STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILTON MANORS STREET SYSTEMS, INC.,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

Case No. 15-1321

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings for final hearing on October 29, 2015, in Tallahassee, Florida.

APPEARANCES

For Petitioner: J. Stephen Menton, Esquire

Rutledge Ecenia, P.A. Suite 202

119 South Monroe Street Tallahassee, Florida 32301

For Respondent: Susan Schwartz, Esquire

Florida Department of Transportation Haydon Burns Building

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

Whether the State of Florida, Department of Transportation (“Department”), properly denied Wilton Manors Street Systems,

Inc.’s (“Wilton Manors”), applications for outdoor advertising

sign permits.

PRELIMINARY STATEMENT

On September 6, 2012, the Department issued Wilton Manors a Notice of Denied Outdoor Advertising Permit Application, advising that Wilton Manors’ applications for double-faced outdoor advertising sign permits were not approved because of the following reasons:

Location is not permittable under land use designations of site. [s.479.111(2), FS]

Location does not qualify as unzoned commercial/industrial area. [s.479.01(26), FS]

On December 14, 2012, Wilton Manors filed a Petition for Formal Administrative Hearing to challenge the Department’s denial of its applications. By agreement of the parties, referral of the petition to the Division of Administrative Hearings (“DOAH”) was deferred.

In 2014, while the petition remained pending before the Department, statutory changes were made to chapter 479, Florida Statutes, to include a new section 479.024, effective July 1, 2014. After the new law became effective, Wilton Manors supplemented its permit applications to include additional information. The Department re-examined the applications, but did not amend its initial denial of the applications.

On March 13, 2015, the matter was referred by the Department to DOAH to assign an Administrative Law Judge to conduct the final hearing. This matter was initially set for final hearing on May 13 and 14, 2015, but was continued twice. On July 2, 2015, the undersigned entered an Order granting the second request for a continuance, and rescheduled the final hearing for October 28 and 29, 2015.

On October 16, 2015, the parties filed an Agreed Motion Regarding Presentation of Evidence, requesting that the undersigned allow the presentation of testimony of two

out-of-town witnesses, Andre Parks and Michael Rumpf, via deposition transcript following the scheduled hearing date. On October 23, 2015, the undersigned entered an Order granting the motion.

On October 19, 2015, the parties filed their Joint

Pre-hearing Stipulation, in which they stipulated to certain facts, issues of law, and the admissibility of certain joint exhibits. The parties’ stipulations are incorporated in this Recommended Order as indicated below.

The final hearing took place on October 29, 2015, as scheduled, with both parties present. Five joint exhibits were received into evidence prior to the introduction of testimony. At hearing, Wilton Manors presented the testimony of Daniel

Hardin. Wilton Manors’ Exhibits 1, 2A through 2D, 3A and 3B, and

4A through 4E were received into evidence. At hearing, the Department presented the testimony of Ken Pye and David Depew. The Department’s Exhibits 1 through 5 were received into evidence.

At the conclusion of the final hearing, the parties agreed that proposed recommended orders would be due ten days after the date of filing of the last transcript. The two-volume hearing Transcript was filed at DOAH on November 30, 2015.

Pursuant to the parties’ agreement and the undersigned’s Order dated October 23, 2015, the deposition testimony transcript of Wilton Manors’ witness Michael Rumpf was filed at DOAH on December 21, 2015. In the Notice of Filing Deposition of Michael Rumpf dated December 21, 2015, Wilton Manors advised it no longer intended to take or submit the deposition of Andre Parks.

The parties timely filed their proposed recommended orders, which have been considered in the preparation of this Recommended Order.

All references to the Florida Statutes are to the 2014 version, unless otherwise indicated.

FINDINGS OF FACT

1. Wilton Manors is a for-profit corporation authorized to engage in the business of outdoor advertising in the state of Florida.

   
   

2. The Department is the agency vested with the responsibility to administer and enforce the provisions of chapter 479, Florida Statutes, including the approval and denial of applications for permits for outdoor advertising signs that are located within 660 feet of the State Highway system, interstate, or federal-aid primary system.

3. In July 2012, Wilton Manors entered into a lease agreement with the City of Boynton Beach (“City”) for the construction of a two-sided billboard on a portion of real estate owned by the City on the east side of Interstate 95, located at

   510 Northwest 14th Court, Boynton Beach, Florida. The site is located in an area commonly known as the City of Boynton Beach Public Works Site.

4. The Public Works Site consists of two parcels bordered by Interstate 95 to its west. The north and south portions of the property totals approximately nine acres. The two parcels are contiguous and have the same zoning and future land use classification. Each parcel consists of approximately four and one-half acres. The subject sign is proposed to be placed on the far northwest section of the southern parcel near the border of the northern and southern parcels.

5. On August 9, 2012, Wilton Manors submitted two applications (application numbers 58994 and 58995) to the Department for a double-faced outdoor advertising sign to be

   
   

   located on the east side of Interstate 95, 0.75 miles north of Boynton Beach Boulevard. The applications were assigned file numbers 58994 and 58995.

6. The applications were complete and the appropriate fee was provided.

7. The proposed sign structures met the size, height, and spacing requirements of section 479.07, Florida Statutes.

8. The proposed sign would be visible and within 660 feet of an interstate.

9. On September 6, 2012, the Department issued Wilton Manors a Notice of Denied Outdoor Advertising Permit Application, advising that Wilton Manors’ applications for double-faced outdoor advertising sign permits were not approved because of the following reasons:

   Location is not permittable under land use designations of site. [s.479.111(2), FS]

   
   

   Location does not qualify as unzoned commercial/industrial area. [s.479.01(26), FS]

   
   

10. On December 14, 2012, Wilton Manors filed a Petition for Formal Administrative Hearing to challenge the Department’s denial of its applications. By agreement of the parties, referral of the petition to the DOAH was deferred.

11. In 2014, while the petition remained pending before the Department, statutory changes were made to chapter 479, to

    
    

    include a new section 479.024, effective July 1, 2014. After the new law became effective, Wilton Manors supplemented its permit applications and submitted additional information to the Department.

12. The supplemental information provided by Wilton Manors to the Department in response to the statutory changes included a certification from Michael Rumpf, the City’s Planning and Zoning Director since 1999. Mr. Rumpf completed the portion of the Department’s application regarding land use, certifying the designation of the Future Land Use Map for the parcel as Public, Private Governmental and Institutional (“P, PG & I”), and the current zoning of the parcel as Public Usage (“PU”).

13. Mr. Rumpf confirmed that the parcel is in an industrial zone or commercial zone in accordance with the new statute.

    Mr. Rumpf certified and checked the box “yes” under the question: “Does the referenced property qualify as a commercial or industrial parcel as defined in section 479.024, F.S. and section 14-10.0052, F.A.C.” Prior to executing the verification form, Mr. Rumpf reviewed the new statute and definitions of industrial use and commercial use in the statute.

14. The Department requested that its expert in the area of land use and comprehensive zoning, David Depew, review the supplemental application and information submitted by Wilton Manors to the Department and determine whether the proposed

    
    

    parcel is in an industrial zone or commercial zone as defined in the new section 479.024. Mr. Depew concluded that it is not, and therefore, the Department did not alter its initial decision to deny Wilton Manors’ permit application based on the changes to chapter 479.

15. The central factual issue to be determined in this case by the undersigned is whether the subject parcel is located within a commercial or industrial zone as defined in section 479.024.

16. The City determined that the parcel is located within a commercial or industrial zone, in compliance with chapter 163, Florida Statutes.

17. The parcel is appropriate for commerce, industry, or trade.

18. The parcel is comprehensively zoned PU, and the City’s land development regulations include commercial or industrial uses as allowable uses.

19. The parcels were previously used by the City for its wastewater treatment plant. The parcels continue to be actively used by the City for industrial uses and as an industrial site for the staging of waste collection, vegetative debris, recycling activities, and the storage of equipment, materials, and supplies in connection with the City’s solid waste management system and public works.

    
    

20. Many large industrial waste-type dumpsters and recycling bins are located on the parcels. The storage of the recycling bins is part of the City’s recycling service which generates revenue for the City. Large trucks access the property on a regular basis. An existing cell tower on the northern parcel services both public and private users.

21. The parcel can reasonably accommodate a commercial or industrial use under the future land use map of the City’s comprehensive plan and land development regulations.

22. Sufficient utilities are available to support commercial or industrial development.

23. The public access to the parcel is sufficient to accommodate a commercial or industrial use. Currently, the City utilizes large commercial trucks in its conduct of the aforementioned industrial operations.

24. The parcel is not being used exclusively for noncommercial or nonindustrial uses.

25. In sum, the persuasive evidence establishes that the parcel is located within a commercial or industrial zone.

    CONCLUSIONS OF LAW

    
    

26. DOAH has jurisdiction over the subject matter and the parties pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015).

    
    

27. As the applicant for the permits, Wilton Manors bears the burden of proving, by a preponderance of the evidence, that it should be granted the permits. Fla. Dep’t of Transp. v.

    J.W.C. Co., Inc., 369 So. 2d 778, 788 (Fla. 1st DCA 1981).

    
    

28. The Department’s denial of Wilton Manors’ applications is based on section 479.024, Florida Statutes (2014). Section

    479.024 was enacted in 2014. This case is the first formal administrative proceeding involving the application of the new section 479.024. Section 479.024 provides as follows:

    479.024 Commercial and industrial parcels.-- Signs shall be permitted by the department only in commercial or industrial zones, as determined by the local government, in compliance with chapter 163, unless otherwise provided in this chapter. Commercial and industrial zones are those areas appropriate for commerce, industry, or trade, regardless of how those areas are labeled.

    1. As used in this section, the term:

       1. “Parcel” means the property where the sign is located or is proposed to be located.

       2. “Utilities” includes all privately, publicly, or cooperatively owned lines, facilities, and systems for producing, transmitting, or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, and stormwater not connected with the highway drainage, and other similar commodities.

    2. The determination as to zoning by the local government for the parcel must meet all of the following criteria:

    1. The parcel is comprehensively zoned and includes commercial or industrial uses as allowable uses.

    2. The parcel can reasonably accommodate a commercial or industrial use under the future land use map of the comprehensive plan and

       
       

       land use development regulations, as follows:

       1. Sufficient utilities are available to support commercial or industrial development; and

       2. The size, configuration, and public access of the parcel are sufficient to accommodate a commercial or industrial use, given the requirements in the comprehensive plan and land development regulations for vehicular access, onsite circulation, building setbacks, buffering, parking, and other applicable standards or the parcel consists of railroad tracks or minor sidings abutting commercial or industrial property that meets the criteria of this subsection.

    3. The parcel is not being used exclusively for noncommercial or nonindustrial uses.

    
    

29. Section 479.01(4) defines “Commercial use” as follows:

    
    

    (4) “Commercial use” means activities associated with the sale, rental, or distribution of products or the performance of services. The term includes, but is not limited to, such uses or activities as retail sales; wholesale sales; rentals of equipment, goods, or products; offices; restaurants; food service vendors; sports arenas; theaters; and tourist attractions.

    
    

30. Section 479.01(10) defines “Industrial use” as follows:

    
    

    (10) “Industrial use” means activities associated with the manufacture, assembly, processing, or storage of products or the performance of related services. The term includes, but is not limited to, such uses or activities as automobile manufacturing or repair, boat manufacturing or repair, junk yards, meat packing facilities, citrus processing and packing facilities, produce processing and packing facilities, electrical generating plants, water treatment plants, sewage treatment plants, and solid waste disposal sites.

    
    

31. Section 479.01(1) defines “Allowable uses” as follows:

    
    

    1. “Allowable uses” means the intended uses identified in a local government’s land development regulations which are authorized within a zoning category as a use by right, without the requirement to obtain a variance or waiver. The term includes conditional uses and those allowed by special exception if such uses are a present and actual use, but does not include uses that are accessory, ancillary, incidental to the allowable uses, or allowed only on a temporary basis.

       
       

32. Certain uses and activities, such as cell towers, “may not be independently recognized as commercial or industrial.”

    § 479.024(4)(h), Fla. Stat.

    
    

33. When the language of a statute is plain and unambiguous, there is no reason to resort to rules of statutory interpretation and construction, and the plain and unambiguous language of the statute controls. Levey v. Detzner, 146 So. 3d 1224, 1225 (Fla. 1st DCA 2014).

34. There is no distinction in the statute between public and private industrial uses.

35. In the present case, under the plain meaning of the opening paragraph of section 479.024, deference is accorded to a local government in its determination of whether a parcel where a sign is to be located is within a commercial or industrial zone (“in commercial or industrial zones, as determined by the local government”) § 479.024, Fla. Stat. Such determination is to be made by the local government based on the criteria and

    
    

    definitions set forth in the statute. The only exception is if the criteria in section 479.024(2) are not met.

36. As discussed above, the persuasive evidence establishes that the parcel is located within a commercial or industrial zone and that the criteria in sections 479.024(2)(a) through (c) have

been satisfied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting Wilton Manors’ applications for outdoor advertising sign permits (application numbers 58994 and 58995) and issue the requested outdoor advertising permits.

DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2016.

COPIES FURNISHED:

J. Stephen Menton, Esquire Rutledge Ecenia, P.A. Suite 202

119 South Monroe Street Tallahassee, Florida 32301 (eServed)

Susan Schwartz, Esquire Department of Transportation Haydon Burns Building

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399-0458 (eServed)

Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399-0450 (eServed)

Tom Thomas, General Counsel Department of Transportation Haydon Burns Building

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399-0450 (eServed)

James C. Boxold, Secretary Department of Transportation Haydon Burns Building

Mail Stop 57

605 Suwannee Street

Tallahassee, Florida 32399-0450 (eServed)

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: 15-001321

Orders for Case No: 15-001321