STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSET KING RESORT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7322T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in DeFuniak Springs, Florida before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on February 26, 1991.

APPEARANCES

The parties are represented as follows:

FOR PETITIONER: William K. Jennings

119 E Park Avenue Tallahassee, Florida 32301

FOR RESPONDENT: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

The issue at the hearing was whether Petitioner's existing sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, should be permitted.

PRELIMINARY STATEMENT

On October 12, 1990, Petitioner, Sunset King Resort, applied to the Department of Transportation for an outdoor advertising sign permit for an existing double-faced sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. By Memorandum of Returned Application, dated December 7, 1990, 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.

At the hearing, Petitioner called two witnesses to testify and offered one exhibit into evidence. Respondent called one witness and offered three exhibits into evidence.

Petitioner and Respondent filed Proposed Recommended Orders on May 6, 1991, and March 15, 1991, 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

1. Petitioner owns the sign located on the west side of and adjacent to

   U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit.

   
   

2. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection.

   
   

3. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan.

   
   

4. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County.

   
   

5. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted.

   
   

6. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as

   well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county.

   
   

7. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this action. Section 120.57(1) Florida Statutes.

   
   

9. 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.

   
   

10. Section 479.11, Florida Statutes, provides in part: No sign shall be erected, used, operated or maintained:

    
    

    1. Within 660 feet of any portion of the interstate highway system or federal-aid primary system, except as provides in Section 479.111....

       
       

11. 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.

    
    

12. Section 479.07(10) states in pertinent part:

    
    

    (10) Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes

    of this provision, and permits shall not be issued for signs in such areas. . . .

13. Rule 14-10.0051, Florida Administrative Code, is the Rule which established the Department's criteria for determining whether an ordinance is comprehensively enacted or whether an ordinance was enacted primarily for the purpose of permitting signs. Rule 14-10.0051, Florida Administrative Code, states in pertinent part:

    
    

    1. The following definitions shall apply:

       1. "Comprehensively enacted zoning" means a method of control which directs the use and development of property in a municipality or political subdivision by dividing it into districts according to the present and potential use of the property, pursuant to a comprehensive plan.

       2. "Comprehensive plan" means a development plan which is to serve as a guide for future decisions relating to zoning and the growth and development of the area.

    2. Criteria for Signs in Zoned Commercial and Industrial Areas.

       1. Where a local jurisdiction has commercial

          and industrial zoning, the following criteria will be applied by the Department to determine for outdoor advertising control purposes whether

          such zoning is comprehensively enacted:

          1. The zoning considers all reasonable land uses.

          2. The zoning designates or reserves for future designation all areas of the jurisdiction.

          3. The zoning is consistent with the purposes of the ordinance.

       2. Even if comprehensively enacted, the following criteria shall be considered in determining whether such zoning is enacted primarily to permit signs:

       1. The zoning classification provides for limited commercial or industrial activity only as an incident to other primary land uses.

       2. The commercial and industrial activities, separately or together, are permitted only by variance or special exceptions.

       3. The zoning is not consistent with the comprehensive plan.

       4. The physical dimensions or configurations of affected parcels would not reasonably accommodate typical commercial or industrial uses.

       5. Areas which constitute spot zoning.

    3. 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:

       The facts and evidence show that the subject property was zoned, in a comprehensive manner, in accordance with statutory authority. Therefore, the statutes and rules related to permitting signs in unzoned commercial areas do not apply.

       
       

14. The "agreement" referred to in Section 479.111(2), Florida Statutes, was entered into on January 27, 1972. This agreement was adopted into the laws of Florida at Section 14-10.009(2), Florida Administrative Code.

    
    

15. 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, United States Code.

    
    

16. 23 U.S.C. Section 131(d) provides:

    
    

    (d) 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 be 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 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).

17. 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' purpose and intent of protecting travelers from billboard signs in noncommercial areas. Aper v. State, 621P.2d 492, 96 NEV. 92A (1980). See: In re Columbus Outdoor Advertising Co.; 367 N.E. 2d 920, 51 Ohio App.2d 187 (1987); Lamar - Orlando, ETC. v. City of Ormond Beach, 415 So.2d 1312 (Fla. 5th DCA 1982); and Art Neon Co. v. City and County of Denver, 488 F.2d 118 (10th Cir. 1973). 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. 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.

    
    

18. As stated earlier, 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 Walton County would permit the subject sign to remain standing is irrelevant to the Department of Transportation's determination of whether State laws and regulations entitle the Petitioner 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.

    
    

19. 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).

    
    

20. In this case, 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 not zoned commercial or industrial, the sign is not in a commercially or industrially 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 maintain a

sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied.

DONE and ENTERED this 5th day of June, 1991, at Tallahassee, 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 5th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER

The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material.

The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate.

The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence.

The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial.

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material.

The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate.

COPIES FURNISHED:

William K. Jennings

119 E. Park Avenue Tallahassee, Florida 32301

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 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.

Docket for Case No: 90-007322

Orders for Case No: 90-007322