03-003682RP Florida Outdoor Advertising Association, Inc.; Clear Channel Outdoor, Inc.; Koala Outdoor; The Lamar Company, L.L.C.; And Viacom Outdoor, Inc., D/B/A National Advertising Company vs. Department Of Transportation Status: Closed DOAH Final Order on Monday, February 16, 2004.

Summary: Respondent`s proposed rule regarding outdoor advertising does not constitute an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA OUTDOOR ADVERTISING )

ASSOCIATION, INC.; CLEAR )

CHANNEL OUTDOOR, INC.; KOALA )

OUTDOOR; THE LAMAR COMPANY, )

L.L.C.; AND VIACOM OUTDOOR, )

INC., d/b/a NATIONAL )

ADVERTISING COMPANY, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3682RP

)

DEPARTMENT OF TRANSPORTATION, )

)

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this

case on November 21, 2003, in Tallahassee, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioners: Gerald S. Livingston, Esquire

Livingston & Riley, P.A.

Post Office Box 2151

Orlando, Florida 32802

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF TH E ISSUE

Whether proposed Rule 14 - 10.0052 is an invalid exercise

of delegated legislative authority pursuant to Section

120.52(8), Florida Statutes, 1/ for the reasons described by

Petitioners in their Petition.

PRELIMINARY STATEMENT

Petitioners, Florida O utdoor Advertising Association,

Inc.; Clear Channel Outdoor, Inc.; Koala Outdoor; The Lamar

Company, L.L.C.; and Viacom Outdoor, Inc., d/b/a National

Advertising Company filed a Petition challenging proposed Rule

14 - 10.0052 with the Division of Administrat ive Hearings on

October 9, 2003, and it was assigned to the undersigned on

October 13, 2003.

A Notice of Hearing was issued on October 16, 2003,

scheduling a formal hearing for November 12, 2003. On

October 21, 2003, Petitioners filed a Motion for Leav e to File

Amended Petition. The motion was granted and the case

proceeded on Petitioners' Amended Petition. Also on October

21, 2003, Petitioners filed an unopposed Motion for

Continuance of Final Administrative Hearing. The motion was

granted and the h earing was rescheduled for November 21, 2003.

The parties filed a Joint Pre - Hearing Stipulation on November

19, 2003.

At hearing, Petitioners presented the testimony of Thomas

G. Pelham, Joseph Howard Little, Richard V. Geeslin, and

Katherine Oertel. P etitioners' Exhibits numbered 1 and 2 were

admitted into evidence.

Respondent presented the testimony of John Garner.

Respondent's Exhibits numbered 1 through 7 were admitted into

evidence. The parties offered Joint Exhibit 1 which was

admitted into evi dence. Official recognition was taken of 23

U.S.C. s. 131, 23 C.F.R. Subpart G, §§ 750.701 - 750.713,

Chapter 479, Florida Statutes, an agreement dated January 27,

1972, between the United States Department of Transportation

and the State of Florida, an d Rule 9J - 5.003, Florida

Administrative Code.

A Transcript consisting of one volume was filed on

December 15, 2003. On December 30, 2003, Petitioners filed an

Unopposed Motion for Extension of Time to file Petitioners'

Proposed Final Order. The motion wa s granted and the parties

timely filed Proposed Final Orders which have been considered

in the preparation of this Final Order.

FINDINGS OF FACT

Stipulated Facts

1. The proposed rule was the subject matter of a rule

development workshop on May 20, 2002 , at 10:00 a.m. at the

Haydon Burns Building, 605 Suwannee Street, Tallahassee,

Florida.

2. The proposed rule was the subject matter of a public

hearing on December 18, 2002, at the same location.

3. The proposed rule was the subject matter of anothe r

public hearing held on April 3, 2003, at the same location.

4. The proposed rule was the subject matter of a

publication under Section III of the Florida Administrative

Weekly on September 19, 2003, wherein the rule was published

in its final propos ed form.

5. Petitioner Florida Outdoor Advertising Association is

a trade association comprised of billboard companies operating

within the State of Florida who (i) are engaged in the

"business of outdoor advertising" as that term is defined in

Chapter 4 79, Florida Statutes; (ii) are licensed as outdoor

advertising companies pursuant to the provisions of Chapter

479, Florida Statutes; (iii) are directly regulated by the

provisions of Chapter 14 - 10, Florida Administrative Code; and

(iv) are companies whose substantial interests will be

affected by the proposed rule.

6. Petitioners Clear Channel Outdoor, Inc.; Koala

Outdoor; The Lamar Company, L.L.C.; and Viacom Outdoor, Inc.,

d/b/a National Advertising Company are billboard companies who

(i) are engaged in the "business of outdoor advertising" as

that term is defined in Chapter 479, Florida Statutes; (ii)

are licensed pursuant to the provisions of Chapter 479,

Florida Statutes; (iii) are directly regulated by Chapter 14 -

10, Florida Administrative Code; a nd (iv) are parties whose

substantial interests will be affected by the proposed rule.

7. The State of Florida, Department of Transportation

(hereinafter "the Department"), is the state agency

responsible for adopting the proposed rule.

8. Petitioners are all qualified to do business within

the State of Florida, are Florida taxpayers, and have

participated in the entire rule adoption process, as set forth

above, either directly or by and through their authorized

representatives, agents, or attorneys.

9 . The Petition filed on behalf of Petitioners was

timely filed pursuant to the provisions of Section

120.56(2)(a), Florida Statutes.

10. The text of the proposed rule as published in its

final form in the Florida Administrative Weekly on September

19, 2003, is as follows:

14 - 10.0052 Comprehensively Enacted Zoning

and Zoning Enacted Primarily to Permit

Signs.

(1) 'Comprehensively Enacted Zoning' means

ordinances or other laws adopted by the

county or municipal government with

authority over the develop ment and use of a

parcel of land, pertaining to and

designating the currently allowable uses on

the parcel, pursuant to and consistent with

a comprehensive plan enacted in accordance

with Chapter 163, Florida Statutes. The

term does not include actions ta ken

primarily to permit signs as defined in

section (3) of this rule.

(2) For the purposes of this rule,

'parcel' shall mean all the contiguous

lands under the same ownership and the same

land use designation adopted pursuant to

Chapter 163, Florida Stat utes.

(3) The Department shall consider the

following criteria when determining whether

commercial or industrial zoning applicable

to a parcel of land was adopted primarily

to permit the erection or maintenance of

signs:

(a) Whether the uses allowed b y the

applicable zoning ordinance or law include

commercial or industrial uses in addition

to signs. The following uses are not

recognized as commercial or industrial use

for the purpose of these criteria:

1. Agricultural, forestry, ranching,

grazing, farming, or related activities,

including wayside fresh produce stands.

ansient or temporary activities.

3. Railroad tracks and minor sidings.

4. Communication towers.

5. Electric transmission, telephone,

telegraph, or other communication s services

lines.

6. Ditches, sewers, water, heat, or gas

lines.

7. Pipelines, tanks, or pumps.

8. Fences.

9. Drainage ponds or water retention

facilities.

10. Canals.

11. Roads.

12. Signs.

(b) Whether the size of the parcel would

be sufficient to conduct the commercial or

industrial uses allowed on the parcel under

the applicable county or municipal

government building and development code

requirements for commercial or industrial

activities, including setback requirements,

parcel si ze and dimension requirements, and

parking requirements.

(c) Whether the parcel is located

contiguous to other properties zoned or

used for commercial or industrial

activities.

(d) Whether there is public access to the

parcel sufficient to conduct the commercial

or industrial uses allowed on the parcel.

(e) Whether the public statements and

materials published in connection with any

zoning decision affecting the parcel,

including all public records pertaining to

the zoning decision, indicate the zonin g

decision was taken primarily to permit the

erection or maintenance of signs.

Specific authority 334.044(2), 479.07(10)

FS. History - New.

Facts Based Upon the Evidence of Record

History of the Rule

11. The Department is the state agency responsib le for

administering state and federal law governing the placement of

outdoor advertising signs along the highways of the state.

DOT is charged with enforcing Chapter 479, Florida Statutes,

in concert with federal law and regulations, as well as an

agreem ent between the State of Florida and the United States

Department of Transportation referenced more specifically

below.

12. On January 27, 1972, the State of Florida and the

United States Department of Transportation entered into an

agreement (the agreeme nt) for carrying out the federal law

known as the Highway Beautification Act of 1965 (the Act).

13. The Act, which is codified at 23 U.S.C. section 131,

requires states to achieve and exercise effective control of

outdoor advertising in areas adjacent t o the Interstate

highways and the federal - aid primary highway systems. The

predominant focus of the Act is that signs located within a

certain distance of Interstate and federal - aid highways should

be located in areas that are commercial or industrial in

nature. Failure to maintain such effective control may result

in an annual penalty of ten percent of the federal highway

funds apportioned to the state.

14. There was a major rewrite of Florida law relating to

outdoor advertising in 1984 in an effort to come under

compliance with the agreement as well as with federal law and

regulations.

15. As part of that legislative undertaking, the

language of Subsection (10) of Section 479.07(10) was enacted.

Section 7, Chapter 84 - 227, Laws of Florida. The languag e of

that subsection, which is referenced in the publication of the

proposed rule as the law implemented, has not changed since

its enactment in 1984. The last sentence of the subsection

requires the Department to adopt rules within 180 days after

the eff ective date of act, "which shall provide criteria to

determine whether such zoning is comprehensively enacted or

enacted primarily to permit signs."

16. In response to this Legislative mandate, the

Department adopted Florida Administrative Code Rule 14 - 10 .0051

in 1986. That rule was entitled, "Zoned and Unzoned

Commercial and Industrial Areas along Interstate and Federal -

Aid Primary Highways."

17. Florida Administrative Code Rule 14 - 10.0051 was the

last effective rule on the subject matter of the propo sed rule

until its repeal in approximately 2000. The Department

describes the repeal of the rule as "inadvertent."

18. John Garner is the manager of production and program

operations for the Office of Right - of - Way for the Department.

His duties inclu de policy - level involvement regarding outdoor

advertising. According to Mr. Garner, the Department chose

not to simply re - adopt its previous rule on the subject

because it believed the old language was somewhat vague and

should be more specific. The Depa rtment began working on the

proposed rule which is the subject matter of this dispute in

late 2000 or in 2001. Mr. Garner attended numerous meetings

wherein the text of the rule was discussed and participated at

one of public hearings on the proposed rule .

19. Through the rule development process, the initial

proposed language was significantly modified to address

comments and concerns raised by Petitioners and others.

During the process of developing the proposed rule, the

Department considered a number of matters, including the

comments received during the rule workshops, guidance and

comment it has received over time from the Federal Highway

Administration concerning federal regulations, information

received from the Department of Community Affairs, an d an

examination of approaches taken by other states in addressing

similar matters.

Other statutory considerations

Chapter 163

20. A year after the enactment of Section 479.07(10),

the 1985 Florida Legislature enacted the Local Government

Comprehensive P lanning and Land Development Regulation Act.

This legislation substantially revised and expanded Part II of

Chapter 163, Florida Statutes (1985), regarding growth

management.

21. That legislation mandated a comprehensive planning

process requiring each local government in the state to plan

comprehensively for growth and development. Each local

government is required to prepare a comprehensive plan which

will govern land use in the jurisdiction. A part of that

comprehensive plan is a future land use ma p which designates

all property within a jurisdiction for a use consistent with

future land use categories that are provided for in the

comprehensive plan, e.g., commercial or residential. The

future land use map must be consistent with the other parts of

the comprehensive plan.

22. After a comprehensive plan has been adopted for a

jurisdiction, the local government must implement that plan

through the adoption of land development regulations,

including zoning. Any such regulations must be consistent

wit h the comprehensive land use plan so that there is a

comprehensive system of planning, regulation, and zoning.

23. It is common practice in this state to include

within the implementing regulations a comprehensive zoning

ordinance which is then applied to all of the property within

the jurisdiction resulting in a zoning map showing zoning

districts. A zoning ordinance would list currently

permissible uses in the zoning districts.

24. Comprehensive plans are subject to amendment not

more than twice a ye ar. Zoning regulations may also be

modified or amended by local governments, but must remain

consistent with the comprehensive plan.

25. There are a few jurisdictions in Florida which have

land development regulations but do not have zoning ordinances

in place.

26. The Department deems land use control actions taken

pursuant to Chapter 163, Florida Statutes, to be zoning that

is comprehensively enacted for the purposes of Chapter 479,

Florida Statutes.

Sign Permits

27. Section 479.07, Florida Statut es, generally requires

the issuance of a sign permit by the Department before the

erection of signs along state highways, the federal aid

primary system, and the Interstate highway system. This

section also authorizes the Department to prescribe an

applic ation form for such permits.

28. The application form for an outdoor advertising

permit contains information about what is proposed to be

constructed and where an applicant proposes that it be

constructed.

29. The application also contains a section t hat reads,

"To be completed by appropriate zoning official." This

section contains information on the future land use

designation and current zoning of the proposed location under

the local government's comprehensive plan and land development

regulations. The form also contains a section entitled,

"Local Governmental Permission" in which a local government

official indicates whether or not the outdoor advertising sign

identified in the application is or is not in compliance with

all duly adopted local ord inances.

30. Once the local government zoning official certifies

that the proposed sign identified in the application is in

compliance with the comprehensive plan adopted pursuant to

Chapter 163, the Department does not go behind that

certification to loo k factually at whether the zoning action

was consistent with the comprehensive plan.

31. The Department uses the application and the

information contained therein to determine whether a proposed

sign location falls within the definition of a "commercial o r

industrial zone." If it does, then the Department determines

whether those designations were adopted as part of the local

government's comprehensive planning effort or were primarily

adopted to permit outdoor advertising signs on that location.

The Dep artment examines the intent surrounding a particular

zoning decision on a case - by - case basis.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursua nt to Section 120.56(1) and (2), Florida

Statutes.

33. Petitioners have standing to challenge the proposed

rule which is the subject of this dispute.

34. The Department is the state agency responsible for

administering state and federal law governing t he placement of

outdoor advertising signs along the highways of the state.

Ch. 479, Fla. Stat.

Rule Challenge Analysis

35. In a challenge to a proposed rule, the party

attacking the proposed rule has the burden of going forward.

The agency then has the burden to prove by a preponderance of

the evidence that the proposed rule is not an invalid exercise

of delegated legislative authority as to the objections

raised. The proposed rule is not presumed to be valid or

invalid. § 120.56(2)(a) and (c), Fl a. Stat.

36. The Amended Petition challenging proposed Rule 14 -

10.0052 alleges that the proposed rule constitutes an invalid

exercise of delegated authority. Petitioners assert that the

proposed rule violates subsections (b), (c), (d), and (e) of

Secti on 120.52(8) in that it exceeds the Department's

rulemaking authority; enlarges, modifies, or contravenes the

specific provisions of law implemented; is vague, fails to

establish adequate standards for agency decisions, or vests

unbridled discretion in the agency; and is arbitrary. 2/

37. Section 120.52(8), Florida Statutes, reads in

pertinent part as follows:

(8) 'Invalid exercise of delegated

legislative authority' means action which

goes beyond the powers, functions, and

duties delegated by the Legisl ature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational . . . .

Secti on 120.52(8)(b) and (c)

38. "The authority to adopt an administrative rule must

be based on an explicit power or duty identified in the

enabling statute . . . [T]he authority for an administrative

rule is not a matter of degree. The question is whether the

statute contains a specific grant of legislative authority for

the rule, not whether the grant of authority is specific

enough ." (Emphasis in original) Florida Board of Medicine v.

Fla. Academy of Cosmetic Surgery , 808 So. 2d 243, 253, quoting

Southw est Florida Water Management District v. Save the

Manatee Club, Inc. , 773 So. 2d 594, 599 (Fla. 1st DCA 2000).

39. In this instance, the Department's grant of

rulemaking authority is found in Section 479.07(10), Florida

Statutes, which reads as follows :

479.07 Sign permits. --

(10) Commercially or industrial zoning

which is not comprehensively enacted or

which is enacted primarily to permit signs

shall not be recognized as commercial or

industrial zoning for purposes of this

provision, and permits shall be issued for

signs in such areas. The department shall

adopt rules within 180 days after this act

takes effect which shall provide criteria

to determine whether such zoning is

comprehensively enacted or enacted

primarily to permit signs.

40. Pet itioners argue that the 180 - day reference in

Section 479.07(10) must be strictly construed and that the

Department is not legislatively mandated, obligated, or

authorized to enact an administrative rule in 2003 that

"should have been enacted in 1984."

41. Petitioners' argument in that regard is rejected.

Section 479.07(10), Florida Statutes, gives the Department

clear rulemaking authority regarding the establishment of

criteria to determine whether commercial or industrial zoning

is comprehensively enact ed or enacted primarily to permit

signs. Moreover, the legislature has made it abundantly clear

that rulemaking is not a matter of agency discretion and must

be done as soon as feasible and practicable. § 120.54(1)(a),

Fla. Stat. Petitioners cannot succ essfully argue that the

Department's obligation and authority to adopt criteria

expired 180 days after the effective date of the law.

42. Petitioners further argue that Section 479.07(10)

was "pre - empted and rendered moot by the subsequently enacted

amen dment to section 479.01(3), Florida Statutes (1999),"

which defines commercial or industrial zone. 3/ Section 479.01,

Florida Statutes, reads in pertinent part as follows:

(3) 'Commercial or industrial zone' means

a parcel of land designated for commercia l

or industrial use under both the future

land use map of the comprehensive plan and

the land use development regulations

adopted pursuant to chapter 163. If a

parcel is located in an area designated for

multiple uses on the future land use map of

a compr ehensive plan and the land

development regulations do not clearly

designate that parcel for a specific use,

the area will be considered an unzoned

commercial or industrial area if it meets

the criteria of subsection (23).

* * *

(23) 'Unzoned commercial or industrial

area' means a parcel of land designated by

the future land use map of the

comprehensive plan for multiple uses that

include commercial or industrial uses but

are not specifically designated for

commercial or industrial uses under the

land dev elopment regulations, in which

three or more separate and distinct

conforming industrial or commercial

activities are located.

(a) These activities must satisfy the

following criteria:

1. At least one of the commercial or

industrial activities must b e located on

the same side of the highway and within 800

feet of the sign location;

2. The commercial or industrial activities

must be within 660 feet from the nearest

edge of the right - of - way; and

3. The commercial [sic] industrial

activities must b e within 1,600 feet of

each other.

Distances specified in this paragraph must

be measured from the nearest outer edge of

the primary building or primary building

complex when the individual units of the

complex are connected by covered walkways.

(b) Certain activities, including, but not

limited to, the following, may not be so

recognized as commercial or industrial

activities:

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 buil ding

principally used as a residence.

7. Railroad tracks and minor sidings.

8. Communication towers.

43. Prior to 1999, subsection (3) of Section 479.01,

Florida Statutes, read as follows:

'Commercial or ind ustrial 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 pu rsuant 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 commerci al

or industrial uses.

44. The current language of section 479.01(3) has not

changed since the 1999 amendment by Chapter 99 - 385, Laws of

Florida. Section 38 of Chapter 99 - 385, Laws of Florida, also

amended Section 479.07. By amending certain subsection s of

Section 479.07 but not subsection (10), the 1999 Florida

Legislature reenacted the language in subsection (10).

45. Moreover, the two statutory provisions can be read

in harmony. Section 479.01(3), Florida Statutes, defines a

commercial or industr ial zone in which signs may be located.

Section 479.07(10), Florida Statutes, prohibits issuing

permits for signs in such zones if the commercial or

industrial zoning was not comprehensively enacted or was

enacted primarily to permit signs.

46. Petitio ners further argue that the rulemaking

authority found in Section 479.07(10), Florida Statutes, has

been, in effect, pre - empted by the enactment of Chapter 163,

Florida Statutes. However, Section 163.3211, Florida

Statutes, reads in pertinent part as foll ows:

163.3211 Conflict with other statutes. --

. . . Nothing in this act is intended to

withdraw or diminish any legal powers or

responsibilities of state agencies or

change any requirement of existing law that

local regulations comply with state

stan dards or rules. (emphasis supplied)

47. Petitioners' arguments regarding preemption by later

legislative enactment are unpersuasive. Courts will disfavor

construing a statute as repealed by implication unless that is

the only reasonable construction. Jones v. State , 813 So. 2d

22 (Fla. 2002). Implied repeals of statutes are not favored

by the courts and will not be upheld in doubtful cases. Flo -

Sun, Inc. v. Kirk , 783 So. 2d 1029 (Fla. 2001).

48. Further, Petitione rs argue that the definition of

the word "parcel" in paragraph (2) of the proposed rule

conflicts with Section 163.3164(16), Florida Statutes, which

reads in pertinent part as follows:

Local Government Comprehensive Planning and

Land Development Regulatio n Act:

definitions. -- As used in this act :

(16) 'Parcel of Land ' means any quantity

of land capable of being described with

such definiteness that its locations and

boundaries may be established, which is

designated by its owner or developer as

land to be used, or developed as, a unit or

which has been used or developed as a unit.

(emphasis supplied)

49. The definition of the word "parcel" selected by the

Department is expressly limited to the term as it is used in

the proposed rule. Moreover, the de finition of parcel found

in Chapter 163, Florida Statutes, will have been employed by

the local government in determining its comprehensive plan and

regulations. It is the result of those determinations that

the Department examines within the context of i ts

responsibilities under Chapter 479, Florida Statutes.

50. Petitioners further argue that paragraphs (3)(b) and

(c) and the definition of "parcel" in subsection (2) of the

proposed rule are in conflict with the provisions of Section

479.01(3), Flor ida Statutes. The evidence presented does not

establish that paragraphs (b), (c) or the definition of

"parcel" in the proposed rule is in conflict with Section

479.01(3), Florida Statutes.

51. Based upon the statutory authority outlined above,

the Dep artment has not exceeded its grant of rulemaking

authority and the challenged proposed rule does not enlarge,

modify, or contravene the specific provisions of law

implemented as contemplated by Section 120.52(8)(b) and (c),

Florida Statutes.

Section 120. 52(8)(d)

52. Petitioners argue that subsection (3) of the

proposed rule is vague, fails to establish adequate standards

for agency decisions, and vests unbridled discretion in the

agency.

53. Petitioners contend that subsection (3) of the

proposed rule does not provide criteria for determining when

zoning is enacted primarily to permit signs. Criteria are

commonly understood to be standards, rules, or tests upon

which a judgment or decision can be based. American

Collegiate Heritage Dictionary 328 (3r d ed. 1997). The

factors listed in subsection (3) of the proposed rule are

criteria in this commonly understood sense. Petitioners

assert that the criteria allow for differing application on a

case by case basis. Petitioners also contend that the

criter ia set out in subsection (3) are vague, fail to

establish adequate standards for agency decisions, and vest

unbridled discretion in the Department.

54. An administrative rule is invalid if the rule

requires the performance of an act in terms that are so vague

that persons of common intelligence must guess at its meaning.

Southwest Florida Water Management District v. Charlotte

County , 774 So. 2d 903 (Fla. 2nd DCA 2001), citing Donato v.

American Telephone & Telegraph , 767 So. 2d 1146 (Fla. 2000).

55. T he Department has defined the term "parcel" for

purposes of the rule. Petitioners argue that the terms

"contiguous" and "public access" found in subsections (c) and

(d) are not clearly defined. These terms as used in

subsection (3) have common and ordina ry meanings. The fact

that the rule does not provide finite criteria does not mean

that the rule provisions are vague. Persons of common

intelligence can understand the list of criteria that the

Department will consider in deciding whether zoning was

pri marily enacted to permit signs.

56. The question that the Department is required to

answer necessitates that it look at a set of facts that will

be particular to each zoning action. The proposed rule spells

out exactly what the Department will consider as relevant to

its decision.

57. The rule does not create any discretion not

articulated in the statute. Section 479.07(10), Florida

Statutes, creates the discretion the Department will exercise

through the rule. A rule is not invalid merely becaus e the

underlying statute confers discretion on the agency. See

Florida Public Service Commission v. Florida Waterworks

Association , 731 So. 2d 836, 843 (Fla. 1st DCA 1999). The

rule provides standards by which the Department's discretion

will be exercise d. Any decision by the Department that zoning

was enacted primarily to permit signs would have to be tied

into the rule criteria, and would be capable of review on that

basis. See generally Cortes v. State Bd. Of Regents , 665

So. 2d 132, 138, 140 (Fla. 1 st DCA 1995).

58. The proposed rule implements the discretion given to

the Department by the Legislature. "The Legislature itself is

hardly suited to anticipate the endless variety of situations

that may occur or to rigidly prescribe the conditions or

so lutions to the often fact - specific situations that arise . . .

." Avatar Development Corp. v. State , 723 So. 2d 199 (Fla.

1999).

Section 120.52(8)(e)

59. Finally, the Amended Petition alleges that

subsection (3)(a) of the proposed rule is arbitrary. 4/

P etitioners contend that the list of excluded uses

inappropriately tracks the list of excluded uses that appear

in the statutory use test created by Sections 479.01(3) and

(23), which are set forth above. Petitioners argue that the

use test in subsection ( 23) no longer is viable because of the

1999 amendment to the definition of "commercial or industrial

zone" in subsection (3).

60. The list of excluded uses substantially tracks the

list of uses under the statutory test for an "unzoned

commercial or indu strial area." § 479.01(23), Fla. Stat. The

statute in turn tracks the list of uses excluded from the

similar use test in the 1972 agreement between the State of

Florida and the United States Department of Transportation.

The Department's decision to exc lude these uses from its rule

inquiry follows the same logic found in statute and policy.

61. A rule is arbitrary if it is not supported by logic

or the necessary facts. § 120.52(8)(e), Fla. Stat. The

proposed rule is supported by facts and logic.

62. Based upon the evidence presented and the statutory

authority outlined above, the Department has not exceeded its

grant of rulemaking authority; the proposed rule does not

enlarge, modify, or contravene the specific provisions of law

implemented; the propo sed rule is not vague, does not fail to

establish adequate standards for agency decisions, and does

not vest unbridled discretion in the agency; and the proposed

rule is not arbitrary.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

o f Law, it is

ORDERED:

The Amended Petition challenging proposed Rule 14 - 10.0052

is denied.

DONE AND ORDERED this 16th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAR OS

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

Divisio n of Administrative Hearings

this 16th day of February, 2004.

ENDNOTES

1/ All references to Fla. Stat. will be to Florida Statutes

2003, unless otherwise indicated.

2/ Petitioners' Proposed Final Order also asserts that the

proposed rule is not su pported by competent substantial

evidence. However, this language, which was found in Section

120.52(8)(f), Florida Statutes (2002), was repealed by Section

1, Chapter 2003 - 94, Laws of Florida, and became effective June

4, 2003. Accordingly, that argume nt will not be addressed in

this Final Order. Additionally, Petitioners assert in the

Proposed Final Order that the proposed rule will make the

permitting process more expensive, complex, and time

consuming. The Amended Petition did not allege any violat ion

of Section 120.52(8)(f), Florida Statutes (2003), and,

therefore, that argument will not be addressed in this Final

Order.

3/ The "preemption" arguments are construed to be a challenge

under Section 120.52(8)(c), Florida Statutes.

4/ Petitioners' Proposed Final Order argues that the

definition of "parcel" is "contrary to state law and is done

without logic, thought or reason." However, the Amended

Petition did not allege that the definition of parcel is

arbitrary or capricious, but that it is cont rary to or in

conflict with certain laws. That argument is addressed under

the analysis of Section 120.52(8)(b) and (c) herein.

COPIES FURNISHED :

Gerald S. Livingston, Esquire

Livingston & Riley P.A.

Post Office Box 2151

Orlando, Florida 32802

Robert M. Burdick, Esquire

Assistant General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliott Building , Room 201

Tallahassee, Florida 32399

Scott Boyd, Acting Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adver sely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68,

Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of ap peal with the

Clerk of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

District Court of Appeal, First District, or with the District

Court of Appeal in the Appellate District where the party

resid es. The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.