STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER OUTDOOR ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-0539T

)

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 hearing in this case on October 23, 1985, in Chipley, Florida. The transcript was filed on February 13, 1986, and the parties were allowed 10 days thereafter to submit proposed findings of fact and conclusions of law. To date, nothing has been received from either party, and no request for an extension has been made.

APPEARANCES

For Petitioner: Mr. Robert Griffin,

as a witness for the Petitioner Post Office Box 422

Milton, Florida 32572

For Respondent: Philip S. Bennett, Esquire

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

By Memorandum of Returned Application dated January 22, 1985, the Department advised the Petitioner that its applications for outdoor advertising permits on I-10, 1.6 miles east of SR 87 in Santa Rosa County, Florida, were denied. The reason for the denial of these applications was that the Department found the proposed site to be in an area with unpermittable zoning pursuant to Section 479.11, Florida Statutes. Thus, the issue to be

resolved is whether the proposed site is permittable under the applicable statutes and rules.

FINDINGS OF FACT

1. On January 21, 1985, the Department received two applications from the Petitioner, Bill Salter Outdoor Advertising,

   Inc., seeking permits for a two-faced sign on the north side of I- 10, 1.6 miles east of SR 87 in Santa Rosa County, Florida. This sign would face east and west.

   
   

2. The Petitioner's applications stated that the proposed site was in an unzoned commercial or industrial area, within 800 feet of a business, and that the sign would meet all requirements of Chapter 479, Florida Statutes.

   
   

3. Since these applications were filed after July 1, 1984, they are governed by the provisions of the 1984 Supplement to Chapter 479 which became effective July 1, 1984.

   
   

4. The Petitioner leased the proposed sign site from George Atkinson of Milton, Florida, in November of 1984. George Atkinson had a metal building on this property which was used as a warehouse, or storage shed, in the Atkinson Heating and Air Conditioning business.

   
   

5. Although the Atkinson warehouse, or storage shed, had a small sign on it with the Atkinson company name printed thereon, this sign was not visible from the interstate, and there was nothing about this building that would indicate to traffic on the main-traveled way of I-10 that a business activity was being conducted there. George Atkinson has retired, and the storage building was leased to Bush Painting Company on December 1, 1984.

   
   

6. Busch Painting Company is located in Pensacola. Although it might use the Atkinson building as a storage area, there is no evidence that any business activity is being conducted there by Bush Painting Company.

   
   

7. Across the interstate from the proposed sign site there is a junk yard on which is a house trailer, wrecked cars, piles of junk, and piles of wood scrap. There are three business listings in the telephone book for the junk yard property, namely, Clark's Surplus and Used Auto Parts, Clark's Flea Market and Clark's Surplus and Recycling. These three businesses have the same telephone number.

   
   

8. The Atkinson storage building now leased to Bush Painting Company, and the three Clark businesses on the other side of the interstate, are located within a 1,600 foot radius of each other. The proposed sign site is within 800 feet of the Atkinson storage building.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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 31 Department of Transportation has the authority to regulate outdoor advertising signs and issue permits there for pursuant to the provisions of Chapter 479, Florida Statutes (1984 Supplement).

   
   

10. Section 479.11(1), Florida Statutes, prohibits the erection of outdoor advertising signs within 660 feet of the right-of-way of any portion of the interstate highway system, except as allowed by Sections 479.111 and 479.16, Florida Statutes. The exceptions in subsection 16 are not applicable to this proceeding.

    
    

11. Section 479.111(2), Florida Statutes, allows signs in unzoned commercial areas within 660 feet of an interstate highway, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation. This agreement appears in the Florida Administrative Code as Rule 14- 10.09.

    
    

12. Section 479.01(20), Florida Statutes, defines an unzoned commercial area as an area within 660 feet of an interstate highway not zoned by state or local law, in which there are located three or more separate and distinct commercial uses located within a 1,600 foot radius of each other.

    
    

13. Section 479.01(20)(d), Florida Statutes, excludes activities not visible from the main-traveled way from constituting a commercial activity.

    
    

14. Section 479.01(22), Florida Statutes, requires a commercial activity to be capable of being seen without visual aid from the main-traveled way in order to be a visible commercial activity.

    
    

15. Rule 14-10.09(2) Section I(1)(B), Florida Administrative Code, further restricts an unzoned commercial area to those lands on the same side of the highway which are within 800 feet of the commercial activity.

    
    

16. The Petitioner's proposed sign site is within 800 feet of the Atkinson storage building, but this building was not visible as a business activity from the main-traveled way of I-10 when the applications were denied by the Department. Moreover, there is no evidence that this storage building is being used by

    Bush Painting Company as part of the activities of this Pensacola business at the present time. There are not three or more separate and distinct commercial uses located within a radius of 1,600 feet of each other. The property on the other side of the interstate from the proposed sign site is operated as a junk yard. Although the operator of this junk yard may break the activities of the business down into segments, one dealing in auto parts, one dealing in surplus material, and one operating a flea market, there is only one business being conducted there. Moreover, the businesses used by the Petitioner to qualify the proposed sign site as unzoned commercial are not on the same side of the interstate, in violation of Rule 14-10.09, Florida Administrative

    Code, which restricts an unzoned commercial area to properties on the same side of the highway within 800 feet of the commercial activity.

    
    

17. Therefore, the Department's denial of Petitioner's applications was proper because the proposed sign site was not located in an unzoned commercial area within 800 feet of three or more separate and distinct commercial uses located within a radius of 1,600 feet of each other, as required by the statutes and rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the applications of Bill Salter Outdoor Advertising, Inc., for permits to erect a sign on the north side of I-10, 1.6 miles east of SR 87 in Santa Rosa County, Florida, facing east and west, be denied.

THIS RECOMMENDED ORDER entered this 12th day of March, 1986 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 12th day of March, 1986.

COPIES FURNISHED:

Bill Salter Outdoor Advertising, Inc.

P. O. Box 422

Milton, Florida 32572 Philip S. Bennett, Esquire

Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 85-000539

Orders for Case No: 85-000539