04-001765 Crown Outdoor Advertising, Inc., And Tropical Landholdings vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, January 19, 2005.

Summary: Petitioner Outdoor Advertising Inc.`s sign permits applications were appropriately denied by Respondent, as the sites were not zoned for commercial or industrial activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CROWN OUTDOOR ADVERTISING, )

INC., AND TROPICAL )

LANDHOLDINGS, )

)

Petitioners, )

)

vs. ) Case Nos . 04 - 1764

) 04 - 1765

DEPARTMENT OF TRANSPORTATION, ) 04 - 1766

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, these causes came on for final hearing

on October 7, 2004, in Tallahassee, Florida, before Fred L.

Buckine, a duly - designated Administrative Law Judge of the

Divisio n of Administrative Hearings. The following appearances

were entered.

APPEARANCES

For Petitioners: Carl E. Patrick, Esquire

Carl E. Patrick, P.A.

6823 Old Ranch Road

Sarasota, Florida 34241 - 9640

For Respondent: Erik R. Fennima n, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

The issue in these causes is whether denial of Petitioners'

outdoor advertisi ng sign site permit applications by Respondent

were correctly determined under Subsection 479.111(2), Florida

Statutes (2003), on the basis that the sign sites were unzoned

commercial/industrial areas; and on the basis that within

attending factual circums tances, the sign site did not qualify

as unzoned commercial/industrial areas as defined in Subsection

479.01(23), Florida Statutes (2003).

PRELIMINARY STATEMENT

On September 8, 2003, Petitioners, Crown Outdoor

Advertising, Inc., and Tropical Landholdings, filed six

applications for outdoor advertising sign site permits with

Respondent, Department of Transportation (Department). By

Notice dated September 23, 2003, the Department denied three of

the six applications.

On October 21, 2003, Petitioners filed three request for an

administrative hearing contesting the three denials by the

Department; and on April 19, 2004, the matter was referred to

the Division of Administrative Hearings (DOAH) requesting the

assignment of an Administrative Law Judge to conduct a

Chapter 120, Florida Statutes (2003), proceeding.

On May 19, 2004, the Initial Order was entered, and on

May 26, 2004, Respondent filed a response thereto. On June 9,

2004, an Order of Consolidation for three cases (DOAH Case Nos.

04 - 1764, 04 - 1765 and 04 - 2766) 1/ was entered. The consolidated

cases were initially assigned to Administrative Law Judge

William F. Quattlebaum.

A Notice of Hearing scheduling the final hearing for

July 22, 2004, and an Order of Pre - Hearing Instructions were

entered on June 9, 2004,

An unopposed motion for continuance filed by Petitioners

was granted by Order dated July 1, 2004, rescheduling the final

hearing for August 31, 2004. On July 16, 2004, an Unopposed

Motion for Continuance filed by Respondent was granted by Order

dated July 22, 2004, rescheduling the final hearing for

October 7, 2004, in Tallahassee, Florida.

Pre - hearing statements were filed on September 28 and

October 1, 2004, respectively, by Respondent and Petitioners.

The final hearing was held, as scheduled on October 7, 2004.

At the final hearing, Petitioners presented the testimony

of Lynn Holschuh, the Department's state administrator for

outdoor advertising, and James Taylor Duff, part owner of

Petitioner Tropical Landholdings. Petitioners' Exhibits A, B

and C were admitted into evidence. Respondent also presented

the testimony of its employee, Ms. Holschuh; and Respondent's

Exhibits 2, 3, and 4 2/ were admitted into evidence.

Official recognition was taken of Chapter 479, Florida

Statutes (2003), 23 C.F.R. 750.708, and Florida Administrative

Code Rules 9J - 5.003 and 14 - 10.0052; the City of North Port

Ordinance No. 02 - 46, the City of North Port Comprehensive Plan;

and the Final Order in DOAH Case No. 03 - 3682 issued on

February 16, 2004, by Administrati ve Law Judge Barbara Staros. 3/

The parties were directed to file proposed recommended

orders within ten days from the date of the Transcript, which

was filed with DOAH on October 22, 2004. The parties' joint

motion for an extension of time to file p ropo sed recommended

orders 20 days from the date of the Transcript was granted,

which waived the time for this Recommended Order. See Florida

Administrative Code Rule 28 - 106.216.

On November 10 and 15, 2004, Respondent and Petitioners,

respectively, timely f iled their Proposed Recommended Orders

which have been considered by the undersigned in preparation of

this Recommended Order.

FINDINGS OF FACT

Based upon the observation of the witnesses and their

demeanor while testifying; documentary materials received in

evidence; evidentiary rulings made pursuant to Sections 120.569

and 120.57, Florida Statutes (2003); and the entire record of

this proceeding, the following relevant and material findings of

fact are determined:

1. Petitioner, Tropical Landholdings, a Florida

Corporation, was created in 1998 and purchased approximately 700

to 800 acres of land comprised of residential multi - family and

commercial properties along Interstate 75 (I - 75) in Punta Gorda,

Florida. On September 8, 2003, Petitioner, Crown Adver tising,

Inc., of Belleview, Florida, submitted three outdoor advertising

sign site permit applications to the Department for review.

2. On September 23, 2003, the Department denied the three

outdoor advertising sign site permit applications for the

foll owing reasons: (1) the sign sites were not permitted under

the local land use designation of site ( § 479.111(2), Fla. Stat.

(2003)) ; and (2) the sign sites did not qualify as unzoned

commercial/industrial area. § 479.01, Fla. Stat. (2003) .

3. The sign s ite permit application forms used by

Petitioners in these causes were composed and authorized by the

Department. The form required the applicant to obtain and

provide information regarding the proposed sign site, what is

proposed to be constructed on the site, and where the proposed

construction is to occur.

4. The sign site permit applications also required the

applicant to secure information from the appropriate local

zoning official of the future land use designation and the

current zoning of the propo sed sites enacted by the local

government's Comprehensive Plan and land use development

regulations. This form required information from the local

government as to whether the applicant is or is not in

compliance with all adopted local ordinances. Permis sion to

erect an outdoor sign structure on the identified sign site is

subject to approval by the City.

5. Petitioners complied with the requested information.

The local government, the City of North Port, approved the three

sign site permit applicati ons in question and granted

Petitioners permission to erect three outdoor billboard signs.

This local grant of approval was then subjected to concurring

approval by the Department.

6. After receiving the sign site permits that were

approved by the City, the Department engaged the services of a

consultant to conduct on - site review and identification of:

(1) the local government's designation for each proposed sign

site; (2) the permitted uses of each proposed sign site (local

drainage facilities, pipelin e corridors, underground

communication cables, electric transmission lines, and outdoor

advertising signs); and (3) a review of adjacent and surrounding

parcels. The consultant reported to the Department the factual

circumstances attendant the three local ly approved sign sites.

It should be noted that the consultant did not render an opinion

regarding the Department's approval or denial of the sign site

permit applications.

7. The sign sites in question were zoned under the local

"land use designation" of the City of North Port's Ordinance

02 - 46, Section 53.146 (Ordinance 02 - 46), as a "utility

industrial corridor." The zoned land was composed of strips of

land measuring 25 to 70 feet in width on the west side and 160

to 170 feet in width on the east sid e.

8. The "permitted governmental uses" of a parcel zoned as

a "utility industrial corridor," included such uses as

underground communication cables, electric transmission lines,

and outdoor advertising signs. Ordinance 02 - 46, under the title

"Prohibite d Uses and Structures," specifically prohibits "all

commercial and industrial uses."

9. Based upon a review of all information provided by

Petitioners, the local government, and its consultant, the

Department first determined the three sign sites on which the

subject signs were to be erected and located, prohibited

commercial or industrial uses. The Department then determined,

based upon an analysis of the materials provided by its

consultant and the City of North Port, the three sign sites in

question ha d not been zoned for commercial or industrial uses as

a part of the local government's comprehensive zoning plan.

Based upon (1) the prohibition of commercial or industrial uses

and (2) no commercial or industrial zoning of the sign sites,

the Department concluded these three sign sites were zoned

"primarily to permit outdoor advertising," a prohibited

function. The denials were required.

10. Under the local land use designation of Ordinance

02 - 46, the City of North Port's permitted uses included local

drainage facilities and a pipeline corridor.

11. Under governmental uses designation of Ordinance

02 - 46, the City of North Port's permitted uses included

underground communication cables, electric transmission lines,

and outdoor advertising. However, Or dinance 02 - 46 specifically

prohibits all commercial and industrial uses under the

governmental uses designation.

12. When questioned by Petitioners, Ms. Holschuh testified

"that the Department's intent was to allow [sign] permits

whenever possible and neve r prohibit the installation of

billboards." From this specific statement of testimony,

Petitioners argued that "implementing the intent the Department

must look beyond the labels of the zoning and look at the actual

primary uses allowed under those design ations." (Emphasis

added.) Ms. Holschuh disagreed with Petitioners'

characterization of the Department's procedures and convincingly

maintained that the Department based its denials on "sign site

zoning" and factors considered for determining an "unzoned

commercial/industrial area" as defined by statute.

13. Continuing with its argument, Petitioners conclude

"[T]he department . . . appears to be in conflict with Judge

Barbara Staros' decision of February 16, 2004, in a rule

challenge proceeding, where s he analyzed the Sign Permit

procedure under Section 479.07, Florida Statutes." In her Final

Order, Administrative Law Judge Barbara Staros made a Finding of

Fact in paragraph 30, stating:

Once the local government zoning official

certifies that the propo sed 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 look factually

at whether the zoning action was consistent

with the comprehensive p lan. Page 13.

14. The procedures followed by the Department in this

proceeding complied with Judge Staros Finding of Fact in

paragraph 31, where she wrote:

The Department uses the application and the

information contained therein to determine

whether a proposed sign location falls

within the definition of a "commercial or

industrial zone." If it does, [fall within]

then the Department determines whether those

designations were adopted as part of the

local government's comprehensive planning

efforts or w ere "primarily" adopted to

permit outdoor advertising signs on that

location. Page 30.

15. Based upon it's receipt, review, and analysis of the

specific facts provided by all parties of interest, the

Department determined the sites where the signs were to be

erected prohibited commercial or industrial use. The Department

factually determined that no local zoning identified the sites

as commercial or industrial.

16. The Department concluded correctly and in accord with

Florida Administrative Code Rule 1 4 - 10.0052 that these three

sign sites were zoned by the City of North Port, the local

governmental entity, "primarily to permit outdoor advertising"

contrary to sign site permit procedures under Section 479.07,

Florida Statutes (2003).

17. Based upon th e evidence of record and considering the

size of the sign site, the local government's zoning of the

site, designated uses of the site, and prohibited uses on the

site, denial of the sign applications was correctly determined

pursuant to Subsection 479.111 (2), Florida Statutes (2003), and

Florida Administrative Code Rule 14 - 10.0052.

18. Based on the testimonies of Ms. Holschuh and James

Duff, who testified regarding his ownership, property taxes

paid, and the investors' inability to use the property in

qu estion to their economic advantage, Petitioners failed to

carry the burden of producing a preponderance of credible

evidence to establish that the Department incorrectly and/or

wrongfully denied Petitioners' applications for three sign site

permits pursuan t to Subsection 479.111(2), Florida Statutes

(2003), and Florida Administrative Code Rule 14 - 10.0052.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2003).

20. Respondent, Department of Transportation, is the state

agency responsible for enforcing federal regulations of outdoor

advertising pursuant to Section 479.02, Florida Statutes (2003 ),

that authorizes the Department to:

(1) Administer and enforce the provisions

of this chapter and the agreement between

the state and the United States Department

of Transportation relating to the size,

lighting, and spacing of signs in accordance

wit h Title I of the Highway Beautification

Act of 1965 and Title 23, United States

Code, and federal regulations in effect as

of the effective date of this act.

(2) Regulate size, height, lighting, and

spacing of signs permitted in zoned and

unzoned comm ercial areas and zoned and

unzoned industrial areas on the interstate

highway system and the federal - aid primary

highway system.

(3) Determine unzoned commercial areas

and unzoned industrial areas.

* * *

(7) Adopt such rules as it deems

necessary or proper for the administration

of this chapter, including rules which

identify activities that may not be

recognized as industrial or commercial

activities for purposes of determination of

an area as an unzoned commercial or

industrial area.

21. Feder al law and regulations provide the basis and

authority for Florida's requirement that signs be located within

commercial or industrial areas. See 23 U.S.C. 131(d) that

states, in pertinent part,

[S]igns may be erected and maintained . . .

within areas . . . which are zoned

industrial or commercial under authority of

State Law, or in unzoned commercial or

industrial areas . . . as may be determined

by agreement between the State and the

Secretary. . . States shall have full

authority . . . to zone areas fo r commercial

or industrial purposes.

22. Commercial or industrial zones and unzoned commercial

or industrial areas are defined in Subsection 479.01(3)

and (23), Florida Statutes (2003), as:

(3) "Commercial or industrial zone" means

a parcel of land de signated for commercial

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 l and use map of a

comprehensive 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

industria l uses under the land development

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 be 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 i ndustrial activities

must be 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 building

principally used as a residence.

7. Railroad tracks and minor sidings.

8. Communication towers.

23. Petitioners, as applicants for sign permits and the

parties seeking affirmative relief, have the bur den of proof by

a preponderance of the evidence to establish that the Department

wrongfully denied their applications for three sign site permits

pursuant to Subsection 479.111(2), Florida Statutes (2003), and

Florida Administrative Code Rule 14 - 10.0052. Florida Department

of Transportation v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

24. Petitioners failed to produce, through the testimonies

of Ms. Holschuh and James Duff, a preponderance of credible

evidence of record that the alleged factual basis relied upon by

the Department pursuant to Subsection 479.111(2), Florida

Statutes (2003), and Florida Administrative Code Rule 14 -

10.0052, resulted in wrongfully denying Petitioners' three

outdoor sign site permit applications.

RECOMMENDED ORDER

B ased upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that Respondent, Department of Transportation,

enter a final order of dismissal of Petitioners, Crown Outdoor

Advertising, Inc., and Tropical Landholdings', challenge of the

denial of its three outdoor advertisement sign site permit

applications.

DONE AND ENTERED this 19th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January , 2005.

ENDNOTES

1/ In Case No. 04 - 1764, the applications denied were for Permit

Nos. 54579 and 54580; Case No. 04 - 1765, the applications denied

were for Permit Nos. 54838 and 54584; and Case No. 04 - 1766, the

application denied were for Permit Nos. 545 81 and 54582.

2/ Respondent's Exhibit 2, 3 and 4 are applications for sign

site permits at three different locations at State Road 93

(I - 75) south of Toledo Blade Boulevard, Sarasota, Florida.

3/ In Florida Outdoor Advertising Association, Inc.; Clear water

Channel Outdoor, Inc.; Koala L.L.C.; Viacom Outdoor, Inc. d/b/a/

National Advertising Company v. Department of Transportation ,

Case No. 03 - 3682RP (DOAH February 16, 2004), Petitioners, all of

whom are engaged in the business of outdoor advertising,

c hallenged the Department proposed Florida Administrative Code

Rule 14 - 10.0052 as an invalid exercise of delegated legislative

authority. The proposed rule was found to be valid and the

challenge dismissed. Petitioners appealed Administrative Law

Judge Ba rbara Staros' Final Order and the appeal was dismissed.

Florida Administrative Code Rule 14 - 10.0052 was a valid rule at

all times material to the above proceeding.

Petitioners' arguments, both at hearing and in post - hearing

submittals, that based upon " an agreement between the Department

and Petitioners," as a condition of the dismissal of their

appeal that the Department would amend Florida Administrative

Code Rule 14 - 10.0052, is without merit and not considered in

this proceeding by the undersigned.

COPIES FURNISHED :

Erik Fenniman, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0450

Carl E. Patrick, Esquire

Carl E. Patrick, P.A.

6823 Old Ranch Road

Sarasota, Florida 34241 - 9640

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Stop 58

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Stop 58

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Or der should be filed with the agency that

will issue the final order in these cases.