STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLAMINGO LAKE RV RESORT, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 90-7304T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on March 19, 1991, in Jacksonville, Florida.

APPEARANCES

For Petitioner: John S. Ball, Esquire

Michael W. Fisher, Esquire Fisher, Tousey, Leas & Ball 2600 Independent Square

Jacksonville, Florida 32202

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

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether the 1-295 and Lem Turner Road (SR 115) interchange is a "rural interchange" under Rule 14.85.003(10), Florida Administrative Code.

Whether the Respondent has authority to establish a policy excluding logo signing from interchanges on 1-295 in Duval County.

What is the impact on this case of the Respondent's amendment of Rule 14- 85.003(10)(b), Florida Administrative Code, which repeals the exception for certain defined urban interchanges?

PRELIMINARY STATEMENT

The parties stipulate that on or about October 2, 1990, the Petitioner filed a logo application with the Respondent (the "Department"), together with the $25 application fee, to participate in the Department of Transportation logo sign program (hereinafter the "logo program") Petitioner seeks in its application to have a logo panel placed at the 1-295 and Lem Turner Road (SR

115) interchange. The Department denied Petitioner's application by letter dated October 17, 1990 based upon its existing policy.

The Department's policy and the manner of its adoption, as outlined below, appears inconsistent with statutory requirements and contrary to the existing rules; however, the formal amendment of the rule to eliminate the exemption alters the issues which must be considered. The laws and rules in effect at the time of hearing control, and the issues related to the exemption and policies surrounding its application are moot. Because this is a legal issue subject to challenge, findings presented in the proposals related to these issues are made.

The Petitioner timely filed its petition for administrative hearing, and the hearing under the administrative procedures act was held on March 19, 1991. The transcript was filed on April 4, 1991. The Petitioner and the Respondent submitted proposed findings of fact and conclusions of law, which were read and considered. The Appendix attached hereto and incorporated by reference herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. Petitioner, Flamingo Lake RV Resort, Inc., operates a camping facility located in Duval County, Florida, located at the interchange of 1-295 and SR 115 or Lem Turner Road.

   
   

2. The Petitioner applied to the Department pursuant to Section 479.26, Florida Statutes, and Chapter 14-85, Florida Administrative Code, to participate in the logo program at the interchange.

   
   

3. The logo program is the means by which businesses, located within a specified distance from an interstate highway exit, are permitted to display their logo sign on information panels placed on the interstate highway near the applicable exit. Such panels identify motorist services available at the exit categorized by "Food," "Gas," "Lodging" or "Camping." The Petitioner applied to place the logo of Flamingo Lake RV Resort on a "Camping" information panel.

   
   

4. There are no logo panels currently at the interchange of 1-295 and SR

115. The only signage at that interchange located on the interstate right-of- way consists of a small generic sign displaying a picture of a camper underneath the exit ramp sign. The small generic camper sign is not readily noticeable. The generic sign neither identifies the particular campground which it references, nor supplies directions to the campground.

1. Signage on a logo panel is important because it assists a traveler in finding a particular campground and provides directions to the campground.

   
   

2. By letter dated October 17, 1990, the Department notified Petitioner that its application was denied, because:

   
   

   1. The interchange on 1-295 is "excluded from the program."

   2. The interchange does not fit the definition of "rural interchange" in that it is located in an urban area or is bordering the urbanized area of Jacksonville, and the number of eligible businesses at the interchange exceeds the logo sign's panel capacity.

3. Pursuant to unpublished policy, the Department has excluded all of 1- 295, the interstate beltway around Jacksonville, Florida, from participating in the logo program.

   
   

4. The policy was adopted at some point in time in 1987, by the Department's District Secretary. The policy was established because 1-295 is in close proximity to the core city and anticipated that development would move in that direction.

   
   

5. 1-295 is a circumferential route with crossroads that radiate into and out of the City of Jacksonville. Exiting 1-295, you can head toward Jacksonville and encounter an increasing number of services. There has been no logo signing on 1-295 in Duval County, and other areas excluded from the logo program in the District are U.S. 441 in Alachua County and 1-75, 39th Avenue and 1-75 in Alachua County, State Road 26, 24, and 121 (at 1-75).

   
   

6. Areas surrounding the interchange, including Petitioner's property, are classified as "rural areas" by the Census Bureau. The characteristics of the interchange are marked by farming, pine forests containing abundant wild life, and a large lake located on Petitioner's campground. Other than Petitioner's campground facility, there is no commercial or significant residential development located at or near the interchange, and the area is designated open-rural for zoning purposes. Petitioner's property is not serviced by city water or sewer lines. The interstate speed limit at the interchange is 65 mph, and the speed limit along Lem Turner Road at the interchange is 55 mph. Such speed limits are characteristic of a rural, rather than an urban location.

   
   

   The interchange of 1-295 and SR 115 is located in a rural setting.

   
   

7. Traveling in a northerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or residential development is encountered until the traveler reaches Callahan, Florida, a distance in excess of ten miles from the interchange.

   
   

8. Traveling in a southerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or significant residential development is encountered until reaching the Lem Turner Road/Dunn Avenue intersection, a distance of approximately one mile from the interchange.

   
   

9. Within 1.5 miles of the interchange, there are only two gas station businesses potentially eligible to participate in the logo program. Both gas stations are located at the Dunn Avenue/Lem Turner Road intersection, at a distance of 1.2 miles from the interchange.

   
   

10. Within three miles of the interchange, the only business eligible for the restaurant logo program is a McDonald's restaurant located on Lem Turner Road just south of its intersection with Dunn Avenue. None of the other restaurants located within a three mile distance of the interchange meet the restaurant eligibility requirements due to limited seating capacity or the limited hours of business. McDonald's desires to participate in the logo program at the interchange.

    
    

11. Other than Petitioner's campground, there are no other campgrounds located within three miles in either discretion along the Lem Turner crossroad from the interchange.

12. There are no lodging facilities located within three miles of the interchange. Lodging facilities are located at the Dunn Avenue/I-95 intersection, a distance over three miles but less than six miles of the 1-295 and SR 155 interchange. To reach these facilities, however, the northbound traveler must drive south on Lem Turner Road for approximately 1 mile, then turn east on Dunn Avenue and travel approximately three miles to reach the interchange of 1-95 and Dunn Avenue. For persons traveling south, the more direct route to the I- 95/Dunn Avenue interchange is to continue south on 1-95 approximately one mile rather than to turn onto 1-295.

    
    

13. The District Logo Coordinator did a survey of the volume of business in each category and determined that the panel capacity for two of the types of mother board would be exceeded within the six-mile distance. In reaching this conclusion, the Department considered businesses within six miles because the Department did not feel that there were enough qualifying businesses within three miles. However, within six miles, the Department determined there would be so many qualifying businesses that the logo mother board would be exceeded and when the logo mother board capacity is exceeded, all logo panels must come down. Therefore, the Department denied all logo panels.

    
    

14. There were qualifying or qualifiable gas station(s), restaurant(s), and campground(s) accessible from the intersection. Of the three logo categories, only lodging lacked a qualifier within three miles. Only when the radius of inquiry extended to six miles and left Lem Turner Road to go to the Dunn Avenue/I-95 interchange was a lodging qualifier found. At this point, the Department determined that there were too many lodgings and precluded all logo signs in all categories.

    
    

15. Respondent's Exhibit 1 is a map of the urbanized area in the vicinity of Jacksonville, Florida. This designation of urbanized area by the Department was approved by the Federal Highway Administration. This exhibit reveals that the 1-295/SR 115 interchange is located in the urbanized area.

    
    

16. On November 30, 1990, the Department published notice in the Florida Administrative Weekly announcing a proposed change to Chapter 14-85 of the Florida Administrative Code. Notice of the proposed rule change was not given to Petitioner individually; however, individual notice was not required.

    
    

17. The amendments to Chapter 14-85 became effective March 20, 1990. This administrative hearing was held on March 19, 1991.

    
    

18. The effect of the amendments to the rules under Chapter 14-85 removes the exception to the "Rural Interchange" definition found in Rule 14- 85.003(10)(b), and would deny Petitioner the right to erect a logo sign at the interchange if the interchange is found to be located within an urban or urbanized area. The amendment would make any interchange located within an urban or urbanized area ineligible to participate in the logo program, regardless of whether the number of eligible businesses at the interchange exceed the logo sign's capacity.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding. Section 120.57(1), Florida Statutes. The Petitioner is substantially affected by the action taken by the Department and therefore has standing to challenge the Department's actions in denying its application to participate in the logo program at the interchange.

20. The Department has been directed by the legislature to implement a "specific information panel program" in the rights-of-way of the interstate system, "to present information in the specific interest of the travelling public and to promote tourist-oriented businesses." Section 479.26(1), Florida Statutes. The Department has promulgated rules, found at Chapter 14-85, Florida Administrative Code, to implement the logo program under this legislative directive. The Department has authority to regulate the logo program pursuant to the statutes and rules.

    
    

21. Section 14-85.002, Florida Administrative Code provides:

    
    

    1. Logo signs and logo panels may be erected at any rural interchange along interstate and limited access federal aid primary highways. Logo signs and panels erected at an interchange which no longer meets the criteria for a rural interchange shall be removed upon the expiration of all permits issued for that interchange.

    2. All distances from an interchange specified in this rule chapter shall be measured from the point on the interchange crossroad which is coincident with the centerline of the Interstate of Federal-aid Primary highway median, along the interchange crossroad to the respective motorist service.

    
    

22. Section 14.85.003, Florida Administrative Code, prior to March 20, 1991, provided in part:

    
    

    (10) "Rural interchange" means:

    1. An interchange outside the limits of any urban or urbanized area as defined in Section 334.03, Florida Statutes, where either the right-of-way of an interstate or federal aid primary highway or the right-of-way of an intersection roadway constitutes the boundary of an urban or urbanized area, the interchange shall be considered urban; or

    2. An interchange within an urban or urbanized area as defined in Section 334.03, Florida Statutes, at which the number of eligible business does not exceed the limits established in Rule 14-85.005(1) for more than one of the types of logo signs.

    
    

23. Under the rule above, the Petitioner would have qualified under the exception created by subparagraph (6).

    
    

24. However, paragraph (b) above was deleted by amendment of this rule effective March 20, 1991. Because this is a de novo proceeding, this rule, as amended, must be applied; and Petitioner's application for logo certification on the urban interchange should be denied. Szkolny v. State Awards Committee, 395 So.2d 1293, 1294 (Fla. 1st DCA 1981), citing McDonald v. Department of Banking & Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

25. With the deletion of the urban exception for logo signing, issuance of any logo certification is limited to interchanges located outside the limits of any urban or urbanized area as defined by Section 334.03, Florida Statutes.

    
    

26. Section 334.04, Florida Statutes, provides in part:

    
    

    (27) "Urban area." --A geographical region comprising as a minimum the United States Bureau of Census boundary of an urban place with a population of 5,000 or more persons, expanded to include adjacent areas as provided for by Federal Highway Administration regulations.

    
    

27. Respondent's Exhibit 1 shows the boundary of the urban area, as established by the Department and the Federal Highway Administration. The interchange of SR 115 and 1-295 are within the urban boundary area as designated by the Department and accepted by the Federal Highway Administration.

Therefore, under Rule 14-85.003, Florida Administrative Code, as amended, the interchange is not a rural interchange and the logo program is not applicable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Petitioner's application for eligibility in the logo program for a location at Exit 13 on Interstate 295 be denied because said location does not qualify as a rural interchange under the current rule

DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

File with the Clerk of the

Division of Administrative Hearings this 24th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7304T

Petitioner's Proposed Findings of Fact 1-4. Adopted.

5-6. Adopted in part and combined with paragraph 4. The part

rejected was irrelevant.

1. Adopted.

2. Adopted and divided into paragraphs 7 and 8.

9-10. Adopted and restructured. 11-12. Adopted.

13-14. Conclusion of law. 15-21. Adopted.

Respondent's Proposed Findings of Fact 1-3. Adopted.

COPIES FURNISHED:

John S. Ball, Esq. Michael W. Fisher, Esq.

Fisher, Trousey, Leas & Ball 2600 Independent Square

Jacksonville, FL 32202

Vernon L. Whittier, Jr., Esq. Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, FL 32399-0458

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

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, Esq. General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

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.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

FLAMINGO LAKE RV RESORT, INC., CASE NO. 91-2014

DOAH CASE NO. 90-7304T

Appellant,

vs.

DEPARTMENT OF TRANSPORTATION,

Appellee.

/ Opinion filed June 2, 1992.

An Appeal from an order of the Department of Transportation.

Michael W. Fisher and John S. Ball of Fisher, Tousey, Leas & Ball, Jacksonville, for Appellant.

Thornton J. Williams, General Counsel, and Thomas F. Capshew, Assistant General Counsel, Department of Transportation, for Appellee.

ON REHEARING

[Original Opinion at 17 F.L.W. D947]

ERVIN, J.

Appellee's motion for rehearing is granted. Our opinion filed April 8, 1992 is withdrawn, and the following opinion is substituted therefor.

EXHIBIT A

Appellant, Flamingo Lake RV Resort, Inc. ("Flamingo Lake"), operates a camping facility in Duval County at the interchange of I-295 and State Road 115 (Lem Turner Road). Flamingo Lake applied to the Department of Transportation (the department), pursuant to Section 479.26, Florida Statutes (Supp. 1990), and Florida Administrative Code Chapter 14-85, to participate in the logo sign program at the interchange. The department denied the application. After an administrative hearing, the hearing officer recommended denial of the application, and the department issued a final order denying the application.

We reverse and remand.

The hearing officer concluded that Flamingo Lake qualified for the program under former rule 14-85.003(10), but that the rule was amended and replaced by rule 14-85.003(15), which eliminated Flamingo Lake's eligibility as a "rural

interchange" for the logo sign program, on March 20, 1991, the day following the hearing at bar. In its final order, the department adopted the hearing officer's findings of fact and conclusions of law, but indicated that the amended rule did not apply retroactively to Flamingo Lake's application. Sexton Cove Estates, Inc. v. Pollution Control Bd., 325 So.2d 468, 470 (Fla. 1st DCA 1976); Gulf Stream Park Racing Ass'n. Inc. v. Division of Pari-Mutuel Wacierin. Dep't of Business Req., 407 So.2d 263, 265 (Fla. 3d DCA 1981). Nevertheless, the department relied upon an incipient nonrule policy that prohibits logo sign panels from being erected at any interchange on I-295.

Section 479.26(2)(a) authorizes the department to determine "not to permit specific information panels in areas where the department deems their placement would be contrary to the overall (Emphasis added.) The department presented no evidence that placing sign panels at interchanges along I-295 would be contrary to the legislative intent contained in Section 479.015, Florida Statutes (1989). Moreover, we know of no authority that would legitimize an agency's adoption of a nonrule policy which takes away that which a properly promulgated rule explicitly provides.

Accordingly, we REVERSE the final order and REMAND this case with directions to the department to grant Flamingo Lake's application to participate in the logo sign program. 1/

BOOTH and ZEHMER, JJ., CONCUR.

ENDNOTE

1/ In so holding, we note that Section 479.26(3), Florida Statutes (Supp. 1990), provides that the department may adopt a procedure permitting a private business to "pay the initial cost for the erection of information panels."

Docket for Case No: 90-007304

Orders for Case No: 90-007304