STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER OUTDOOR ADVERTISING, )

)

Petitioner, )

)

cvs. ) CASE NO. 86-4795T

) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on June 8, 1987. Through counsel, the parties filed proposed recommended orders on July

8 and 9, 1987. Counsel are:

For Petitioner: Mark J. Proctor, Esquire

Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A.

226 South Palafox Street Pensacola, Florida 32581

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

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

After petitioner Bill Salter Outdoor Advertising (Salter) initiated formal administrative proceedings, respondent Department of Transportation (DOT) transmitted the case to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.) then the matter came on for hearing, however, it developed that the parties were in agreement about the material facts. They stipulated that Salter is entitled to the permit it seeks for construction of a roadside advertising sign in Escambia County, if Energy Services of Pensacola, a municipally owned and operated utility, qualifies as a commercial enterprise within the meaning of Chapter 479, Florida Statutes, and implementing rules. Notwithstanding the absence of a dispute of material fact, the parties agreed to proceed under Section 120.57(1), Florida Statutes (1986 Supp.) rather than under subsection 2.

ISSUE

Whether the proposed site falls within an "improved commercial or residential area?"

FINDINGS OF FACT

1. Salter seeks a permit to erect a sign on the north side of Interstate Highway 10 about .15 mile west of State Road 291 in Escambia County. The proposed site is outside the city limits of Pensacola in an unzoned area of Escambia County.

   
   

2. In the vicinity of the proposed site, commercial and/or industrial facilities are so situated that, if the facility owned and operated by Energy Services of Pensacola, a gas utility owned by a local governmental entity, is also deemed commercial or industrial, a permit should be issued.

   
   

   The parties stipulated to the foregoing facts.

   
   

   CONCLUSIONS OF LAW

   
   

3. Because the parties have agreed to proceed under Section 120.57(1), Florida Statutes (1986 Supp.), this matter is properly before the Division of Administrative Hearings, despite the absence of a factual dispute.

   
   

4. The governing statute defines an "unzoned commercial or industrial area" as an unzoned area within 660 feet of the nearest edge of an interstate highway

   
   

   in which there are located three or more separate and distinct industrial or commer- cial uses located within a 2,600 foot radius of each other and generally recognized as commercial or industrial by zoning author- ities in the state. Section 479.01(20), Florida Statutes (1985).

   
   

5. Rule 14-10.0051(3), Florida Administrative Code, adds the requirement that one of the commercial or industrial uses occur within 800 feet of a proposed site on the same side of the road.

   
   

6. Here the question is whether a municipally owned and operated gas utility is "commercial or industrial" within the meaning of the statute. DOT contends that a government facility "is considered and treated differently than a private business doing the same thing," Proposed Recommended Order, page 2, noting the state constitutional exemption on municipal property dedicated exclusively to municipal uses and the exemption municipally owned utilities enjoy from some, but not all, regulation by the Public Service Commission. Id. at 3.

   
   

7. The statute controlling erection of highway signs evinces no intent that the placement of signs depend on the ownership of enterprises in the vicinity, however. It is the character of the use the enterprise makes of the land and the extent of the use that is determinative. Fresh produce stands and railroad tracks are excluded from the definition of commercial or industrial," without regard to their ownership, as are temporary activities, without regard to their sponsorship. Section 479.01(20), Florida Statutes (1985). These uses are not deemed incompatible with agricultural or other non-industrial and non- commercial uses. The statute is concerned with land use, not with whether the user is private enterprise or local government.

8. DOT also argues, at least by implication, that governmental utilities are "not generally recognized as commercial or industrial by zoning authorities in the state." Section 479.01(20), Florida Statutes (1985). DOT cites the Tallahassee Code's provision on utilities:

   
   

   Section 1.3. Utilities.

   
   

   Nothing in this chapter shall prevent the construction and maintenance of any public utility or municipal utility service lines or structures necessary for the distribution of public utility or municipal utility service to any part of the City of Tallahassee or County of Leon.

   
   

9. To like effect, the Dade County Code authorizes Metropolitan Dade County to "establish ... without regard to the zoning or use classification of any particular site or location," Section 33- 303, water and sewer facilities, solid waste collection and disposal facilities, "public maintenance and equipment yards ... and uses determined by the Board of County Commissioners to be similar," id., to the foregoing. These provisions assure local government flexibility in locating municipally owned utilities, their plants, lines, pipes and the like, but do not suggest that the character of some of these installations, from a land-use perspective, differs from commercial or industrial enterprises.

   
   

10. DOT also cites the Broward County Zoning Code, which has created a special agricultural-utility (A-3) zoning classification, in which "utility and public service buildings, not including power plants," Section 39-424, are allowed. This same zoning also allows activities and uses that are unquestionably commercial or industrial within the meaning of Chapter 479, however, including radio or television transmitting towers and research parks, including accessory offices, libraries, laboratories and shops.

    
    

11. Just as a single railroad track does not suffice to render an area industrial or commercial, so a single sewage main or power line should not. But a city-owned power plant, a bus barn for city buses, a major distribution facility like the one involved here amount to land uses indistinguishable from those which, when undertaken by private enterprise, DOT concedes to be commercial or industrial. When the character of the land use is the same, the statute does not make ownership of the enterprise material.

It is, accordingly, RECOMMENDED:

That DOT grant Salter's application for a permit to erect a sign north of 1-10, at a point .15 miles west of S.R. 291 in Escambia County.

DONE and ENTERED this 27th day of August, 1987, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987.

COPIES FURNISHED:

Kaye N. Henderson, P.E., Secretary Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

ATTN: Eleanor F. Turner, Mail Station 58 Mark J. Proctor, Esquire

Levin, Warfield, Middlebrooks, Mabie Thomas, Mayes & Mitchell, P.A.

226 South Palafox Street Pensacola, Florida 32581

Vernon L. Whittier, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

BILL SALTER OUTDOOR ADVERTISING,

Petitioner,

vs. CASE NO. 86-4795T

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The Record in these proceedings and the Recommended Order of the Hearing Officer have been reviewed. Respondent's Exceptions to Recommended Order have also been considered. In light of the stipulation entered into by the parties at the final hearing, the Recommended Order is considered correct in both fact and law, with the following exceptions.

First, the Recommended Order erroneously described the proposed location of the sign as being on the north side of Interstate Highway 10 about .15 mile west of State Road 291 in Escambia County. Petitioner's sign permit application and associated correspondence demonstrate that the correct location is .25 mile west of State Road 291 and not .15 mile west thereof.

Second, to the extent that the Recommended Order is read to suggest that a radio or television transmitting tower is a commercial or industrial use under Chapter 479, Florida Statutes, it is incorrect. Facilities of this nature are not considered commercial activities for Chapter 479 purposes. Tri-State Systems, Inc., v. Department of Transportation, 491 So.2d 1192 (Fla. 1st DCA 1986).

The Recommended Order as corrected is incorporated as part of this Final Order.

On September 21, 1987, Respondent Florida Department of Transportation filed exceptions to the Recommended Order. Specifically, Respondent takes issue with the Hearing Officer's conclusion of law to the effect that all utilities, whether owned governmentally or privately, are considered the same for purposes of permitting outdoor advertising signs in unzoned areas. Respondent contends that the governmentally owned utility in question, Energy Services of Pensacola, does not qualify as a commercial use solely by virtue of the fact of governmental ownership.

As noted above, the parties hereto entered into a stipulation which, in pertinent Part, provided that a facility similar to Energy Services of

Pensacola, if privately owned, could not be a basis for the Department's denial of a permit. It is well-settled that administrative construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous. Shell Harbor" v. Dept. of Business Regulation, 487 So.2d 1141, 1142 (Fla. 1st DCA 1986). Equally established is the Proposition that a reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial competent evidence. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987, 989 (Fla. 1985). But, given the stipulation governing this case, it is highly unlikely that the interpretation of Chapter 479, Florida Statutes advanced by Respondent could survive judicial scrutiny in terms of its consistency with legislative intent. Accordingly, Respondent's Exceptions to Recommended Order are rejected in their entirety.

THEREFORE, IT IS ORDERED that Petitioner's application for a permit to erect a sign north of Interstate Highway 10 at a point approximately .25 mile west of State Road 291 in Escambia County should be and the same is hereby GRANTED.

DONE AND ORDERED this 24th day of November, 1987.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

MARK J. PROCTOR, ESQUIRE

226 South Palafox Street Pensacola, Florida 32581

VERNON L. WHITTIER, JR., ESQUIRE

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 86-004795

Orders for Case No: 86-004795