Findings Of Fact The Petitioner, Carter Signs is in the business of outdoor advertising which includes the installation, repair and maintenance of signs, billboards, or displays on real property. Pursuant to a twenty-year term lease that began on March 1, 1988, the Petitioner has leased the real property described as: Strap No. 344525-00- 00002.000 lying east of 1-75, in Lee County, Florida. The lease describes the specific intended use of the real property under the lease. The lessee has agreed to use and occupy the premises solely for the purpose of outdoor advertising. The real property is located in Lee County, Florida, within 660 feet of Interstate Highway 75, a highway in the interstate highway system. The property is approximately 1.5 miles south of the Daniel Road interchange on the east side of the highway. The Lee County Comprehensive Plan, which has been enacted by the county, designates the area in which real property is located as "Airport Commerce." Under the plan, this land is approved for "mixed use developments consisting of light manufacturing or assembly, warehousing and distribution facilities; offices; ground transportation and airport related interconnection activity; and hotels/motels, meeting facilities and other hospitality services." The Petitioner's application to Lee County for a permit to erect the proposed sign on the property was approved. The county permit shows that the property is zoned "agricultural." If the "agricultural" zoning classification is violated, the county permit becomes void. The application for permit to the Department was denied because Section 479.111(2), Florida Statutes, allows signs within a controlled portion of an interstate highway only if the sign is within a commercial-zoned area, an industrial-zoned area, a commercial-unzoned area or industrial-unzoned area. In this case, the proposed sign was to be placed in an agriculturally zoned area.
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.
Recommendation It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. COPIES FURNISHED: Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58 Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Frank J. Seiz 4811 Palmetto Point Road Palmetto, FL 34221-9721 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether the outdoor advertising structure of the Petitioner, Florida Outdoor, Inc., is in violation of Section 479.13 and 479.05 of the Florida Statutes.
Findings Of Fact The Petitioner, Florida Outdoor, Inc., is the owner of two signs located on U.S. Highway 41, six miles east of SR 839A. One has a copy of "Wootens Airboat Tours" and the second sign which is also located on U.S. Highway 41, fifty feet (50') east from Bridge No. 95 has a copy of "Shell Factory." The real property upon which these structures are located was formerly owned by the Collier Company of Naples, Florida, who by letter dated November 17, 1976, notified the Petitioner that it expected to conclude negotiations for sale of its property leased by Petitioner sign company on November 1976 and therefore would not renew any sign space leases beyond their expiration date of December 31, 1976. The leases were not renewed and the structures stand upon the property without authorization from the present owner of the property, the State of Florida, which has leased it to the National Park Service. By letter dated April 14, 1977, the National Park Service, requested the Respondent DOT which has the responsibility to administer and enforce the outdoor advertising law, Chapter 479, F.S., to remove subject signs. As a reason for the request, it cited: Title 23 CRF - Highways, Part 131(h) states that "All public lands or reservations of the United States which are adjacent to any portion of . . . the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary," and Part 138 Preservation of parklands states: "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands."
Recommendation Remove the Petitioner's signs. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32790 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Did the Department of Transportation properly issue Notice of Violation No. 10B LJM 1997 197 to Respondent pursuant to Chapter 479, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Deron's owns the property located at 4212 Hammond Drive (State Road 542) which is on the east side of Hammond Drive. Deron's business establishment is located at 4212 Hammond Drive. Deron's primary business activities such as screen printing, embroidery, and sales are conducted at 4212 Hammond Drive. Eastwood Self-Storage (Eastwood) is located at 4207 Hammond Drive, which is on the west side of Hammond Drive. Eastwood is in the business of leasing storage spaces to the public for self-storage. Deron's currently leases three self-storage spaces from Eastwood where Deron's primarily stores its excess inventory and supplies. Deron's does not have a business office located at 4207 Hammond Drive and does not conduct any of its business activities such as screen printing, embroidery, and sales at the self-storage units located at 4207 Hammond Drive. The sign subject to this proceeding (sign) is located at 4207 Hammond Drive on property owned by Eastwood. Deron's paid Eastwood to erect the subject sign which sits on top of an on-premise sign owned by Eastwood. Deron's does not pay any rent for the use of the sign to Eastwood or anyone else. The sign advertises Deron's business and the business activities performed by Deron's at its establishment located at 4212 Hammond Drive. Hammond Drive separates the property owned by Eastwood where the sign is located (4207 Hammond Drive) from the property owned by Deron's at 4212 Hammond Drive upon which Deron's business establishment is located. The sign is located within 660 feet of, and is visible to, State Road 542, a jurisdictional highway for purposes of enforcing outdoor advertising. Because of the location of the subject sign (within a 1000 feet of another permitted sign on the same side of Hammond Drive), it does not meet the permitting requirements of Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the subject sign to be in violation of Chapter 479, Florida Statutes; and it is further recommended that Deron's be required to remove the sign from its location. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st of December, 1998. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John G. Wood, Jr., Esquire 3601 Cypress Gardens Road Suite A Winter Haven, Florida 33884
The Issue The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location. The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.
Findings Of Fact Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked. DONE AND ENTERED this 11th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street Pensacola, Florida 32503 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
The Issue Whether the sign of Petitioner is in violation of Chapter 479, Florida Statutes, and the outdoor advertising rules promulgated thereunder for having no permit from the Respondent and for being erected in a nonconforming area.
Findings Of Fact Sometime prior to September 6, 1977, in the year 1977, Petitioner erected three outdoor advertising signs less than 30 feet from the nearest edge of the right-of-way of Interstate-10 in rural areas advertising pecans at a Shell station or restaurant at the next exit. One sign was located 03.53 miles East of State Road 53. One was erected 09.98 miles West of State Road 14 and one was located 05.17 miles West of State Road 14. The Respondent, Department of Transportation, served a violation notice on Petitioner dated September 6, 1977, alleging that Petitioner's signs were in violation of Section 479.07(1) and Rule 14-10.04(1), inasmuch as no application had been made or permit granted for the erection of the signs. The violation notice also alleged that the Petitioner was in violation of Section 479.11(1) and (2), Florida Statutes, and Rule 14-10.05(1)(a) and (b), as being in a nonconforming area. Petitioner requested an administrative hearing stipulating as to the location of the signs in the rural areas along Interstate Highway 10. Petitioner contends: that the subject signs are within the exception of Section 479.16(2) and are excepted from all of the provisions of Chapter 479, Florida Statutes. Respondent contends: that the Petitioner is in fact an outdoor advertiser and does not own or lease the farms themselves and therefore does not come within the exception provided for farmers to market the produce of their farms. Mr. J. B. Davis, the President of J. B. Davis, Inc., operates travel shops and is a Shell Oil Jobber. He operates travel shops on Interstate-75 and Interstate-10 and sells various produce at these shops including pecans and other products at the Shell station. He has an agreement with three property owners along Interstate-10 to buy their pecans. The agreements extend to allowing the Petitioner to buy the pecans at the prevailing market price in Madison, Florida; the right to cultivate the trees themselves and right of access over the owner's property. Two of the agreements have been reduced to writing and were introduced into evidence. The sign erected by the Petitioner along Interstate-10 approximately 4 miles from State Road 53 was fallen down in disrepair at the date of the hearing. The sign advertised "This Exit Pecans Shell Station". It was erected on property owned by Mr. Jerry Wood and is in an open field Petitioner buys pecans from Mr. Wood. The sign located approximately 10 miles from State Road 14 is on property located by Mrs. Mattie Cruce. The sign advertises "This Exit Pecans at Shell Restaurant". It is erected in a field with scrub trees growing toward the back. Petitioner buys pecans from Mrs. Cruce to sell at the Shell station. The third sign erected by Petitioner is on property owned by Mr. John Cone. The sign is approximately 5 miles from State Road 14 along Interstate-10. It advertises "Pecans, 5 Miles at Shell Restaurant". Petitioner buys pecans from Mr. Cone. The two lease agreements with the owners of the property on two of the signs was drawn up in the week immediately prior to the date of this hearing on the violation notices. Previously there was an oral agreement with all three owners of the property that the Petitioner would buy the pecans from the owners to sell at the Shell station operated by the Petitioner.
Recommendation Remove the signs of Petitioner. DONE and ENTERED this 29 day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Browning & Hardee Post Office Drawer 652 Madison, Florida 32340 Philip S. Bennett, Esquire Department of Transportation The Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue at the hearing was whether proposed sign locations located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Iterstate 10 should be permitted. 1/
Findings Of Fact Petitioner applied to Respondent for permits on two proposed sign locations in Holmes County, Florida. The locations were 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. Both locations are in areas which are zoned commercial and otherwise meet the Department's requirements for spacing, etc. The area in question was zoned commercial in 1988 when the County adopted Ordinance Number 88-02 as a comprehensive zoning plan. The relevant commercial area parallels Interstate 10, Highway 90 and State Road 79 in which many commercial activities are presently located. The portions paralleling Interstate 10 West of State Road 79 are located on the North side of I-10 and run west, terminating at County Road 173. The portions paralleling I-10 East of State Road 79 are located on the North and South sides of I-10 and run east for over two miles. While some may disagree that the areas designated for commercial or industrial use will develop those uses in the future, it is clear that commercial or industrial development is a reasonable use of this land for comprehensive zoning purposes and neither the physical dimensions nor configurations of the area prevent or prohibit such use. Prior to the enactment of Ordinance 88-02, Holmes County held several public hearings and worked with a company which is an expert in land use planning in developing this ordinance. The ordinance considers all reasonable land uses and encompasses all unincorporated areas of the County. The ordinance is consistent with the County's comprehensive plan and with the purposes of the ordinance stated therein. The Ordinance does not permit lesser uses of the commercial or industrial areas. Commercial or industrial use is the only use allowed in the commercial and industrial areas. Neither variance or special exceptions are required for a commercial or industrial use of those areas. The ordinance is clearly comprehensive zoning and was not adopted by the County for the primary purpose to permit signs. Numerous other signs within this same area have been permitted by DOT since the adoption of Ordinance 88-02.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order permitting signs located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.
Findings Of Fact Based upon the testimony adduced at the hearing, the documentary evidence received, and the entire record compiled herein, and after consideration of the parties' memoranda, the following relevant facts are found. 1/ At the commencement of the hearing, the parties stipulated that the Respondent is the owner of three outdoor advertising signs located in the City of Jacksonville, Florida; that I-95 is part of the Interstate highway system; that the signs are located within the prohibited distances sat forth in Chapter 479.11, Florida Statutes, and that the signs are constructed to be seen from the main-traveled way of the interstate highway. It appears that the poles and stringers were erected some weeks prior to the December 8, 1971 moratorium for sign construction adjacent to certain roadways, and that a face was added to the signs during the Spring of 1972. The signs are located approximately 3.07 miles North of Pecan Park Road; 2.29 miles North of Pecan Park Road; and 1.02 miles North of Pecan Park Road, adjacent to Interstate Highway 95. (By stipulation of the parties, and testimony of Jack L. Foster, outdoor inspector for Petitioner.) Inspector Foster, as part of his official duties, inspected and first became aware of the poles for the signs in question within a few weeks following the December 8, 1971 moratorium. At that time, at least one of the signs had only three poles erected, and the remaining two had the required six poles in place. Periodic visits to the bite of the stringers by Inspector Foster revealed that on July 13, 1972, two advertising faces had been placed on the signs located at 1.02 and 3.07 miles North of Pecan Park Road. A subsequent visit during the following week, i.e., on July 18, 1972, revealed that the remaining advertising display had been placed on the remaining sign. Based on Inspector Foster's examination of the zoning and building requirements for the City of Jacksonville, he observed that the subject signs could not be permitted because they failed to satisfy the city's zoning requirements. (Petitioner's Exhibits A, B, C, and D which were received into evidence over objection of Respondent's counsel.) At the conclusion of Petitioner's case, Respondent, through its counsel, moved for a dismissal on the ground that the Division of Administrative Hearings lacked jurisdiction over such matters inasmuch as the Division lacked authority, pursuant to Chapter 479.24(2), Florida Statutes, to order removal of the signs in question from real property under Florida's eminent domain law. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Petitioner enter a final order authorizing it to remove the signs in question. Upon removal of the signs, it is further RECOMMENDED that Petitioner remit to Respondent, compensation to the extent of the materials used for construction of the signs in keeping with the State's eminent domain Procedures set forth in Chapters 73 and 74, Florida Statutes. RECOMMENDED this 25th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1981.
