STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE H. DIMMITT, III, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1320

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 10, 1988, in Clearwater, Florida. The issue for determination in this proceeding is whether petitioner is entitled to a variance to fly twenty-one (21) American flags at its commercial property located on U.S. Highway 19.

APPEARANCES

For Petitioner: Joshua Magidson, Esquire

MacFarlane, Ferguson, Allison & Kelly

200 North Garden Avenue Clearwater, Florida 34615

and

Daniel E. Myers, Esquire

1353 E. Lafayette Street, Suite A Tallahassee, Florida 32301

For Respondent: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618-4748 INTRODUCTION

On February 25, 1988, the City of Clearwater Development Code Adjustment Board denied the application of petitioner Lawrence H. Dimmitt, III for a variance to display twenty-one (21) American flags at its automobile dealership facility located on U.S. Highway 19 in Clearwater. The petitioner thereafter requested a hearing to appeal the decision of the Board.

At the appeal hearing, the petitioner presented the testimony of Raymond Kearney, the General Manager of Dimmitt Chevrolet, Inc., and John Richter, the Development Code Administrator for the City of Clearwater. The petitioner's Exhibits 1 through 4 were received into evidence.

The City also presented testimony from John Richter, and its Exhibits 1 through 3 were received into evidence.

Testifying as members of the general public were William A. Zinzow, William Johnson and Richard A. Fitzgerald, and three public exhibits were marked and received.

Subsequent to the hearing, the petitioner filed proposed findings of fact and proposed conclusions of law, and the City filed a post-hearing brief. The transcript of the final hearing was filed with the undersigned on July 15, 1988. The proposed factual findings submitted by the parties have been adopted herein, and the legal arguments have been addressed.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On or about December 8, 1987, Dimmitt Chevrolet, Inc., an automobile dealership located at 2285 U.S. Highway 19 North, Clearwater, placed on display

   23 American flags on top of lightposts in front of the business.

   
   

2. After receiving notice from the City that the flying of more than two flags was in violation of the City's Land Development Code, petitioner applied for a permit to fly the 21 additional flags. The City's Development Code Administrator advised petitioner that "the maximum number of flags on any nonresidentially zoned property is two - with or without permits."

   
   

3. On or about January 29, 1988, the petitioner submitted to the City its application for a variance to display the 21 additional American flags. The application form requires the applicant to state the reasons for the variance request. As the "special conditions or circumstances applicable to the property involved," petitioner responded that "the subject property is large with substantial frontage on U. S. Highway 19 and the flags are small." When asked to respond why the variance was necessary for the preservation and enjoyment of a substantial property right possessed by others, but denied to the applicant, the response was that "the people at Dimmitt Chevrolet would not be able to adequately communicate the message of the American Flag." When asked to address the question of whether the granting of a variance would confer a special privilege denied to other lands or be injurious to the neighborhood or otherwise detrimental to the public welfare, the applicant responded that "the American Flags do not cause any injury to the neighborhood or in any way create a detriment to the public welfare."

   
   

4. On February 25, 1988, the Development Code Adjustment Board held a public hearing on the subject variance application. Counsel for the applicant stated his concerns regarding the vagueness and constitutionality of the Land Development Code's provision which states that up to two flags may be placed on nonresidential property without a permit, yet fails to set forth the requirements necessary in order to obtain a permit. The Board also heard from members of the general public. Three citizens spoke in support of the flag display, expressing that they felt it was patriotic and tastefully done. Two others spoke in opposition, expressing their view that the flag display was used to attract attention to the business and that the manner in which the flags are displayed does not follow etiquette. After a discussion, the Board voted unanimously to deny the application for a variance for the reasons that the applicant had failed to demonstrate a necessity for the variance, that the display violates the general spirit and intent of the Development Code and that

   the request appears to be based primarily upon the desire of the applicant to secure a greater financial return from the property.

   
   

5. At the hearing before the undersigned, the record before the Board was received into evidence, the petitioner's General Manager testified as to the procedural history of this case, and the City's Development Code Administrator testified regarding his interpretation of the Code's provisions regarding the regulation of signs and variance approvals. Three members of the general public testified in opposition to the flag display and two letters in support of the display were received. The standards for the proper display of the American flag, as contained in the United States Code, 36 USCS sections 173-178, were received into evidence.

   
   

   CONCLUSIONS OF LAW

   
   

6. The pertinent substantive provisions of the City of Clearwater's Land Development Code applicable to this proceeding are contained in Chapter 134, the sign regulations, and in Section 137.012, which governs the granting of variances to the sign regulations. Among the many purposes for the enactment of the City's sign regulations are to enhance the attractiveness and economic well- being of the City as a place to live, vacation and conduct business (Section 134.004(4)), to lessen visual clutter (Section 134.004-(3)), and to require that signs be installed and maintained in a satisfactory manner (Section 134.004(12)). A sign is defined in Section 134.006 as any writing, picture, symbol, banner or other graphic communication or device primarily used to convey information, attract attention or advertise and is primarily visible from an outdoor location. Certain signs are allowed and exempt from the City's permitting requirements and procedures. Such signs are described, often with reference to their duration and size, and are allowable "without a permit." See Section 134.08. Among the exempt signs are flags. Section 134.008(18) provides as follows:

   
   

   "(18) Flags. One flag may be placed on any residentially zoned property and up to two (2) flags may be placed on any nonresidentially zoned property without a permit. Such flags shall represent a governmental unit or body and shall be positioned so that no part of the flag is able to encroach over a public right-of-way."

   
   

   In addition, certain signs are specifically prohibited or restricted in use. These include:

   
   

   "(5) Wind devices (such as banners, pennants, streamers, spinners, ribbons and balloons), strips or strings of lights, and similar displays used to draw attention to a use or outline property lines or display areas shall be prohibited. This prohibition shall not apply to declared public or noncommercial civic, religious, municipal, county, state or national celebrations or events as authorized by and under such conditions as

   prescribed by the city commission or city manager."

   
   

   Thereafter, the Code enumerates by zoning district those signs which may be permitted, and prescribes their number and size. Section 134.010. Properties located in the highway commercial zoning district, as is the case here, are permitted to have a property identification sign and a business identification sign. Section 134.010(2).

   
   

7. Recognizing that there must be a process for alleviating hardships, the Code contains provisions which authorizes the granting of variances from the sign regulations. Section 137.012. A "variance" is defined in the Code as "a grant of relief from the requirements contained in this Development Code based upon demonstrated hardship." Section 137.005. The Code contains eight standards for approval of a variance request, and mandates that a variance "shall not be granted... unless the application and evidence presented clearly support" the eight conclusions. Section 137.012(d). As pertinent to the facts of this proceeding, the applicant must present evidence of the uniqueness of the property; that the strict application of the Code would result in an unnecessary hardship upon the applicant due to the particular physical surroundings, shape or topographical conditions of the property; that the variance requested is the minimum necessary to overcome that unnecessary hardship for the purpose of making reasonable use of the land; that the request is not based primarily upon the applicant's desire to secure a greater financial return from the property; and that the granting of the variance will not violate the general spirit and intent of the Code.

   
   

8. Here, the Board found, and the evidence fully supports a finding that the applicant failed to meet the standards for approval of a variance from the requirement that only two flags be displayed on its property. The applicant's property was not shown to be unique; no unnecessary hardship was demonstrated; and no reason for flying 23 flags, as opposed to the allowable number of two, was offered to refute the rather obvious inference that the purpose of the flag display is to attract attention to the site so as to secure a greater financial return from the business located on the property. In light of the fact that wind devices, such as banners, pennants and streamers used to draw attention to the property, are prohibited by the Code, as well as the facts that it has been determined that two flags are permissible on commercial property, as well as one property and one business identification sign, it is reasonable to conclude that a display of 23 American flags violates the spirit and intent of the City's sign regulations.

   
   

9. Counsel for the applicant urges that there is no rational basis for limiting the number of American flags to two, and that such a limitation constitutes an unconstitutional infringement of the rights of freedom of speech and expression. It is further urged that the Code is vague in its allowance of two flags "without a permit," yet fails to set forth the parameters for obtaining a permit for more than two flags. Likewise, it is argued that the Code's conditions for a variance are not applicable to the facts of this case. This is not the proper forum for an attack upon the facial validity or constitutionality of the City's Land Development Code.

   
   

10. The purpose of this proceeding is to review the decision of the Board regarding the applicant's request for a variance. In performing such a review, the Hearing Officer is to be guided by the standards for a variance as contained in Section 137.012, and the applicant bears the burden of demonstrating that the

    decision of the Board cannot be sustained by the evidence or that said decision departs from the essential requirements of law. Section 137.013(f).

    
    

11. With these considerations in mind, it is concluded that the application for a variance to fly an additional 21 American flags, and the evidence submitted in support thereof, do not satisfy the standards for approval contained in Section 137.012(d) of the Code. Whether or not the existing display of 23 American flags is in accordance with proper etiquette, custom or law, and whether or not the display pleases or offends the patriotic sensibilities of individuals who may observe it, are not the issues in this proceeding. The Land Development Code clearly sets forth the conditions which must be satisfied before a variance from its provisions is approved. The applicant herein failed to demonstrate that it satisfies those conditions. The decision of the Board is fully sustained by the evidence presented and fully comports with the essential requirements of law. Accordingly, its decision must be upheld.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED THAT the application for a variance to install and display twenty-one American flags, for a total of twenty-three American flags, is DENIED.

DONE and ORDERED this 4th day of August, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

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 4th day of August, 1988.

COPIES FURNISHED:

Joshua Magidson, Esquire MacFarlane, Ferguson,

Allison & Kelly

200 N. Garden Avenue Clearwater, Florida 34615

Daniel E. Myers, Esquire 1353 E. Lafayette Street Suite A

Tallahassee, Florida 32301

Miles A. Lance, Esquire Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618-4748

Cynthia Goudeau, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED, TO JUDICIAL REVIEW PURSUANT TO SECTION 137.013(f)(7) OF THE CITY OF CLEARWATER LAND DEVELOPMENT CODE.

Docket for Case No: 88-001320

Orders for Case No: 88-001320