STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, ) CASE NOS. 84-3974T

) 84-3975T

vs. ) 84-3976T

) 84-3977T

TRI-STATE SYSTEMS, INC., )

)

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 March 14, 1985, in Chipley, Florida. Subsequently, the Petitioner 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.

APPEARANCES

For Petitioner: Maxine F. Ferguson, Esquire

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

Fpr Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

By notices dated October 3, 1984, the Department advised the Respondent that two of its signs located in Jackson County on the south side of I-10, one approximately 2.9 miles and the other approximately 3.1 miles west of SR 69, bearing permit numbers AJ725-10, AJ726-10, AJ723-10, AJ724-10, AJ720-10, AJ721-

10, AJ719-10 and AJ722-10, were in violation of Section 479.11, Florida Statutes, and Section 14-10.05(1), Florida Administrative Code. The Department seeks to revoke these permits and remove the Respondent's signs on the grounds that there is an absence of visible commercial activity within the required distance of these signs to qualify the sites as unzoned commercial or industrial areas pursuant to Sections 479.11 and 4 9.111, Florida Statutes, and Section 14- 10.05, Florida Administrative Code. Thus, the issue is whether the Respondent's permits should be revoked because the sign locations are not within unzoned commercial or industrial areas.

FINDINGS OF FACT

1. On July 6 and 13, 1983, the Department resolved in its district office in Chipley, Florida, the Respondent's applications for permits to erect two stacked, back-to-back, outdoor advertising signs in Jackson County, Florida, on

   the south side of 1-10, one approximately 2.9 miles and the other approximately

   3.1 miles west of SR 69. These permit applications stated that the locations requested were in an unzoned commercial or industrial area within 800 feet of a business.

   
   

2. The Department's outdoor advertising inspector visited the sites twice after having reviewed the Respondent's applications and being told that he would find a business known as Dave's Garage there. The first time he visited he did not see the business. On the second visit he saw the top of a tin building and the top of a house from the interstate. There was an antenna visible on the housetop, but he could not see any commercial activity. After driving off the interstate to the site of the buildings, he found a car, a bus, a shed, some grease and oil cans, but no one was there. The front of the building had a sign on it which said Dave's Garage. Nothing could be seen from I-10 to identify this site as the location of a business, however.

   
   

3. Based upon his inspection of the site, coupled with the Respondent's representation that a business existed there, the inspector approved the Respondent's applications. They were also approved by his supervisor, and permits for the requested locations were issued because of the proximity of the business known as Dave's Garage to the subject sites.

   
   

4. Subsequently, after the permits had been issued, the Respondent erected its signs which are the subject of this proceeding.

   
   

5. From January to March, 1985, there was still no business activity at the subject site that was visible from I-10. On March 12, 1985, two days before the hearing, an on-premise sign bearing the words Dave's Garage, was erected which is visible from I-10. Otherwise, the area is rural in nature.

   
   

6. The Respondent, through its agents Ron Gay and Terry Davis, submitted the applications for the subject permits, and designated thereon that the proposed locations were in an unzoned commercial area within 800 feet of a business. These applications also certified that the signs to be erected met all of the requirements of Chapter 479, Florida Statutes.

   
   

7. During the summer of 1984, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued notices of violation advising the Respondent that the subject sign permits were being revoked.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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.

   
   

9. Section 479.11, Florida Statutes, (1981), 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. . . .

      
      

10. Section 479.111, Florida Statutes, (1981), 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.

    
    

11. Section 479.01, Florida Statutes, (1981), sets forth the following definitions:

    
    

    (10) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate, federal-aid primary system or state highway system not zoned by state or local law regulation or ordinance, in which there is located one or more industrial or commercial activities generally recognized as commercial or industrial by zoning authorities in this state, except that the following activities may not be so recognized:

    (d) Activities not visible from the main-traveled way.

    (15) "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 469.08, Florida Statues, (1984), 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 inspector's approval was based on what he expected to find at the sites from information contained in the Respondent's applications and from what he had been told. But the proposed sites were not in a commercial or industrial area within 800 feet of a business that was visible from she interstate when the Respondent certified on its applications that the signs to be erected would meet all the requirements of Chapter 479, Florida Statutes. Activities not visible from the main-traveled way are excluded by the statutory definitions from qualifying a location as an unzoned commercial or industrial area. Thus, the Respondent's permit may be revoked pursuant to Section 479.08, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AJ725-10, AJ726-10, AJ723 10, AJ724-10,

AJ720-10, AJ721-10, AJ719-10 and AJ722-10, held by the Respondent, Tri-State Systems, Inc., authorizing two signs on the south side of I-10, 2.9 miles and

3.1 miles west of SR 69 in Jackson County, Florida, be revoked, and the subject signs removed.

THIS RECOMMENDED ORDER entered this 6th day of August, 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 6th day of August, 1985.

COPIES FURNISHED:

Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Gerald S. Livingston, Esquire

P. O. Box 2151

Orlando, Florida 32802-2151

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 84-003974

Orders for Case No: 84-003974