STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARTER SIGN RENTALS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-6456T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on February 9, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: E. Bruce Strayhorn, Esquire

Richard W. Pringle, Esquire Post Office Box 1288

Fort Myers, Florida 33902

For Respondent: Rivers Buford, Jr., Esquire

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

By letter dated November 3, 1988, the Petitioner, Carter Sign Rentals, Inc. (hereinafter Carter Signs), requested a formal administrative hearing to determine whether the Respondent, Department of Transportation (hereinafter the Department) properly denied its application for a permit to erect a sign or billboard adjacent to Interstate Highway 75 in Lee County, Florida.

During the hearing, the parties entered into a stipulation of facts which have been adopted by the Hearing Officer. Eight exhibits were submitted by the Petitioner and were entered into evidence without objection. A transcript of the proceeding was ordered and filed with the Hearing Officer on February 16, 1989. Proposed findings of fact and conclusions of law were submitted by the parties on March 3, 1989. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Carter Signs is in the business of outdoor advertising which includes the installation, repair and maintenance of signs, billboards, or displays on real property.

2. Pursuant to a twenty-year term lease that began on March 1, 1988, the Petitioner has leased the real property described as: Strap No. 344525-00- 00002.000 lying east of 1-75, in Lee County, Florida.

   
   

3. The lease describes the specific intended use of the real property under the lease. The lessee has agreed to use and occupy the premises solely for the purpose of outdoor advertising.

   
   

4. The real property is located in Lee County, Florida, within 660 feet of Interstate Highway 75, a highway in the interstate highway system. The property is approximately 1.5 miles south of the Daniel Road interchange on the east side of the highway.

   
   

5. The Lee County Comprehensive Plan, which has been enacted by the county, designates the area in which real property is located as "Airport Commerce." Under the plan, this land is approved for "mixed use developments consisting of light manufacturing or assembly, warehousing and distribution facilities; offices; ground transportation and airport related interconnection activity; and hotels/motels, meeting facilities and other hospitality services."

   
   

6. The Petitioner's application to Lee County for a permit to erect the proposed sign on the property was approved. The county permit shows that the property is zoned "agricultural." If the "agricultural" zoning classification is violated, the county permit becomes void.

   
   

7. The application for permit to the Department was denied because Section 479.111(2), Florida Statutes, allows signs within a controlled portion of an interstate highway only if the sign is within a commercial-zoned area, an industrial-zoned area, a commercial-unzoned area or industrial-unzoned area. In this case, the proposed sign was to be placed in an agriculturally zoned area.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to section 120.57(1), Florida Statutes.

   
   

9. Chapter 479, Florida Statutes, establishes the statewide laws which control and regulate outdoor advertising in areas adjacent to state highways. The applicable provisions are Section 479.111, Florida Statutes, and Rule 14- 10.009, Florida Administrative Code.

   
   

10. Section 479.111, Florida Statutes, provides in pertinent part:

    
    

    Only the following signs shall be allowed within controlled portions of the interstate... highway system ..:

    * * *

    (2) Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas...

11. Section 479.01(2), Florida Statutes, defines "commercial or industrial zone" as:

    
    

    ... an area within 660 feet of the nearest edge of the right-of-way of the interstate... system zoned for commercial or industrial use under authority of state law.

    
    

12. The property on which the sign is to be located is zoned "agricultural," according to county records and the county's approved sign permit. The Comprehensive Plan, which has been enacted by the county, designates the area as "Airport Commerce." Although the property may be used for "Airport Commerce" under the comprehensive land use plan, the Petitioner must submit the property to the rezoning process in order to obtain a commercial or industrial type classification for the purposes of a sign permit used under Section 479.111, Florida Statutes. Nelson Richard Advertising v. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987).

    
    

13. In Nelson Richard Advertising, supra, the court recognized that actual zoning rather than the comprehensive plan, determined whether an application for a sign permit should be allowed within controlled portions of the interstate highway system. The actual zoning in this case currently classifies the property as "agricultural" for zoning purposes.

Based upon the foregoing, it is RECOMMENDED:

That the Department enter a Final Order denying the Petitioner's Application for an Outdoor Advertising Sign Permit signed April 27, 1988.

DONE and ENTERED this 16th day of May, 1989, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-6456T

The Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO# 1.

2. Accepted. See HO# 2.

3. Accepted. See HO# 4.

4. Accepted. See HO# 6.

5. Rejected. Improper conclusion of law. See Section 479.15(1), Florida Statutes.

6. Accepted. See HO# 5.

The Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO# 4.

2. Accepted. See HO# 7.

3. Accepted. See HO# 5.

4. Accepted. See HO# 7.

COPIES FURNISHED:

E. Bruce Strayhorn, Esquire Richard W. Pringle, Esquire Post Office Box 1286

Fort Myers, Florida 33902

Rivers Buford, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

Outdoor Advertising Administrator Department of Transportation Haydon Burns Building, M.S. 22 Tallahassee, Florida 32399-0422

Jim Dunsford

District Outdoor Advertising Administrator Department of Transportation

801 North Broadway

Bartow, Florida 33830-1249

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Kaye N. Henderson, P.E. Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 88-006456

Orders for Case No: 88-006456