Judges: DIANE CLEAVINGER
Agency: Department of Transportation
Latest Update: Feb. 02, 1990
Summary: The issue at the hearing was whether Petitioner's existing sign located 186 feet West of Mulberry Point on State Road 44 in Citrus County, Florida, should be permitted.Sign permits-unpermitted sign not grandfathered in-zoning not commercial- sign not a nonconforming sign because never permitted
89-2696STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ThOMAS V. INFANTINO, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2696T
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Inverness, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on November l4, 1989.
APPEARANCES
The parties are represented as follows:
For Petitioner: James W. Kline, Esquire
Post Office Drawer 30 Winter Park, Florida 32790
For Respondent: Michael Mee, Esquire
Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES
The issue at the hearing was whether Petitioner's existing sign located 186 feet West of Mulberry Point on State Road 44 in Citrus County, Florida, should be permitted.
PRELIMINARY STATEMENT
On February 23, 1989, Respondent issued a Notice to Show Cause to Petitioner. The Notice charged Respondent with maintaining an unpermitted sign located 186 feet West of Mulberry Point on State Road 44 in Citrus County, Florida. On March 13, 1989, Petitioner submitted an application for a sign permit for the above sign. By Memorandum of Returned Application, dated March 23, 1989, the Department notified Petitioner that it would not issue a permit for the sign's location. The denial of the permit was based on the sign's site being located in an area which was not zoned commercial or industrial.
Petitioner requested a formal hearing to contest the Department's denial. Petitioner's request was forwarded to the Division of Administrative Hearings.
On October 23, 1989, the parties filed a joint stipulation. The stipulation contained several agreed upon facts and eight referenced joint exhibits. The stipulation is incorporated in this Recommended Order.
At the hearing, Petitioner testified in his own behalf. Respondent called one witness.
Petitioner and Respondent filed their Proposed Recommended Orders on December 12, 1989 and December 14, 1989, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence, or were immaterial, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
Petitioner owns the sign located 186 feet West of Mulberry Point, Citrus County, Florida. Petitioner also owns the property on which the sign is located. The sign advertises a community development which Mr. Infantino is developing. The sign is important to his business.
The sign is located on a parcel of real estate adjacent to State Road
44.
State Road 44 is a Federal Aid Primary Highway and was a Federal Aid
Primary Highway prior to sign's erection.
The sign was originally erected in 1980 or 1981. Mr. Infantino had the sign erected by a professional sign company. At that time, the area in which the sign is located was zoned commercial by the county. 1/ No state sign permit was obtained by either Mr. Infantino or the company that erected the sign. Mr. Infantino was not aware of the state sign permit requirement and, therefore, the sign has never been permitted in the nine or ten years of its existence.
In 1986, the area in which the sign is located was rezoned by the county. The new designation given by the county to the area was Coastal Lakes - 2, an environmentally sensitive area with a primarily residential use. However, the County allowed the sign to remain as a non-conforming structure.
The evidence failed to demonstrate whether there were at least three
(3) businesses within 1600 feet of Petitioner's development. Additionally, the evidence did not demonstrate that the surrounding area was primarily commercial in its use or was customarily used in a commercial character. 2/
In 1989, after nine or ten years of the sign's existence, an unnamed DOT inspector discovered the sign involved in this case. The late discovery was never adequately explained at the hearing. However, upon its discovery, the sign was determined not to have a state permit. Mr. Infantino was cited for the violation in a Notice to Show Cause issued by the Department. In response to that Notice, Petitioner filed a permit application with Respondent. The application was reviewed and denied primarily because the area in which the sign was located was not currently zoned commercial.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The Department of Transportation has the authority to regulate outdoor advertising signs and issue permits pursuant to Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code.
Section 479.11, Florida Statutes, provides in part:
No sign shall be erected, used, operated or maintained:
Within 660 feet of any portion of the interstate highway system or federal-aid primary system, except as provides in Section 479.111....
Section 479.111, Florida Statutes, provides in part:
Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal-aid primary highway system as set forth in Section 479.11(1) and (2).
(2) Signs in commercial-zoned and industrial-zoned areas or commercial- unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation.
Section 479.01(20), Florida Statutes, sets forth the following definitions:
(20) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate or federal-aid primary system not zoned by state or local law, regulation, or ordinance, *in which there are located three or more separate and distinct industrial or commercial users located within 1600 - foot radius of
each other and generally recognized as commercial or industrial by zoning authorities in this state.* Certain activities, including, but not limited to, the following, may not be so
recognized:
Signs.
Agricultural, forestry, ranching, grazing farming, and related activities, including but not limited to, wayside fresh produce stands.
Transient or temporary activities.
Activities not visible from the main - traveled way.
Activities conducted more than 660 feet from the edge of the right-of- way.
Activities conducted in a building principally used as a residence.
Railroad tracks and minor sidings.
(Emphasis added between *)
Florida Administrative Code Rule 14-10.0051(3) states:
Criteria for signs in unzoned commercial and industrial areas. Where local jurisdiction has *not zoned* in accordance with statutory authority the following criteria will be applied by the Department to determine whether such area is unzoned commercial and industrial area:
An unzoned commercial and industrial area is an area as defined in Section 479.01(20), Florida Statutes (1985) in which there are three or more commercial or industrial activities visible from the main travelled way.
The industrial or commercial uses must be located:
Such that at least one of the commercial or industrial uses is located on the same side of the highway as the sign location;
Within 660 feet from the nearest edge of the right-of-way; and
Within 1600 feet of each other.
The sign must be located within 800 feet of one of the commercial or industrial uses on the same side of the highway as the sign.
(Emphasis added between *).
The facts and evidence show that the subject property was zoned in accordance with statutory authority the entire time the sign has been standing. Therefore, the statutes and rules related to permitting signs in unzoned commercial areas do not apply. Even assuming that the statutes and rule sections related to areas related to unzoned commercial areas did apply, the evidence did not demonstrate that the subject property meets the criteria for an unzoned commercial or industrial area as set forth in Florida Administrative Code Rule 14-10.0051(3).
The "agreement" referred to in Section 479.111(2), Florida Statutes, was entered into on January 27, 1972. This agreement (hereinafter referred to as Agreement) was adopted into the laws of Florida at Section 14-10.009(2), Florida Administrative Code.
The Agreement states in part:
This Agreement . . . by and between the UNITED STATES OF AMERICA, represented by UNITED STATES DEPARTMENT OF
TRANSPORTATION, acting by and through the FEDERAL HIGHWAY ADMINISTRATION,
hereinafter referred to as the "Administrator," and the STATE OF FLORIDA, acting by and through the GOVERNOR, hereinafter referred to as the "State," for the purposes of carrying out national policy relative to control of outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways and the Federal-Aid Primary System, as authorized by Chapter 479, Florida Statutes, Title 23, Section 131, Unites States Code.
23 U.S.C. Section 131(d) provides:
In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to determined by agreement between the several States and Secretary, may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and primary systems *which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States and Secretary.* The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act.
*Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority...*
(Emphasis added between *).
23 U.S.C. Section 131(d) does not preempt State law in the regulation of outdoor advertising signs provided that the State law is consistent with
Congress' purposes and intent of protecting travelers from billboard signs in noncommercial areas. Alper v. State, 621P.2d 492, 96 NEV. 925 (1980). See: In
re Columbus Outdoor Advertising Co.; 367 N.E. 2d 920, 51 Ohio App.2d 187 (1987)(Federal law dealing with outdoor advertising signs represents essentially an inducement to the states to control outdoor advertising and did not prohibit states or local governments from regulating that area.); Lamar - Orlando, ETC.
v. City of Ormond Beach, 415 So.2d 1312 (Fla. 5th DCA 1982)("The federal courts which have considered this issue, have all concluded that no preemption as to stricter regulations was intended or imposed on state statutes or municipality ordinances, by the Federal Act"). Id. at 1320. Art Neon Co. v. City and County of Denver, 488 F.29 118 (10th Cir. 1973)("The matter of preemption by the Federal Highway Beautification Act, 23 U.S.C. Section 131... has been argued by the parties, but we find no such preemption." Id. at 123). The Agreement entered into between the federal government and the State of Florida, shows that Florida's laws and regulations concerning outdoor advertising signs are consistent with the purpose and intent of 23 U.S.C. Section 131 --- Control of Outdoor Advertising. In the sections relevant to the issue here, the Agreement sets forth the same criteria and definitions used in the above-cited statutes and rules. Section 131(d)`s reference to "local determinations of customary use" goes only to the scope and effect of the Agreement in determining whether an area is an unzoned commercial area when the local authority has not zoned the area in question. Again, the area in question in this case has been zoned by the County since 1986. Therefore Section 131(d) cannot serve as a basis for permitting Petitioner's sign.
Moreover, as indicated earlier, Section 131(d) does not prohibit states from having stricter requirements than the federal requirements. In this case, the regulation of signs has been given by the legislature to the Department.
Local authorities cannot issue permits which conflict with the Department's sign permitting authority. See Section 479.15, Florida Statutes.
Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, authorizes the Department of Transportation to administer and enforce State laws and regulations regarding the licensing, permitting, constructing, operating, using, maintaining, leasing, and selling of outdoor advertising structures and signs along any portion of the Interstate and Federal-Aid Primary Highway Systems, and along the State Highway System outside the corporate limits of cities and towns. For this reason the fact that Citrus County permitted the subject sign to remain standing as a nonconforming sign after the subject property was rezoned to Coastal Lakes - 2 in 1986 is irrelevant to the Department of Transportation's determination of whether State laws and regulations entitle the subject to a permit. Whether a sign should be granted a sign permit from the State is a determination to be made by the Department of Transportation based on pertinent State laws and regulations. (Section 479.02, Florida Statutes, and Section 479.07(1), Florida Statutes). See: Department of Transportation v. E.T. Legg & Company, 472 So.2d 1336 (Fla. 4th DCA 1985) and Hammond v. Department of Transportation, 493 So.2d 33 (Fla. 1st DCA 1986). When faced with a sign permit application, the Department of Transportation defers to the County only to see if the subject sign was permitted under the County's ordinances. If a County does not permit the sign, the Department of Transportation will not permit the sign. If the County does
permit the sign, the Department of Transportation will then apply the State laws and regulations. No further consideration is given to the County's decision.
Nor is any further consideration of the County's decision or its ordinances and regulations called for in the State laws and regulations.
Where there is a conflict between the outdoor advertising sign laws and regulations of the State and a county, the stricter law or regulation prevails. City of Lake Wales v. Lamar Advertising Association of Lakeland, Florida, 414 So.2d 1030 (Fla. 1982); Lamar - Orlando Outdoor Advertising v. City of Ormond, 415 So.2d 1312 (Fla. 1982). In deciding whether the subject sign should be allowed to continue to stand at its current location, the Department of Transportation applied a stricter regulation than did the Citrus County officials. Thus, if there is a conflict which exists between Florida Statute Section 479.11, and the Citrus County determination, Section 479.11 should prevail.
Section 479.07(1), Florida Statutes, provides in part:
Except as provided in S. 479.16, a
*person may not* erect, operate, use, or maintain, or cause to be erected, operated, used or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the Interstate or Federal-Aid Primary
Highway System *without first obtaining a permit for the sign from the Department and paying the annual fee as provided in this section.*
(Emphasis added between *).
At no time prior to March 13, 1989, did the Petitioner obtain, or attempt to obtain, a permit for the subject billboard sign from the Department of Transportation. In other words the subject sign stood in violation of Section
479.07 for eight or nine years.
Section 479.01(12), Florida Statutes, states:
(12) "Nonconforming sign" means a *sign which was lawfully erected* but which does not comply with the land use, setback, size, spacing, and lighting provisions of State or local law, rule regulation, or ordinance passed at a later date *or a sign which was lawfully erected* but which later fails to comply with state or local law, rule regulation, or ordinance due to changed conditions. (Emphasis added between *).
Since the subject sign was erected without first obtaining a permit for the sign from the Department of Transportation the subject sign was unlawfully erected, and thus it is not entitled to nonconforming sign status.
Petitioner was denied a permit for the subject sign based on Section 479.11, which expressly outlaws the erection, use, operation, or maintenance of any sign within 660 feet of the interstate highway system or the federal-aid primary highway system unless it is shown that Section 479.111, Florida Statutes, is applicable.
Since the property upon which the subject sign stands is zoned Coastal Lakes - 2, and not commercial or industrial, the sign is not in a commercially zoned area; and therefore not entitled to a permit.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is:
RECOMMENDED that the Petitioner's application for a permit to erect and maintain a sign on State Road 44, on real estate located at Section 8, Township 19, Range 21, Parcel 12200, in Citrus County, Florida, be denied.
DONE and ENTERED this 3rd day of February, 1990, in Tallahassee, Leon County, Florida.
DIANE CLEAVINGER
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 3rd day of February, 1990.
ENDNOTES
1/ The County is the local zoning authority for the area in which the sign is located.
2/ Petitioner's argument that the area which should be considered for purposes of determining the commerical nature of a sign's location is the property on which the sign was erected is rejected. There is no doubt that the sign's immediate location is commercial since the sign is for a commercial purpose and has been customarily used as such for the last 9 or 10 years. However, such a limited interpretation is not supported by the relevant statutes and rules.
Such an interpretation would have the absurd effect of permitting every sign which had been erected without a sign permit and remained undiscovered by the Department. The "areas" referred to in the statutes and rules clearly are intended to extend beyond the sign's immediate location.
APPENDIX TO CASE NO. 89-2696T
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 21, 26 and 33 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material.
The facts contained in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 29, 30 of Petitioner's Proposed Recommended Order are subordinate.
The facts contained in paragraphs 20, 28 and 31 of Petitioner's Proposed Recommended Order were not shown by the evidence. Petitioner failed to produce any authenticated evidence at the hearing of the zoning ordinances for Citrus County. The attachment to Petitioner's Proposed Recommended Order, consisting of copies of various zoning ordinances, are not authenticated as the ordinances relevant to this proceeding and therefore cannot serve as a basis for official recognition.
The facts contained in paragraph 32 of Petitioner's Proposed Recommended Order are rejected except the protion relating to the year in which the sign was erected. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material.
COPIES FURNISHED:
Michael D. Mee, Esquire Department of Transportation 605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0458
James W. Kline, Esquire Post Office Drawer 30 Winter Park, Florida 32790
Ben Watts, Secretary
Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Thomas H. Bateman, III General Counsel
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Docket for Case No: 89-002696
Orders for Case No: 89-002696
| Issue Date |
Document |
Summary |
|
Mar. 02, 1990 |
Agency Final Order
|
|
|
Feb. 02, 1990 |
Recommended Order
|
Sign permits-unpermitted sign not grandfathered in-zoning not commercial- sign not a nonconforming sign because never permitted
|
