STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3477T

) 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 December 17, 1985, in Chipley, Florida. The transcript was filed on April 29, 1986, and the parties were given 10 days thereafter to submit proposed findings of fact and conclusions of law. These were filed by the Respondent, and its proposed findings of fact have been adopted. Nothing has been received from the Petitioner.

APPEARANCES

For Petitioner: Paul Salter, as a witness for

Petitioner Bill Salter Outdoor Advertising Post Office Box 422

Milton, Florida 32572

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

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

By Memorandum of Returned Application dated September 3, 1985, the Department of Transportation notified the Petitioner that its application for a sign permit that had been received on August 9, 1985 was denied. This application sought a permit to erect a sign on the south side of U.S. 90, 1.94 miles east of U.S.

90 and County Road 197, in Santa Rosa County, Florida, facing east. The Petitioner's application was denied because the proposed site was alleged to be in a location without proper

zoning for outdoor advertising signs pursuant to Section 479.111, Florida Statutes. Thus, the issue is whether or not the proposed sign site is permittable under the applicable statutes and rules. c

FINDINGS OF FACT

1. On August 5, 1985, Bill Salter Outdoor Advertising applied for a state sign permit for a location facing east on the south side of U.S. 90, a federal aid primary highy, 1.94 miles east of U.S. 90 and County Road 197, in Santa Rosa County, Florida. This application shows the proposed sign site to be 15 feet from the highway right-of-way, outside city limits, in an unzoned area. The Department denied the Petitioner's application by Memorandum of Returned Application dated September 3, 1985, because the sign site is an an area without permittable zoning, pursuant to Sections 479.11 and 479.111, Florida Statutes.

   
   

2. Paul Salter, witness for Bill Salter Outdoor Advertising, presented evidence in the form of an application, lease, aerial map showing the plant of Air Products Company and a private road connecting this plant with Highway 90, and several photographs showing trucks using the private road to deliver materials to the Air Products Company plant. Paul Salter contends that the business activities required to qualify the site as unzoned commercial are the trucks driving in and out of the plant, and that each truck using the private road constitutes a commercial use under Chapter 479, Florida Statutes. He argues that the Air Products plant is a fiber plant or some type of manufacturing facility, and that the manufacturing activities take place on the private road, but the only activities he observed from U.S. 90 were the trucks using the private road and people cutting grass.

   
   

3. Upon receipt of the permit application, an inspection of the proposed site was conducted by the Department's Outdoor Advertising Inspector for Santa Rosa County. By his measurements, the distance from the intersection of the private road and U.S. 90 to the Air Products administration building is .4 miles or more than 2,000 feet. There are large trees lining the private road, and these trees merge into a dense wooded area toward the south end of the road. The proposed sign site is unzoned, the area to the west of the entrance to the private road consists of woods, and to the east is a trailer park with several mobile homes. Approximately .3 miles down the private road the area clears out on the right side, and the manufacturing facilities and storage tanks become visible. Howevar, none of the commercial or industrial activities are visible from the main-traveled way of

   U.S. 90.

   
   

   CONCLUSIONS OF LAW

4. 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 the authority to regulate outdoor advertising signs and issue permits there for pursuant to the provisions of Chapter 479, Florida Statutes.

   
   

5. Section 479.11(1), Florida Statutes, prohibits the erection of an outdoor advertising sign within 660 feet of a federal-aid primary highway except as allowed by Section 479.111.

   
   

6. Section 479.111(2), Florida Statutes, allows signs in zoned and unzoned commercial and industrial areas within 660 feet of a federal-aid primary highway.

   
   

7. Section 479.01(20), Florida Statutes, defines "unzoned commercial or industrial area" to mean an area in which there are located three or more separate and distinct industrial or commercial uses located within a 1,600 foot radius of each other and visible from the main-traveled way of the highway. Additionally under this section, "transient or temporary" activities may not be recognized as commercial or industrial.

   
   

8. By Rule 14.10.09(2), Florida Administrative Code, in Section I, 1.B. unzoned commercial or industrial areas are limited to those lands on the sane side of the highway which are within 800 feet of an industrial or commercial activity. Also under Section I, 1.B.7.C. of this Rule, a commercial or industrial area means an area within 660 feet of the nearest edge of the right-of- way of a federal-aid primary highway.

   
   

9. Section 479.02(1), Florida Statutes, gives the Department of Transportation the duty to determine what are unzoned industrial and commercial areas within the framework of the applicable statutes and rules.

   
   

10. The location where the Petitioner proposes to place its sign is in an area without any zoning. In order for area to be designated as unzoned commercial or industrial, it must have three or more separate and distinct industrial or commercial uses located within a 1,600 foot radius of each other. The Petitioner contends that the business activities at the location in question which qualify the area as unzoned commercial or industrial are the trucks using the private road, and that each truck constitutes a separate commercial use under Chapter 479. However, a truck transporting materials over a road, private or public, is a "transient" activity which is precluded from being recognized as

    commercial or industrial by Section 479.01(20), Florida Statutes, and Section I, 1.B.3. of Rule 14-10.09(2), Florida Administrative Code.

    
    

11. The Air Products Company plant is located at the south end of a private road, over 2,000 feet from the point of intersection of this road with U.S. 90, a federal-aid primary highway. This distance exceeds the 660 foot limit in Section I,

    1.C. of Rule 14-10.09(2), Florida Administrative Code, and places the plant's location outside the allowable area for commercial or industrial designation.

    
    

12. Section I, 1.B.7. of Rule 14-10.09(2), Florida Administrative Code, requires the unzoned commercial or industrial area to be within 800 feet of the commercial or industrial activity on the same side of the highway. The proposed sign site,

    15 feet from the right-of-way of U.S. 90 and 1.94 miles east of the intersection of U.S. 90 and County Road 197, is beyond the 800 foot limit.

    
    

13. The private entrance to the Air Products Company plant has several large trees lining the road, converging into a dense forest toward the south end of the road. There is a wooded area to the west and a trailer park with mobile homes to the east of the entrance. Because of the density of the trees, the Air Products Company plant is not visible from the main-traveled way of U.S. 90, as required by Section 479.01(20), Florida Statutes, thus eliminating it from consideration as an unzoned commercial or industrial area.

    
    

14. Consequently, the site where the Petitioner proposes to place its sign does not meet the recqirements of the statutes and rules to qualify as an unzcned commercial or industrial area, and the Petitioner's sign permit application should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding that the application of Bill Salter Outdoor Advertising for a permit on the south side of U.S. 90, 1.94 miles east of U.S. 90 and County Road 197, in Santa Rosa County, Florida, be DENIED.

This Recommended Order entered this 17th day of June 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 17th day of June, 1986.

COPIES FURNISHED:

Bill Salter Outdoor Advertising Post Office Box 422

Milton, Florida 32572

Vernon L. Whittier, Esq. Department of Transportation Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Mr. Thomas Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301-8064

A. J. Spalla, Esquire General Counsel

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301-8064

Docket for Case No: 85-003477

Orders for Case No: 85-003477