STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERGLADES NATIONAL PARK )

BOAT TOURS, INC., )

)

Petitioner, )

)

vs. ) Case No. 90-7189T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on January 9, 1991, in Naples, Florida, before Joyous D. Parrish, a designated hearing officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: George Vega

Vega, Brown, Stanley & Martin 2660 Airport Road, South Naples, Florida 33962

For Respondent: Vernon L. Whittier, Jr.

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The central issue in this case is whether the Petitioner is entitled to sign permits for signs to be located 100 feet east of SR 29 on U.S. 41 in Collier County, Florid.a.

PRELIMINARY STATEMENT

This case began on October 8, 1990, when the Department of Transportation (Department) issued a memorandum of returned application which stated that the application filed by Everglades National Park Boat Tours, Inc. (Everglades) was not approved. Everglades had filed an application for sign permits for a location described as 100 feet east of SR 29 on U.S. 41, Collier County. The Department's grounds for not approving the application were: that the sign site did not comply with zoning requirements, and that the site did not meet spacing requirements. The Petitioner requested an administrative review and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on November 14, 1990.

At the hearing, the Petitioner presented the testimony of James Longmire, commercial property manager for the Barron Collier Company; and Sammy Hamilton, Jr., owner of Everglades. The Petitioner's exhibits numbered 1 and 2 were admitted into evidence. James Dunsford, district administrator for outdoor advertising, district one, testified on behalf of the Department. The Department's exhibits numbered 1, 2, 3A, 3B, 4, 5, and 6 were admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on January 18, 1991. Specific rulings on the proposed findings of fact submitted by the parties are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence presented at the hearing, the following findings of fact are made:

1. The Petitioner business is located off U.S. 41 in Collier County, Florida, and is a franchised boat tour company doing business within the Everglades National Park.

   
   

2. Prior to May, 1990, the Petitioner utilized a sign site which was located 100 feet east of SR 29 on U.S. 41 to alert its customers of the turn to make to enter Petitioner's place of business. That sign (two sides, one facing either direction) was located on property owned by the Barron Collier Company.

   
   

3. For a number of years prior to 1989, National Advertising Company (National) leased the sign location from Barron Collier and then contracted with Petitioner for the sign site.

   
   

4. The ownership of the sign itself, as of December, 1989, has not been established. Originally, the Barron Collier Company had erected a wooden sign on telephone-type poles at the site in the 1950s. Whether that sign or its replacement was there in December, 1989, is unknown.

   
   

5. The Barron Collier Company takes the position that they leased the sign and the site to National. No mention was made as to the sign's ownership within the lease document. In any event, for reasons unknown, Barron Collier and National had a falling out which resulted in the termination of their agreement in December, 1989. National's lease to the site was then deemed a holdover tenancy for the period of time ending in May, 1990.

   
   

6. In May, 1990, the sign was removed from the site and National gave notice to the Department that it was abandoning the location. Barron Collier and Petitioner claim the removal of the sign was an act of vandalism or trespass. To date, no court of law, civil or criminal, has reached that legal conclusion.

   
   

7. In October, 1990, Petitioner applied for a state sign permit for the same location. That location is currently zoned agricultural, environmentally sensitive. Additionally, that location is 288 feet from a permitted sign site.

   
   

8. U.S. 41 at the proposed sign location is, a federal-aid primary highway.

9. Permits for the two faces of the sign which had been at the location were previously held by National. Permits for both faces of the sign which had been there prior to May, 1990, were cancelled by National in an affidavit dated May 15,, 1990. The Department verified the removal of the sign by certificate of sign removal dated June 14, 1990.

   
   

10. Subsequently, Petitioner received permission from the Collier County Board of County Commissioners to re-erect the sign.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case.

    
    

12. The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs.

    
    

13. Section 479.11, Florida Statutes, provides, in pertinent part:

    
    

    No sign shall be erected, used, operated, or maintained:

    1. Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in ss. 479.111 and 479.16.

       
       

14. Section 479.111, Florida Statutes, provides, in pertinent 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 s. 479.11(1) and (2):

    * * *

    1. Signs in commercial-zoned and industrial- zoned areas or commercial-unzoned and industrial-unzoned areas and within 600 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.

    2. Signs for which permits are not required under s. 479.16.

    
    

15. Section 479.16, Florida Statutes, which describes signs for which permits are not required, is not applicable to these proceedings.

    
    

16. Section 479.07, Florida Statutes, provides, in part:

    
    

    1. 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.

       * * *

       (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

       * * *

       2. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

       
       

17. The sign site in this case is not zoned either commercial or industrial as provided in Section 479.111, Florida Statutes. The sign site is within 1000 feet of another permitted sign and is, therefore, contrary to Section 479.67, Florida Statutes.

    
    

18. Had the sign which was removed in May, 1990, continued to be permitted by the Department, the location would have been allowed as a non-conforming sign. In this case, however, the removal of the structure and cancellation of the sign permit result in the preclusion of this site for a new sign permit.

    
    

19. Petitioner's claim that the sign was removed by trespass and therefore constitutes vandalism within Rule 14-10. 007, Florida Administrative Code, is not established by the record. Neither Petitioner nor the Barron Collier Company held the permits for the non-conforming location. Had National sought to rebuild the sign following an act of vandalism, the Department rule would have afforded that leeway. In this instance, the Petitioner has been harmed because the property owner and the sign company reached an impasse in their lease negotiations. That Petitioner required the use of the sign location does not alter the property owner's right to terminate its relationship with National.

If National breached its commitment to Petitioner, Petitioner's remedy lies elsewhere.

RECOMMENDATION

Based upon the foregoing facts and conclusions of law, it is RECOMMENDED:

That the Department of Transportation enter a final order denying the sign application for the location at 100 feet east of SR 29 on U.S. 41 in Collier County, Florida, as requested by the Petitioner.

DONE and ENTERED this 7th day of March, 1991, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1991.

APPENDIX TO CASE NO. 90-7189T

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 3 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. With regard to paragraph 1, it is accepted that the Barron Collier Company erected a sign on the subject site in the 1950s. Whether that sign was the one removed in May, 1990 by National or others is unknown. Representations to the contrary are not supported by the weight of the evidence.

2. With regard to paragraph 2, it is accepted that the Petitioner entered into a lease with National for a sign at the site location which is the subject of this case and that that agreement was in effect from the 1960s until 1990.

3. Paragraphs 3 and 4 are accepted. Note: there is no paragraph 5 proposed by the Petitioner.

4. Paragraph 6 is rejected as unsupported by the weight of the evidence. It is accepted, however, that the sign was removed in May, 1990, and that National cancelled its permits for the location.

5. Paragraphs 7 through 9 are accepted.

COPIES FURNISHED:

George Vega, Jr.

VEGA, BROWN, STANLEY & MARTIN, P.A.

2660 Airport Road South Naples, Florida 33962

Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458 ATT: Eleanor F. Turner, M.S. 58

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007189

Orders for Case No: 90-007189