,000). But on August 21, 1984, the Franklin County Board of County Commissioners voted to rezone the property to commercial as recommended by the Zoning and Planning Commission notwithstanding Allen's August 20 letter.

   
   

6. There was no evidence that Franklin County's comprehensive plan was changed to reflect the rezoning of the sign site to commercial or that the comprehensive plan provides for commercial zoning in that location. 2/

   
   

7. U.S. 98 is a federal aid primary road, open to travel by the public, and the proposed sign site is visible from the main-traveled way of U.S. 98.

   
   

   CONCLUSIONS OF LAW

   
   

8. Chapter 84-227, Laws of Florida (1984), to the extent that it amends Section 479.07, Florida Statutes (1983), became effective on July 1, 1984. The amendments to 479.07 do not, however, apply to any permit or license which was valid and applicable as of June 30, 1984 until January 15, 1985 or until the permit or license expires or is revoked, whichever first occurs. Otherwise, Chapter 84-227 became effective on October 1, 1984. See Section 27, Chapter 84-

227. Therefore, the entirety of Chapter 84-227 governs the issue whether Allen's application should be granted. See Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980).

1. As amended by Section 7 of Chapter 84-227, Section 479.07(1), Florida Statutes, now provides:

   
   

   Except as provided in s. 479.16, no

   person shall erect, operate, use, maintain, or cause to be erected, operated, used, or maintained, any sign on the state highway system outside incorporated areas or any portion of the interstate or federal-aid primary highway systems without first obtain- ing a permit therefor from the department and paying the annual fee as provided herein.

   
   

   None of the exemptions provided in Section 479.16 apply to this case.

2. As amended by Section 12 of Chapter 84-227, Section 479.11, Florida Statutes, now reads in pertinent part:

   
   

   479.11 Certain signs prohibited. --No sign shall be erected, used, operated or maintained.

   1. Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate highway system, or the federal-aid primary highway system except as provided in ss. 479.111 and 479.16.

      
      

      As previously stated, none of the exemptions provided in Section 479.16 apply in this case.

      
      

3. As amended by Section 13 of Chapter 84-227, Section 479.111, Florida Statutes, now reads in pertinent part:

   
   

   479.111 Certain signs allowed. --Only the following signs shall be allowed within controlled portions of the interstate and federal-aid primary systems as set forth in s. 479.11(1) and (2):

   1. Signs in commercial and industrial zoned or commercial and industrial unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the require- ments set forth in the agreement between the state and the United States Department of Transportation.

   
   

4. As amended by Section 1 of Chapter 84-227, Section 479.01(7), Florida Statutes, now provides that, as used in Chapter 479, Florida Statutes.

   
   

   'Commercial or industrial zone' means an area within 660 feet of the nearest edge of the right-of-way of the interstate, or feder- al-aid primary system zoned for commercial or industrial use under authority of state law.

   
   

5. Finally, as amended by Section 7, Chapter 84-227, Section 479.07(7), Florida Statutes, now provides:

   
   

   Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this provision and permits shall not be issued for signs in such areas. The department shall adopt rules within 180 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enact- ed or enacted primarily to permit signs.

6. DOT has not promulgated any new rules implementing Section 479.07(7), Florida Statutes, as amended by Section 7, Chapter 84-227. But Rule 14- 10.05(6), Florida Administrative Code, which has been in its present form for years before the effective date of Chapter 84-227, provides in pertinent part:

   
   

   State and local zoning actions must be taken pursuant to the State's zoning enabling Statute or Constitutional 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 recognized as zoning for outdoor advertising control purposes and permits will not be issued for signs in those areas.

   
   

7. Owing to federal highway financing and the state's corresponding duty to enforce federal standards regulating billboard advertising along the federal highway system, the portion of Rule 14-10.05(6) quoted in paragraph 7 above is copied exactly from 23 C.F.R. Section 750.708(b). Best Western Tivoli Inn v. Department of Transportation, 435 So.2d 321, 322 (Fla. 1st DCA 1983) (Best Western I). DOT previously has demonstrated to the satisfaction of the District Court of Appeal, First District of Florida, that the rule should be interpreted, under the prior statutes, to prohibit signs in controlled areas zoned for signs by "action which is a part of comprehensive zoning, but which is taken primarily to permit outdoor advertising structures" (contrary to the plain meaning of the language of the rule). Best Western Tivoli Inn v. Department of Transportation,

   448 So.2d 1052, 1055 (Fla. 1st DCA 1984) (Best Western II). DOT was not able to demonstrate that the rule should be read in the disjunctive but only because it could cite no Florida or federal statute or federal regulation placing DOT "in judgment over local land use regulation that is not `created primarily to permit outdoor advertising structures. Best Western I at 323; Best Western II at 1054.

   
   

8. Section 479.07(7), Florida Statutes, as amended by Section 7, Chapter 84-227, does authorize DOT to judge whether local commercial or industrial zoning is "comprehensively enact- ed." But, assuming that Rule 14-10.05(6), Florida Administrative Code, continues to be valid even after the effective date of Chapter 84-227, 3/ whether the amendment to Section 479.07(7) enables DOT to interpret the rule in the disjunctive will depend upon the proper effect to be given to Section 12O.68(12)(b), Florida Statutes, as amended by Section 4, Chapter 84-173, Laws of Florida (1984). 4/ This question need not be determined in this case. As will become apparent below, Allen's application must be denied regardless how the rule and statute are interpreted.

   
   

9. As an applicant, Allen has the burden to prove all the elements of his entitlement to the permit for which he has applied. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

10. Regarding Rule 14-10.05(6):

    
    

    1. The rezoning of the location of the proposed sign in this case was not "part of comprehensive zoning." There was no evidence that Franklin County's comprehensive plan was changed to reflect the rezoning to commercial or that the comprehensive plan provides for commercial zoning in that location. 5/

       
       

    2. At the same time, the facts demonstrate that the rezoning was "created primarily to permit outdoor advertising structures."

11. Regarding Section 479.07(7), Florida Statutes, as amended by Section 7, Chapter 84-227, the grant of Allen's application for rezoning to commercial

(a) was not "comprehensively enacted" and (b) was "enacted primarily to permit signs."

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that:

Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit.

RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 25th day of January, 1985.

ENDNOTES

1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.

2/ Allen's testimony that, in his opinion, the property never should have been zoned residential in 1979 is insufficient to support a finding that the county's comprehensive plan provides for commercial zoning at the location. On the contrary, the evidence suggests that the local public officials were concerned that granting Allen's application would open the door to general commercial development in the area.

3/ This is a Section 120.57 formal proceeding, not a Section 120.56 rule challenge. Therefore, DOT's rule must be presumed to be valid for purposes of this Recommended Order.

4/ Section 4, Chapter 84-173, responds to Best Western I and Best Western II by amending Section 12O.6B(12)(b), Florida Statutes, so as to require agencies to act consistent with their own rules.

5/ See footnote 2 above.

DOT and the District Court of Appeal, First District of Florida, seem to have interpreted "comprehensive zoning" to mean zoning in accordance with the county's comprehensive plan. Cf. Best Western I.

COPIES FURNISHED:

V.J. Allen

27 - 15 Street Apalachicola, Florida 32320

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

Paul Pappas, Secretary Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

Docket for Case No: 84-003509

Orders for Case No: 84-003509