STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3873T

) 84-3874T

REESE OUTDOOR DISPLAYS, INC., ) 84-3875T

) 84-3876T

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in these consolidated cases on February 5, 1985, in Chipley, Florida. Subsequently, the Respondent submitted proposed findings of fact and conclusions of law which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly. Nothing has been received from the Petitioner.

APPEARANCES

FOR PETITIONER: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

FOR RESPONDENT: George Ralph Miller, Esquire

Post Office Box 687

DeFuniak Springs, Florida 32433

The Respondent, Reese Outdoor Displays, Inc., filed applications seeking the issuance of four permits for two outdoor advertising sign locations adjacent to I-10, approximately one mile west of S.R. 285 in Walton County, Florida.

These applications were approved by the Department, and permits were issued to the Respondent as requested. Subsequently, the Department served violation notices on the Respondent seeking to revoke the permits it had issued on the grounds that these permits had been improperly approved because the sites were not located in a zoned or unzoned commercial area as represented on the applications.

FINDINGS OF FACT

1. In May and June of 1983 the Department received in its district office in Chipley, Florida, applications for four permits for outdoor advertising signs to be located adjacent to I-10, approximately one mile west of S.R. 285, in Walton County, Florida. Two of these applications requested permits to erect a two-faced, back-to-back structure on I-10, 4,262 feet west of S.R. 285, and two of these applications sought permits to erect a two-faced, back-to-back structure on I-10, 5,262 feet west of S.R. 285.

2. These permit applications stated that the locations requested were in a commercial or industrial area within 800 feet of a business.

   
   

3. The Department's outdoor advertising inspector approved these permit applications in June of 1983. When he visited the sites he found a small building, approximately eight to ten feet by approximately ten to twelve feet in dimension, situated at a point 300 feet from one of the sign sites and 700 feet from the other site. There was a pile of steel lying on the ground adjacent to this building. He was told by the Respondent's president that the Respondent's plan was to put an office on the site, and a building on which to work on signs and to store material. On the basis of his inspection of the site, coupled with these representations of the Respondent's president, the inspector approved the four applications for sign permits.

   
   

4. Subsequently, in 1984 after the permits had been issued, the small building had been removed and was replaced by a shed and another small building. However, in 1983 at the time the applications for permits were submitted, the site where the business activity was planned did not have telephone service, nor did this location have any mailing address, and there were no employees of the Respondent on the site until 1984. The Respondent obtained this location for the purpose and with the intent of locating its sign business thereon, but when the permit applications were submitted the site had not yet become a commercial location.

   
   

5. Much of the evidence presented by both sides at the hearing concerned activities conducted at the location between the two sign sites subsequent to the time when the permit applications were submitted. However, this is irrelevant. The salient facts are that the president of the Respondent knew that a business activity within 800 feet of the sign site was required in order to obtain lawful permits; he intended to establish his own sign business at a location between the two sign sites which would comply with the permitting requirements; but in June of 1983 when the permit applications were submitted, there was not then in existence any business activity within 800 feet of the proposed sign sites.

   
   

6. Thus, the statement of the Respondent on its applications that the proposed sign sites were in an unzoned commercial area within 800 feet of a business was false, and the Respondent's president knew this when he submitted the applications.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

   
   

8. Section 479.11, Florida Statutes, provides in part:

   
   

   No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   1. within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111. . . .

9. Section 479.111, Florida Statutes, provides in part:

   
   

   Only the following signs shall be permitted within controlled portions of the interstate and federal-aid primary systems:

   (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

   
   

10. Section 479.02, Florida Statutes, provides in part:

    
    

    1. It shall be the function and duty of the department, subject to current federal regula- tions, to:

       1. Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the Governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code.

          (c) Determine unzoned commercial and industrial areas; . . .

          
          

11. Section 14-10.09(2), Florida Administrative Code, adopts the agreement between the United States and the State of Florida. Section I, 1., B., C. and J., thereof provides:

    
    

    1. Unzoned commercial or industrial area means an area within six hundred sixty (660) feet of the nearest edge of the right-of-way of the Interstate, Federal-Aid Primary System, or State Highway Systems not zoned by State or local law, regulation or ordinance in which there is located one (1) or more industrial or commercial activities generally recognized as commercial or industrial by zoning authorities in this state. . . . The unzoned commercial or industrial area shall only include those lands on the same side of the highway which are within eight hundred (800) feet of such commercial or industrial activity. . . .

    2. Commercial or industrial zone means an area within six hundred sixty (660) feet of the nearest edge of the right-of-way of the Interstate, Federal-Aid Primary System, or State Highway Systems zoned commercial or industrial under authority of State law.

    J. Maintain means to allow to exist.

12. Section 14-10.02, Florida Administrative Code, provides in part:

    
    

    . . . (T)he department shall effectively control or cause to be controlled, the erection and maintenance of outdoor advertising, advertising signs and advertising structures along all

    the Interstate and Federal-Aid Primary Highway Systems. .

    
    

13. Section 479.08, Florida Statutes provides in part:

    
    

    The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter. . . .

    
    

14. Pursuant to these statutes and rules the Department of Transportation has a duty not only to control the erection of outdoor advertising signs along the Interstate and Federal-Aid Primary highways, but also to control the continued maintenance of these signs. Regardless, of whether the subject applications were approved by the inspector, and the permits subsequently issued by the Department, the statutory prerequisite for the erection of lawful signs was not present when the applications were submitted. The proposed sites were not in a commercial or industrial area within 800 feet of a business when this assertion was made by the Respondent on the applications, and the Respondent's president knew then that this requirement was lacking. Thus, the applications contain knowingly false information, and the permits that were issued in reliance thereon should be revoked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AJ511-12, AJ510-12, AJ509-12 and AJ508-

12, held by Reese Outdoor Displays, Inc., be revoked, and the signs which were erected pursuant to these permits be removed.

THIS RECOMMENDED ORDER entered this 20th day of May, 1985 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 May, 1985.

COPIES FURNISHED:

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

George Ralph Miller, Esquire

P.O. Box 687

DeFuniak Springs, Florida 32433

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003873

Orders for Case No: 84-003873