STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0743T

)

CHIPLEY MOTEL, )

)

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 12, 1986, and the parties requested 20 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: Philip S. Bennett, Esquire

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

For Respondent: James J. Richardson, Esquire

Post Office Box 12669 Tallahassee, Florida 32317-2669

By notice dated February 13, 1985, the Department advised the Respondent that sign permit number 9028-6 was being revoked pursuant to Section 479.08, Florida Statutes (1984 Supplement), because the permitted site was not properly zoned for outdoor advertising signs pursuant to Section 479.111, Florida Statutes (1984 Supplement) and Rule 14-10.05(1), Florida Administrative Code. Permit number 9028-6 authorized a sign on the south side of I-10, .8 mile west of SR 77, in Washington County, Florida. Thus,

the issue presented is whether the Respondent's permit for a sign at this location should be revoked.

FINDINGS OF FACT

1. On September 23, 1979, the Department issued to the Respondent, Chipley Motel, permit number 9028-6 authorizing an outdoor advertising sign on the south side of I-10, .8 mile west of SR 77 in Washington County, Florida.

   
   

2. This permit was issued pursuant to an application that had been filed by a representative of the Respondent which stated that the site where the sign would be erected was zoned commercial or industrial.

   
   

3. The Respondent's representative filed this application containing the statement that the proposed site was zoned commercial or industrial without first checking with county officials to determine the zoning status of the site.

   
   

4. Upon receipt of the Respondent's application, Department personnel at the Chipley District Office made inquiry of county officials and were informed that the site applied for by the Respondent was zoned commercial.

   
   

5. Thereafter, the Department's district office personnel advised the Respondent that they had ascertained the subject site to be commercially zoned, and permit number 9028-6 was issued.

   
   

6. Both the Respondent's representative and the Department's district office personnel believed the proposed sign site was zoned commercial.

   
   

7. However, the site applied for by the Respondent, and where permit number 9028-6 authorized a sign to be erected, was not zoned commercial or industrial either when the application was submitted or when the permit was issued.

   
   

8. Pursuant to the issuance of permit number 9028-6, the Respondent erected an outdoor advertising sign at the permitted location. This sign was taken down sometime between September of 1979 and July of 1985. Permit number 9028-6 which had been issued for this sign on I-10, .8 mile west of SR 77 was affixed to another sign located 250-300 feet from the permitted site. Sometime after July 31, 1985, a different sign was erected at the location on I-10, .8 mile west of SR 77, and permit number 9028-6 was affixed to this sign. Therefore, permit number 9028-6 had been used on two signs at two different locations before it was reapplied to the sign that now stands on the permitted site. The

   sign that is up now is not the sign for which permit number 9028-6 was issued.

   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 Department of Transportation has regulatory authority over outdoor advertising signs and permits as prescribed by Chapter 479, Florida Statutes.

   
   

10. Section 479.11(1), Florida Statutes (1984 Supp.), prohibits the erection of outdoor advertising signs within 660 feet 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 areas zoned commercial or industrial, 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 479.07, Florida Statutes, prohibits the erection of a sign along an interstate highway without first obtaining a permit from the Department. Subsection (6) of this statute makes a permit valid only for the location specified in the permit.

    
    

13. Section 479.08, Florida Statutes, authorizes the Department to revoke any sign permit issued by it whenever it is determined that the application for the permit contained knowingly false or misleading information, or when the permittee has violated any of the provisions of Chapter 479.

    
    

14. There is no evidence that the application submitted by the Respondent's representative contained any information which was knowingly false and misleading. The Respondent's representative did not make an inquiry to determine if the site applied for was zoned commercial, but it was believed that the site was zoned commercial. The Department's district office personnel made an inquiry and were misinformed, but they also believed the subject site to be zoned commercial. This is a mutual mistake without blame or consequence on either party.

    
    

15. However, the site on I-10 at a point .8 mile west of SR

    77 in Washington County is not zoned commercial or industrial. Therefore, an outdoor advertising sign at this location is not authorized by Sections 479.11(1) and 479.111(2), Florida Statutes.

16. Further, the removal of the permitted sign and placement of permit number 9028-6 on a different sign 250-300 feet away from the permitted site by the Respondent is a violation of the above proscription against erecting a sign without a permit. The Respondent knew a permit was required because one was obtained for the sign at the location .8 mile west of SR 77, but none was obtained for the location 250-300 feet away. The Respondent further violated Section 479.07(6), Florida Statutes, when the permit that was issued for the location .8 mile west of SR 77 was placed on another sign 250-300 feet away. Finally, the Respondent violated Chapter 479 again by replacing permit number 9028-6 on another sign at the location .8 mile west of SR 77 when this sign was not the sign for which the permit had been issued.

    
    

17. As a result of these violations of Chapter 479, the Respondent's sign permit may be revoked pursuant to the provisions of Section 479.08, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that permit number 9028-6 held by Chipley Motel, for a sign on the south side of I-10, .8 mile west of SR 77 in Washington County, Florida, be revoked.

THIS RECOMMENDED ORDER ENTERED this 13th 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 13th day of April, 1986.

COPIES FURNISHED:

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

James J. Richardson, Esquire

P. O. Box 12669

Tallahassee, Florida 32317-2669

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 85-000743

Orders for Case No: 85-000743