STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVOSTA AND COMPANY, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-5401

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on March 18, 1999, by video teleconference at sites in West Palm and Tallahassee, Florida, before Stuart M. Lerner, a duly designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mikel D. Greene, Esquire

4500 PGA Boulevard, Suite 400

Palm Beach Gardens, Florida 33418

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

Whether Petitioner's outdoor advertising sign permit applications should be granted.

PRELIMINARY STATEMENT

On October 7, 1998, the Department of Transportation (Department) issued a notice advising Petitioner that its

applications for two outdoor advertising sign permits were being denied because "[t]he land use designation for the subject site [on which the signs are located] is residential," which, according to the notice, is an "unpermittable land use designation." Petitioner subsequently requested a Section 120.57(1) hearing on the matter. On December 7, 1998, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the Section 120.57(1) hearing Petitioner had requested.

As noted above, the hearing was held on March 18, 1999.

Four witnesses testified at the hearing: Richard Greene, Ralph Paciello, Fred Harper, and Lynn Holschuh. In addition to the testimony of these four witnesses, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1 through 23, and 25 through 30, and Respondent's Exhibits 5

through 8, and 15 through 21.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than 30 days from the date that the transcript of the hearing was filed with the Division of Administrative Hearings. The Transcript was filed with the Division of Administrative Hearings on March 31, 1999. On

April 29, 1999, and April 30, 1999, respectively, the Department and Petitioner filed their Proposed Recommended Orders. These

post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made:

Petitioner's Signs

1. On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate

   95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967.

2. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use.

3. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The

   messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994.

4. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs

5. Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use.

   Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35.

   
   

6. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use.

7. The Department has annually renewed the sign permits for these signs since at least 1973.

8. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.)

9. The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35.

10. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968).

11. These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted.

    Signs Assigned Permit Numbers AN661-35 and BG910-35

    
    

12. Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984.

13. This area of I-95 has been a part of the interstate highway system since at least April of 1976.

14. The two signs were erected after August of 1984.

    
    

15. They currently are assigned permit numbers AN661-35 and BG910-35.

16. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned."

17. On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct."

18. In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued.

19. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area.

    Signs Assigned Permit Numbers AX549 and AX550

    
    

20. State Road 80 in Section 35, Township 43 South, Range

    
    

    40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973.

21. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of

    State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs).

22. These signs currently are assigned permit numbers AX549 and AX550.

23. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979.

24. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department.

25. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs.

26. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs.

27. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial.

28. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs:

    The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance.

29. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and

    reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding.

    Signs Along the Florida Turnpike

    
    

30. State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state.

31. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use.

32. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996.

33. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign

    permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.

    CONCLUSIONS OF LAW

    
    

34. In the instant case, Petitioner is contesting the Department's preliminary determination to deny its applications for outdoor advertising sign permits for two existing signs located along I-95 in Palm Beach County, Florida.

35. The burden was on Petitioner, at the final hearing held in this case, to establish, by a preponderance of the evidence, its entitlement to the permits it is seeking. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996); Pershing Industries, Inc. v. Department of Banking and Finance, 591 So. 2d 991, 994 (Fla. 1st DCA 1991); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 787-88 (Fla. 1st DCA 1981); Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

36. To be entitled to an outdoor advertising sign permit from the Department, an applicant must demonstrate that the sign

    in question meets the requirements set forth in Chapter 479, Florida Statutes, for such a sign.

37. Among the requirements that signs like Petitioner's which are "within controlled portions of the interstate highway system" must meet are those found in Section 479.111, Florida Statutes, which provides as follows:

    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):5

    1. Directional or other official signs and notices which conform to 23 C.F.R. ss. 750.151-750.155.

       
       

    2. Signs in commercial-zoned and industrial-zoned areas6 or commercial-unzoned and industrial-unzoned areas7 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.

       
       

    3. Signs for which permits are not required under s. 479.16.8

38. Existing signs that do not meet these requirements and therefore are not permitted are subject to removal pursuant to Section 479.105, Florida Statutes; however, if an existing sign is "nonconforming," as defined in Section 479.01(14), Florida Statutes (that is, "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"), the Department must act in accordance with Section 479.24, Florida Statutes, which provides as follows:

    1. Just compensation shall be paid by the department upon the department's removal of a lawful nonconforming sign along any portion of the interstate or federal-aid primary highway system. This section does not apply to a sign which is illegal at the time of its removal. A sign will lose its nonconforming status and become illegal at such time as it fails to be permitted or maintained in accordance with all applicable laws, rules, ordinances, or regulations other than the provision which makes it nonconforming. A legal nonconforming sign under state law or rule will not lose its nonconforming status solely because it additionally becomes nonconforming under an ordinance or regulation of a local governmental entity passed at a later date. The department shall make every reasonable effort to negotiate the purchase of the signs to avoid litigation and congestion in the courts.

    2. The department is not required to remove any sign under this section if the federal share of the just compensation to be paid upon removal of the sign is not available to make such payment, unless an appropriation by the Legislature for such purpose is made to the department.

       
       

       (3)(a) The department is authorized to use the power of eminent domain when necessary to carry out the provisions of this chapter.

       
       

       (b) If eminent domain procedures are instituted, just compensation shall be made pursuant to the state's eminent domain procedures, chapters 73 and 74.

       
       

39. The Department preliminarily denied Petitioner's outdoor advertising sign permit applications in the instant case

    because Petitioner's Signs are "in an unpermittable land use designation," to wit: "residential."

40. Inasmuch as the parties have stipulated that Petitioner's Signs are located on property "within 660 feet of the nearest edge of the right-of-way [of a part of] I-95" that "has been zoned or designated for residential use, and not predominately commercial or industrial use," it is beyond dispute that these signs are not among those "permittable" signs described in Section 479.111(2), Florida Statutes. Indeed, Petitioner does not claim otherwise; nor does it contend that its Signs are "allowed" pursuant to Section 479.111(1) or (3), Florida Statutes. Rather, it is Petitioner's position that it is entitled to the permits that it is seeking, notwithstanding the location of his Signs, because the Department, in the past, in other cases, has issued permits for signs "similarly situated" to its Signs, specifically those discussed in the "Findings of Fact" of this Recommended Order. According to Petitioner, the Department is "selectively enforcing or applying its rules and regulations and is treating [Petitioner] significantly different from the way the above-described similarly situated applicants or sign owners have been treated." This, Petitioner, argues, "is a violation of the equal protection clause of the United States Constitution, Amendment XIV." Petitioner's argument is not persuasive.

41. Persons, like Petitioner, claiming to have been denied equal protection as a result of "selective" governmental agency action bear the heavy burden of establishing, not only that they have been singled out and treated differently and less favorably by the agency than similarly situated persons, but also that their unequal treatment was the product of vindictiveness or some other impermissible motive on the part of the agency. It is not sufficient to merely demonstrate that others, similarly situated, have been afforded more favorable treatment. A showing of bad faith on the part of the agency is required. An agency is not obligated to overlook the requirements of a statute it is charged with administering simply because it has erroneously (without any unlawful intent) failed to enforce these requirements in the past. To the contrary, it has an obligation to not repeat its previous mistakes and to carry out the Legislature's will and intent, as expressed in the statute. To hold otherwise would, in effect, give the agency authority it should not have: the authority to vitiate an enactment of the Legislature by its actions. See Palm Harbor Special Fire Control District v. Kelly,

    516 So. 2d 249 (Fla. 1987)("[I]t is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable."); Bell v. State, 369 So. 2d 932 (Fla. 1979)("In order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification. . . . The mere

    failure to prosecute all offenders is no ground for a claim of denial of equal protection."); Secretary of State v. Milligan, 704 So. 2d 152, 158 (Fla. 1st DCA 1997)("[A]n administrative agency has no power to declare a statute void or otherwise unenforceable and there is no obligation to defer to an agency interpretation that results in a statute being voided by administrative fiat."); State v. A.R.S., 684 So. 2d 1383, 1384 (Fla. 1st DCA 1996)("In making a claim of selective prosecution, a defendant bears a heavy burden. To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and

    (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."); Thomas v. State, 583 So. 2d 336, 340 (Fla. 5th DCA 1991)("In order to constitute a denial of equal protection the selective enforcement must be deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification. . . . The mere failure to prosecute all offenders is not grounds for a claim of denial of equal protection. . . . There has been no showing that enforcement of

    the Orlando Municipal Ordinance in this instance was deliberately based on an arbitrary classification. . . . While there is a judicial remedy for law enforcement abuses, such as pretextual stops and selective enforcement practices, that remedy is not for the courts to hold invalid the statute or ordinance being abused. Otherwise law enforcement officers, members of the executive branch of government, could, by abusive enforcement practices, cause the judicial branch to invalidate statutes or ordinances, validly enacted by the legislative branch. This would violate constitutional provisions embodying separation of powers doctrine."); State v. Clayton, 517 So. 2d 40 (Fla. 4th DCA 1987)("The state appeals the dismissal of an information based on the trial court's finding of selective enforcement and other alleged misconduct on the part of the state. We reverse because the record does not support such a finding of selective enforcement or other misconduct. The appellees have failed to show that they were prosecuted because of an unjustifiable or arbitrary classification or that they were singled out for prosecution."); Meristem Valley Nursery, Inc. v. Metropolitan Dade County, 428 So. 2d 726, 728 (Fla. 3d DCA 1983)("We may summarily dispose of Meristem's constitutional argument as there is no denial of equal protection as a result of the County's enforcement of the ordinances against Meristem in this case. The ordinances themselves are valid on their face. Meristem's contention that County ordinances are never enforced with respect

    to trailers and shade houses and that by singling out Meristem for unequal treatment because of a citizen's complaint the law is unconstitutional as applied finds no support in the record or the law. The Florida Supreme Court has held that mere failure to prosecute all offenders is no ground for a claim of denial of equal protection, and that in order to constitute such a denial, selective enforcement must be deliberately based on an unjustifiable or arbitrary classification.); City of Miami Beach v. Lincoln Investments, Inc., 214 So. 2d 496, 498 (Fla. 3d DCA 1968)("The failure of a governing authority to enforce the law properly is not a ground for the courts to disregard that law."); City of Miami v. Walker, 169 So. 2d 842, 843 (Fla. 3d DCA 1964)("We observe that the chancellor placed considerable weight, as do the appellees, upon the fact that the City of Miami has permitted several hundred filling stations within the distance prohibitions of the ordinance and has granted some 75 variances from this requirement. Although great weight has been placed on this fact by the chancellor and the appellees, nevertheless it is without a conclusion that the city has waived or is otherwise equitably estopped from enforcing the terms of the ordinance.

    Whether the city has permitted several hundred or only a few filling stations to be within the prohibited distance requirement of the ordinance is conclusive of nothing insofar as appellees are concerned."); Barber v. Municipality of Anchorage, 776 P.2d 1035, 1041 (Alaska 1989)("Barber presented evidence, and the

    Municipality admitted, that the Municipality has not uniformly enforced the sign ordinance. Even in the face of citizen complaints about existing temporary and off-premises signs, the evidence indicates that the Municipality has enforced the ordinance primarily, if not exclusively, against portable signs. Barber argues that this selective enforcement against portable signs deprived him of equal protection of the laws. Selective enforcement of a statute violates the equal protection clause only if it is part of a deliberate and intentional plan to discriminate based on an arbitrary or unjustifiable classification. . . . The constitutional claimant has the initial burden of producing evidence demonstrating discriminatory intent. . . . Viewed in the light most favorable to Barber, the evidence shows only that the Municipality enforces the portable sign prohibition more stringently than it enforces some of the other prohibitions.); Jackson v. Kenai Peninsula Borough, 733 P.2d 1038 (Alaska 1987)("A city's inactivity is not necessarily wrong; it may be the result of a reasonable decision to use limited enforcement resources for other matters. Indeed, a zoning board cannot police every possible violation. The remedy of nonenforcement of a law is a drastic one for such 'fault.'"); Ardt v. Department of Professional Regulation, 578 N.E.2d 128, 133-34 (Ill. App. 1991), aff'd, 607 N.E.2d 1226 (Ill.

    1992)("Ardt's next argument is that he was denied equal protection of law through the selective enforcement of the

    advertising provisions of the Dental Practice Act. We

    
    

    agree with the Department of Regulation that Ardt's assertion as it stands does not support an allegation of discrimination in the enforcement of the Dental Practice Act. . . . Ardt has not argued that he was singled out for an invidious reason, such as race or political beliefs. The State is not required to enforce its laws with exacting thoroughness at the price of not enforcing them at all."); J.B. Advertising, Inc. v. Sign Board of Appeals of the City of Carrollton, 883 S.W.2d 443, 448 (Tex. App 1994)("Discriminatory enforcement, as a defense to an enforcement proceeding, is derived from the constitutional guarantees of equal protection under U.S. CONST. amend. XIV, S 1; TEX. CONST. art. I, S 3. To establish a claim of discriminatory enforcement, it must first be shown that a person or entity has been singled out for enforcement while others similarly situated have

    not. . . . Appellants point to summary judgment evidence that there were other signs in violation of the sign code which were not subjected to enforcement action by the building official.

    However, it is not enough to show that the law has been enforced against some but not others. It must also be shown that the government has purposefully discriminated on the basis of such impermissible considerations as race, religion, or the desire to prevent the exercise of constitutional rights. A

    discriminatory purpose is never presumed; and the party asserting

    discriminatory enforcement must establish a clear intentional discrimination in enforcement of the law.").

42. Petitioner has not met its heavy burden of establishing that the Department's preliminary denial of its applications for outdoor advertising sign permits for its Signs constituted "selective" enforcement of the land use requirements of Chapter 479, Florida Statutes. There has been no showing that, in taking such preliminary action, the Department, for invidious reasons, intentionally deviated from any past practices or policies it had followed in other cases involving circumstances substantially the same as those present in the instant case, which involves signs located within a "controlled" area of I-95 that, as Petitioner indicated in its outdoor advertising sign permit applications (which were filed almost 20 years after this portion of I-95 became a part of the interstate highway system) is not "commercial or industrial zoned" or "commercial or industrial unzoned" and that has been zoned or designated for residential use since the signs' erection in 1987 (after the effective date of the January 27, 1972 agreement between the State of Florida and the United States Department of Transportation).

43. Inasmuch as it has not been shown that Petitioner's Signs meet the requirements of Chapter 479, Florida Statutes, to be eligible to receive outdoor advertising sign permits, and it has not been demonstrated that there exists any lawful basis upon which to waive or otherwise ignore these requirements and grant

the requested permits, Petitioner's applications for such permits should be denied.

RECOMMENDATION

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

RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs.

DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.

ENDNOTES

1/ There being no reason not to do so, the undersigned has accepted the stipulations of fact contained in the parties' Prehearing Stipulation." See Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which is appropriate to stipulate is binding upon the parties and the Court."); Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of encouraging stipulations to minimize litigation and expedite resolution of disputes, the law provides that '(s)uch stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or

mistake, and not against public policy."); EGYB, Inc. v. First Union National Bank of Florida, 630 So. 2d 1216, 1217 (Fla. 5th DCA 1994)("Unless grounds for recission or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties.").

2/ As used herein, the term "sign" refers to "sign facing," as defined in Section 479.01, Florida Statutes.

3/ Section 5 of Chapter 71-971, Laws of Florida, amended subsection (1) of Section 479.11, Florida Statutes, to prohibit the construction, erection, use, operation or maintenance of any outdoor advertising signs "[w]ithin six hundred sixty (660) feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in [Section] 479.111," Florida Statutes, which was created by Section 6 of Chapter 71-971, Laws of Florida, and provided, at the time of its creation, in pertinent part, as follows:

479.111 Certain advertising signs permitted.- Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems: . . .

(2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by [Section] 479.02.

The agreement referred to in Section 479.111(2), Florida Statutes, was between the State of Florida and the United States Department of Transportation. In the agreement, the State of Florida agreed to, in accordance with criteria set forth in the agreement, "effectively control, or cause to be controlled, the erected, erection, and maintenance of outdoor advertising signs, displays, and devices subsequent to the effective date of this agreement" (January 27, 1972) in all zoned and unzoned commercial or industrial areas within 660 feet of the nearest edge of the right-of-way of all portions of the interstate and federal-aid primary highway systems in the state.

4/ Other than these entries on the application forms, there is no record evidence indicating the month and year in which the Predecessor Signs were erected.

5/ Section 479.11(1) and (2), Florida Statutes, provide as follows:

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.

   
   

2. Beyond 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 outside an urban area, which sign is erected for the purpose of its message being read from the main-traveled way of such system, except as provided in ss. 479.111(1) and 479.16.

6/ A "commercial or industrial zone," as used in Chapter 479, Florida Statutes, is defined in Section 479.01(3), Florida Statutes, as follows:

"Commercial or industrial zone" means an area within 660 feet of the nearest edge of the right-of-way of the interstate or federal-aid primary system designated predominately for commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to chapter 163. Where a local governmental entity has not enacted a comprehensive plan by local ordinance but has zoning regulations governing the area, the zoning of an area shall determine whether the area is designated predominately for commercial or industrial uses.

7/ An "unzoned commercial or industrial area," as used in Chapter 479, Florida Statutes, is defined in Section 479.01(23), Florida Statutes, as follows:

"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 where the land use is not covered by a future land use map or zoning regulation pursuant to subsection (2), in which there are located three or more separate and distinct industrial or commercial uses located within a 1,600-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:

1. Signs.

   
   

2. Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.

   
   

3. Transient or temporary activities.

   
   

4. Activities not visible from the main- traveled way.

   
   

5. Activities conducted more than 660 feet from the nearest edge of the right-of-way.

   
   

6. Activities conducted in a building principally used as a residence.

   
   

7. Railroad tracks and minor sidings.

8/ Section 479.16, Florida Statutes, provides as follows:

The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter but are required to comply with the provisions of s. 479.11(4)-(8):

1. Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which comply with the lighting restrictions under department rule adopted pursuant to s. 479.11(5). If a sign located on the premises of an establishment consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection.

2. Signs erected, used, or maintained on a farm by the owner or lessee of such farm and relating solely to farm produce, merchandise, service, or entertainment sold, produced, manufactured, or furnished on such farm.

   
   

3. Signs posted or displayed on real property by the owner or by the authority of the owner, stating that the real property is for sale or rent. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.

   
   

4. Official notices or advertisements posted or displayed on private property by or under the direction of any public or court officer in the performance of her or his official or directed duties, or by trustees under deeds of trust or deeds of assignment or other similar instruments.

   
   

5. Danger or precautionary signs relating to the premises on which they are located; forest fire warning signs erected under the authority of the Division of Forestry of the Department of Agriculture and Consumer Services; and signs, notices, or symbols erected by the United States Government under the direction of the United States Forestry Service.

   
   

6. Notices of any railroad, bridge, ferry, or other transportation or transmission company necessary for the direction or safety of the public.

   
   

7. Signs, notices, or symbols for the information of aviators as to location, directions, and landings and conditions affecting safety in aviation erected or authorized by the department.

   
   

8. Signs or notices erected or maintained upon property stating only the name of the owner, lessee, or occupant of the premises and not exceeding 8 square feet in area.

9. Historical markers erected by duly constituted and authorized public authorities.

   
   

10. Official traffic control signs and markers erected, caused to be erected, or approved by the department.

    
    

11. Signs erected upon property warning the public against hunting and fishing or trespassing thereon.

    
    

12. Signs not in excess of 8 square feet that are owned by and relate to the facilities and activities of churches, civic organizations, fraternal organizations, charitable organizations, or units or agencies of government.

    
    

13. Except that signs placed on benches, transit shelters, and waste receptacles as provided for in s. 337.408 are exempt from all provisions of this chapter.

    
    

14. Signs relating exclusively to political campaigns.

    
    

15. Signs not in excess of 16 square feet placed at a road junction with the State Highway System denoting only the distance or direction of a residence or farm operation, or, in a rural area where a hardship is created because a small business is not visible from the road junction with the state highway system, one sign not in excess of 8 square feet, denoting only the name of the business and the distance and direction to the business. The small-business-sign provision of this subsection does not apply to charter counties and may not be implemented if the Federal Government notifies the department that implementation will adversely affect the allocation of federal funds to the department.

COPIES FURNISHED:

Mikel D. Greene, Esquire

4500 PGA Boulevard, Suite 400

Palm Beach Gardens, Florida 33418

Robert M. Burdick, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Thomas F. Barry, Secretary

Attn: James C. Myers, Clerk of Agency Proceedings Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-005401

Orders for Case No: 98-005401