90-007304 Flamingo Lake Rv Resort, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, April 24, 1991.

Summary: Logo sign denied. Hearing Officer applied rule adopted just prior to hearing 1st DCA reversed because DOT relied on nonrule policy in its Final Order CourT award fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLAMINGO LAKE RV RESORT, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 90-7304T

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice

by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative

Hearings, on March 19, 1991, in Jacksonville, Florida.

APPEARANCES

For Petitioner: John S. Ball, Esquire

Michael W. Fisher, Esquire

Fisher, Tousey, Leas & Ball

2600 Independent Square

Jacksonville, Florida 32202

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

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

Whether the 1-295 and Lem Turner Road (SR 115) interchange is a "rural

interchange" under Rule 14.85.003(10), Florida Administrative Code.

Whether the Respondent has authority to establish a policy excluding logo

signing from interchanges on 1-295 in Duval County.

What is the impact on this case of the Respondent's amendment of Rule 14-

85.003(10)(b), Florida Administrative Code, which repeals the exception for

certain defined urban interchanges?

PRELIMINARY STATEMENT

The parties stipulate that on or about October 2, 1990, the Petitioner

filed a logo application with the Respondent (the "Department"), together with

the $25 application fee, to participate in the Department of Transportation logo

sign program (hereinafter the "logo program") Petitioner seeks in its

application to have a logo panel placed at the 1-295 and Lem Turner Road (SR

115) interchange. The Department denied Petitioner's application by letter

dated October 17, 1990 based upon its existing policy.

The Department's policy and the manner of its adoption, as outlined below,

appears inconsistent with statutory requirements and contrary to the existing

rules; however, the formal amendment of the rule to eliminate the exemption

alters the issues which must be considered. The laws and rules in effect at the

time of hearing control, and the issues related to the exemption and policies

surrounding its application are moot. Because this is a legal issue subject to

challenge, findings presented in the proposals related to these issues are made.

The Petitioner timely filed its petition for administrative hearing, and

the hearing under the administrative procedures act was held on March 19, 1991.

The transcript was filed on April 4, 1991. The Petitioner and the Respondent

submitted proposed findings of fact and conclusions of law, which were read and

considered. The Appendix attached hereto and incorporated by reference herein

states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. Petitioner, Flamingo Lake RV Resort, Inc., operates a camping facility

located in Duval County, Florida, located at the interchange of 1-295 and SR 115

or Lem Turner Road.

2. The Petitioner applied to the Department pursuant to Section 479.26,

Florida Statutes, and Chapter 14-85, Florida Administrative Code, to participate

in the logo program at the interchange.

3. The logo program is the means by which businesses, located within a

specified distance from an interstate highway exit, are permitted to display

their logo sign on information panels placed on the interstate highway near the

applicable exit. Such panels identify motorist services available at the exit

categorized by "Food," "Gas," "Lodging" or "Camping." The Petitioner applied to

place the logo of Flamingo Lake RV Resort on a "Camping" information panel.

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

115. The only signage at that interchange located on the interstate right-of-

way consists of a small generic sign displaying a picture of a camper underneath

the exit ramp sign. The small generic camper sign is not readily noticeable.

The generic sign neither identifies the particular campground which it

references, nor supplies directions to the campground.

5. Signage on a logo panel is important because it assists a traveler in

finding a particular campground and provides directions to the campground.

6. By letter dated October 17, 1990, the Department notified Petitioner

that its application was denied, because:

(a) The interchange on 1-295 is "excluded

from the program."

(b) The interchange does not fit the

definition of "rural interchange" in that it

is located in an urban area or is bordering

the urbanized area of Jacksonville, and the

number of eligible businesses at the

interchange exceeds the logo sign's panel

capacity.

7. Pursuant to unpublished policy, the Department has excluded all of 1-

295, the interstate beltway around Jacksonville, Florida, from participating in

the logo program.

8. The policy was adopted at some point in time in 1987, by the

Department's District Secretary. The policy was established because 1-295 is in

close proximity to the core city and anticipated that development would move in

that direction.

9. 1-295 is a circumferential route with crossroads that radiate into and

out of the City of Jacksonville. Exiting 1-295, you can head toward

Jacksonville and encounter an increasing number of services. There has been no

logo signing on 1-295 in Duval County, and other areas excluded from the logo

program in the District are U.S. 441 in Alachua County and 1-75, 39th Avenue

and 1-75 in Alachua County, State Road 26, 24, and 121 (at 1-75).

10. Areas surrounding the interchange, including Petitioner's property,

are classified as "rural areas" by the Census Bureau. The characteristics of

the interchange are marked by farming, pine forests containing abundant wild

life, and a large lake located on Petitioner's campground. Other than

Petitioner's campground facility, there is no commercial or significant

residential development located at or near the interchange, and the area is

designated open-rural for zoning purposes. Petitioner's property is not

serviced by city water or sewer lines. The interstate speed limit at the

interchange is 65 mph, and the speed limit along Lem Turner Road at the

interchange is 55 mph. Such speed limits are characteristic of a rural, rather

than an urban location.

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

aveling in a northerly direction along the Lem Turner (SR 115)

crossroad from the interchange, no commercial or residential development is

encountered until the traveler reaches Callahan, Florida, a distance in excess

of ten miles from the interchange.

aveling in a southerly direction along the Lem Turner (SR 115)

crossroad from the interchange, no commercial or significant residential

development is encountered until reaching the Lem Turner Road/Dunn Avenue

intersection, a distance of approximately one mile from the interchange.

13. Within 1.5 miles of the interchange, there are only two gas station

businesses potentially eligible to participate in the logo program. Both gas

stations are located at the Dunn Avenue/Lem Turner Road intersection, at a

distance of 1.2 miles from the interchange.

14. Within three miles of the interchange, the only business eligible for

the restaurant logo program is a McDonald's restaurant located on Lem Turner

Road just south of its intersection with Dunn Avenue. None of the other

restaurants located within a three mile distance of the interchange meet the

restaurant eligibility requirements due to limited seating capacity or the

limited hours of business. McDonald's desires to participate in the logo program

at the interchange.

15. Other than Petitioner's campground, there are no other campgrounds

located within three miles in either discretion along the Lem Turner crossroad

from the interchange.

16. There are no lodging facilities located within three miles of the

interchange. Lodging facilities are located at the Dunn Avenue/I-95

intersection, a distance over three miles but less than six miles of the 1-295

and SR 155 interchange. To reach these facilities, however, the northbound

traveler must drive south on Lem Turner Road for approximately 1 mile, then turn

east on Dunn Avenue and travel approximately three miles to reach the

interchange of 1-95 and Dunn Avenue. For persons traveling south, the more

direct route to the I- 95/Dunn Avenue interchange is to continue south on 1-95

approximately one mile rather than to turn onto 1-295.

17. The District Logo Coordinator did a survey of the volume of business

in each category and determined that the panel capacity for two of the types of

mother board would be exceeded within the six-mile distance. In reaching this

conclusion, the Department considered businesses within six miles because the

Department did not feel that there were enough qualifying businesses within

three miles. However, within six miles, the Department determined there would

be so many qualifying businesses that the logo mother board would be exceeded

and when the logo mother board capacity is exceeded, all logo panels must come

down. Therefore, the Department denied all logo panels.

18. There were qualifying or qualifiable gas station(s), restaurant(s),

and campground(s) accessible from the intersection. Of the three logo

categories, only lodging lacked a qualifier within three miles. Only when the

radius of inquiry extended to six miles and left Lem Turner Road to go to the

Dunn Avenue/I-95 interchange was a lodging qualifier found. At this point, the

Department determined that there were too many lodgings and precluded all logo

signs in all categories.

19. Respondent's Exhibit 1 is a map of the urbanized area in the vicinity

of Jacksonville, Florida. This designation of urbanized area by the Department

was approved by the Federal Highway Administration. This exhibit reveals that

the 1-295/SR 115 interchange is located in the urbanized area.

20. On November 30, 1990, the Department published notice in the Florida

Administrative Weekly announcing a proposed change to Chapter 14-85 of the

Florida Administrative Code. Notice of the proposed rule change was not given

to Petitioner individually; however, individual notice was not required.

21. The amendments to Chapter 14-85 became effective March 20, 1990. This

administrative hearing was held on March 19, 1991.

22. The effect of the amendments to the rules under Chapter 14-85 removes

the exception to the "Rural Interchange" definition found in Rule 14-

85.003(10)(b), and would deny Petitioner the right to erect a logo sign at the

interchange if the interchange is found to be located within an urban or

urbanized area. The amendment would make any interchange located within an

urban or urbanized area ineligible to participate in the logo program,

regardless of whether the number of eligible businesses at the interchange

exceed the logo sign's capacity.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the

parties to, and subject matter of, this proceeding. Section 120.57(1), Florida

Statutes. The Petitioner is substantially affected by the action taken by the

Department and therefore has standing to challenge the Department's actions in

denying its application to participate in the logo program at the interchange.

24. The Department has been directed by the legislature to implement a

"specific information panel program" in the rights-of-way of the interstate

system, "to present information in the specific interest of the travelling

public and to promote tourist-oriented businesses." Section 479.26(1), Florida

Statutes. The Department has promulgated rules, found at Chapter 14-85, Florida

Administrative Code, to implement the logo program under this legislative

directive. The Department has authority to regulate the logo program pursuant

to the statutes and rules.

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

(1) Logo signs and logo panels may be

erected at any rural interchange along

interstate and limited access federal aid

primary highways. Logo signs and panels

erected at an interchange which no longer

meets the criteria for a rural interchange

shall be removed upon the expiration of all

permits issued for that interchange.

(2) All distances from an interchange

specified in this rule chapter shall be

measured from the point on the interchange

crossroad which is coincident with the

centerline of the Interstate of Federal-aid

Primary highway median, along the interchange

crossroad to the respective motorist service.

26. Section 14.85.003, Florida Administrative Code, prior to March 20,

1991, provided in part:

(10) "Rural interchange" means:

(a) An interchange outside the limits of any

urban or urbanized area as defined in Section

334.03, Florida Statutes, where either the

right-of-way of an interstate or federal aid

primary highway or the right-of-way of an

intersection roadway constitutes the boundary

of an urban or urbanized area, the

interchange shall be considered urban; or

(b) An interchange within an urban or

urbanized area as defined in Section 334.03,

Florida Statutes, at which the number of

eligible business does not exceed the limits

established in Rule 14-85.005(1) for more

than one of the types of logo signs.

27. Under the rule above, the Petitioner would have qualified under the

exception created by subparagraph (6).

28. However, paragraph (b) above was deleted by amendment of this rule

effective March 20, 1991. Because this is a de novo proceeding, this rule, as

amended, must be applied; and Petitioner's application for logo certification on

the urban interchange should be denied. Szkolny v. State Awards Committee, 395

So.2d 1293, 1294 (Fla. 1st DCA 1981), citing McDonald v. Department of Banking &

Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

29. With the deletion of the urban exception for logo signing, issuance of

any logo certification is limited to interchanges located outside the limits of

any urban or urbanized area as defined by Section 334.03, Florida Statutes.

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

(27) "Urban area." --A geographical region

comprising as a minimum the United States

Bureau of Census boundary of an urban place

with a population of 5,000 or more persons,

expanded to include adjacent areas as

provided for by Federal Highway

Administration regulations.

31. Respondent's Exhibit 1 shows the boundary of the urban area, as

established by the Department and the Federal Highway Administration. The

interchange of SR 115 and 1-295 are within the urban boundary area as designated

by the Department and accepted by the Federal Highway Administration.

Therefore, under Rule 14-85.003, Florida Administrative Code, as amended, the

interchange is not a rural interchange and the logo program is not applicable.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner's application for eligibility in the logo program for a

location at Exit 13 on Interstate 295 be denied because said location does not

qualify as a rural interchange under the current rule

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

___________________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

File with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 1991.

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

Petitioner's Proposed Findings of Fact

1-4. Adopted.

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

rejected was irrelevant.

7. Adopted.

8. Adopted and divided into paragraphs 7 and 8.

9-10. Adopted and restructured.

11-12. Adopted.

13-14. Conclusion of law.

15-21. Adopted.

Respondent's Proposed Findings of Fact

1-3. Adopted.

COPIES FURNISHED:

John S. Ball, Esq.

Michael W. Fisher, Esq.

Fisher, Trousey, Leas & Ball

2600 Independent Square

Jacksonville, FL 32202

Vernon L. Whittier, Jr., Esq.

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, Esq.

General Counsel

Department of Transportation

562 Haydon Burns Building

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

DOAH CASE NO. 90-7304T

Appellant,

vs.

DEPARTMENT OF TRANSPORTATION,

Appellee.

_______________________________/

Opinion filed June 2, 1992.

An Appeal from an order of the Department of Transportation.

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

for Appellant.

Thornton J. Williams, General Counsel, and Thomas F. Capshew, Assistant General

Counsel, Department of Transportation, for Appellee.

ON REHEARING

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

ERVIN, J.

Appellee's motion for rehearing is granted. Our opinion filed April 8,

1992 is withdrawn, and the following opinion is substituted therefor.

EXHIBIT A

Appellant, Flamingo Lake RV Resort, Inc. ("Flamingo Lake"), operates a

camping facility in Duval County at the interchange of I-295 and State Road 115

(Lem Turner Road). Flamingo Lake applied to the Department of Transportation

(the department), pursuant to Section 479.26, Florida Statutes (Supp. 1990), and

Florida Administrative Code Chapter 14-85, to participate in the logo sign

program at the interchange. The department denied the application. After an

administrative hearing, the hearing officer recommended denial of the

application, and the department issued a final order denying the application.

We reverse and remand.

The hearing officer concluded that Flamingo Lake qualified for the program

under former rule 14-85.003(10), but that the rule was amended and replaced by

rule 14-85.003(15), which eliminated Flamingo Lake's eligibility as a "rural

interchange" for the logo sign program, on March 20, 1991, the day following the

hearing at bar. In its final order, the department adopted the hearing

officer's findings of fact and conclusions of law, but indicated that the

amended rule did not apply retroactively to Flamingo Lake's application. Sexton

Cove Estates, Inc. v. Pollution Control Bd., 325 So.2d 468, 470 (Fla. 1st DCA

1976); Gulf Stream Park Racing Ass'n. Inc. v. Division of Pari-Mutuel Wacierin.

Dep't of Business Req., 407 So.2d 263, 265 (Fla. 3d DCA 1981). Nevertheless,

the department relied upon an incipient nonrule policy that prohibits logo sign

panels from being erected at any interchange on I-295.

Section 479.26(2)(a) authorizes the department to determine "not to permit

specific information panels in areas where the department deems their placement

would be contrary to the overall (Emphasis added.) The department presented no

evidence that placing sign panels at interchanges along I-295 would be contrary

to the legislative intent contained in Section 479.015, Florida Statutes (1989).

Moreover, we know of no authority that would legitimize an agency's adoption of

a nonrule policy which takes away that which a properly promulgated rule

explicitly provides.

Accordingly, we REVERSE the final order and REMAND this case with

directions to the department to grant Flamingo Lake's application to participate

in the logo sign program. 1/

BOOTH and ZEHMER, JJ., CONCUR.

ENDNOTE

1/ In so holding, we note that Section 479.26(3), Florida Statutes (Supp.

1990), provides that the department may adopt a procedure permitting a private

business to "pay the initial cost for the erection of information panels."