06-003255 Lamar Advertising Of Ft. Walton Beach vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, April 4, 2007.

Summary: Discussion of zoned and unzoned commercial areas in relationship to the Department of Transporation signing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING OF FT. WALTON )

BEACH, )

)

Petitioner, )

) Case No. 0 6 - 3255

vs. )

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDE D ORDER

Upon due notice, a disputed - fact hearing was convened in

this cause on November 17, 2006 , in DeFuniak Springs , Florida,

before Ella Jane P. Davis, a duly - assigned Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

Fo r Petitioner: James E. Moore, Esquire

The Moore Law Firm

102 Bayshore Drive

Post Office Box 746

Niceville, Florida 32588 - 0746

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, M ail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

Whether the Florida Department of Transpo r t ation (FDOT)

properly denied application (s) for an advertising sign permit .

PRELIMINARY STATEMENT

On September 27, 2005, Petitioner, Lamar Advertising of Ft.

Walton Beach (Lamar) , filed two application s for outdoor

advertising sign site permits, seeking permit s from Respondent

for one sit e location for a two - faced outdoor advertising sign.

By notice dat ed October 18, 2005, the application was denied.

On August 28, 2006, Petitioner filed an Amended Request for

Administrative Hearing, which was referred to the Division of

Administrative Hearings the same day.

On September 15, 2006, the case was noticed f or a

November 17, 2006, final disputed - fact hearing.

At the hearing, Joint Exhibit A, the parties ’ Joint Pre -

hearing Stipulation , was admitted in evidence, as were Joint

Exhibits 1 through 10.

Petitioner presented the oral testimony of Billy Wayne

Strick land , Chad Pick e ns, and Tim Durbin . Petitioner's Exhibits

1 and 2 were admitted in evidence. Respondent presented the

oral testimony of Lynn Hols c huh, and Billy Wayne Strickland .

Official recognition was taken of Chapter 479, Florida

Statutes, and of Flo rida Administrative Code Chapter 14 - 10.

A Transcript was filed on December 26, 2006, and the

parties timely filed their respective Proposed Recommended

Orders on January 16, 2007.

On January 19, 2007, Respondent filed a Motion to Strike

Petitioner's Prop osed Recommended Order. Petitioner's Response

in opposition thereto was filed on February 1, 2007. Upon

consider ation , an Order denying the Motion to Strike was entered

on February 1, 2007.

Each party’s proposal has been considered, and their

relevant w ritten stipulations of fact and law have been adopted,

with some modifications for clarity and standard f ormat .

FINDINGS OF FACT

1 . On September 27, 2005, Petitioner Lamar submitted two

permit applications (Nos. 55595 and 55596) to FDOT for two signs

to b e attached to one monopole, one sign to be facing north and

one sign to be facing south. The applications stated that the

proposed location of the monopole is the west side of Sta t e Road

85 (SR 85) , 200 feet ( or .042 miles) south of Barnes Road in

Okaloos a County, Florida. SR 85 is a F ederal - aid primary

h ighway. (See Stipulated Facts 1 and 4.)

2 . The proposed sign structures met the size, height, and

spacing requirements of Section 479.07, Florida Statutes. (See

Stipulated Fact 3.)

3 . The proposed sig n location is in an unincorporated area

of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa

County is the only local entity involved herein.

4 . The 42.5 acre parcel of land for the proposed billboard

has significant frontage on SR 85, north of Crestview, Okaloosa

County . A residence is located on a portion of the parcel .

5 . The permit application form used by Petitioner was

composed and authorized by FDOT. Petitioner's submitted

application was complete, and the appropriate fee was pai d to

FDOT. (See Stipulate d Fact 2.)

6 . Upon request, FDOT provides a published " I nstruction"

pamphlet to assist applicants for outdoor advertising sign

permits. Page s 12 - 13 thereof provide, in pertinent part , as

follows:

Land Use/Zoning: Outdoor adver tising signs

must be located in areas where the land use

category allows properties which lie within

660 feet of the controlled road and which

are within the contiguous land use

designation area to be developed with

primarily commercial or industrial uses.

This information is found in the Land

Development Regulations and on the Future

Land Use Map of the City or County’s

Comprehensive Growth Management Plan.

The City or County or other local government

must certify that the current zoning (Land

Developme nt Regulations) and the Future Land

Use Map designation allow for

commercial/industrial uses and that outdoor

advertising signs are allowed for that

designation.

When the Land Development Regulations

[zoning] or the Future Land Use Map do not

specifically designate the parcel as

commercial or industrial, but allow for

multiple uses on the parcel, including

commercial or industrial, a “use test” will

be employed to determine whether an outdoor

advertising permit may be issued. The use

test requires that th ere be a minimum of

three (3) conforming businesses within 1600

feet of each other, and that the sign be on

the same side of the highway and within 800

feet of one of the businesses.

The Department will not approve an outdoor

advertising sign permit when local

regulations prohibit outdoor advertising at

the proposed location. ( Em phasis supplied. )

7. In preparation of Petitioner’s application ( s ) , Chad

Pickens, Petitioner ’s Lease Manager, read FDOT’s Instruction

pamphlet as guaranteeing Petitioner a “use t est” if either the

County land use map or the zoning for this parcel provided for

mixed or multiple uses. H e conducted extensive site location

and ownership searches; made contacts with the potential lessor;

submitted photographs of three businesses withi n 1600 feet of

the proposed outdoor advertising sign location; filled out the

permit application ; proceeded to the appropriate Okaloosa C ounty

government officials for C ounty approval; surveyed and staked

out the proposed outdoor advertising sign location; and took

photographs of the proposed site. He then submitted this

information on FDOT - approved forms, along with a letter of

authorization and the application fee.

8. Petitioner Lamar l eased the property site from the

owner, with no lease payments due f rom Petitioner to the

landowner unless FDOT approved its sign permits.

9 . At the time of the application, the three commercial

businesses closest to the proposed sign location were:

(a) Dogwood Veterinary Clinic -

approximately 118 feet south of the pr oposed

sign site. This business specializes in

treating house pets. The clinic makes no

farm calls, but horses may be treated if

brought into the clinic. This business also

contains a retail outlet;

(b) Billy's Trade Store, approximately 463

feet sout h of the proposed sign site, is a

convenience store; and

(c) Plantation Farms Pet Grooming,

approximately 780 feet northeast of the

proposed sign site. This business, in

addition to retail sales of pet items and

food, incorporates a section for the

groo ming and boarding of household pets.

This business does not handle livestock.

(See Stipulated Fact 9.)

10 . These three business establishments, submitted by

Petitioner for FDOT’s application of a "use test," were

businesses one could actually walk into and purchase goods or

services.

11 . In addition to information regarding the proposed sign

site, the proposed construction on the site, and where the

proposed construction was to occur, the permit application

required the applicant to secure Okaloosa Cou nty’s local

certification of the proposed site’s future land use designation

and its current zoning, which Petitioner did.

1 2 . Although FDOT requires that local government entities

sign off on advertising sign applications to FDOT , the State

Agency does n ot rubber stamp those approvals. Ultimately, FDOT

administers State statutes and regulations in conjunction with

its Federal agreement. The State is not bound by the County’s

permitting of signs.

1 3 . In January, 1972, the State of Florida entered into a n

agreement with the Federal Highway Administration, in which the

State agreed to implement and carry out the provisions of

Section 131 of Title 23, United States Code (1965), commonly

referred to as "The Highway Beautification Act." Through this

agreemen t, Florida agreed to limit the permitting of outdoor

advertising signs adjacent (within six hundred sixty feet of the

nearest edge of right - of - way) to Interstate or Federal - aid

p rimary highway systems, to areas which are zoned industrial or

commercial or a re located in unzoned commercial or industrial

areas. Failure of FDOT to comply with the terms of this

agreement could result in a loss of 10 percent of federal - aid

highway funds.

14 . Lynn Holschuh, FDOT Outdoor Advertising Administrator,

testified that since the January 1972 , agreement with the

Federal Department of Transportation, Florida local governments

have been required to “zone” all property. Therefore, the 1972

Agreement’s use of the term, “unzoned commercial or industrial

areas,” is an anachron ism, because all Florida property should

now be zoned. Still, the term remains in the Florida Statutes ,

and FDOT uses this term to grapple with areas where specific

land use is not very well defined.

1 5 . Zoning designations arise from county land deve lopment

regulations, i.e. zoning ordinances. Future land use

designations come from a Land Use Plan, adopted by the local

entity or entities, pursuant to Chapter 163, Florida Statutes,

and placed on a future land use map.

1 6 . The proposed sign location i s on a parcel with a land

use designation of “Agricultural 1” (AA1). (See Stipulated Fact

6.) In other words, the parcel is zoned for agriculture.

1 7 . Okaloosa County Code 8.02.02 provides that permanent

off - site outdoor advertising signs are a permitt ed use within

agricultural areas. (See Stipulated Fact 7.) Counties may

allow off - s ite advertising along county roads, but interstate

and federal primary - aid highways, such as SR 85, are within

FDOT’s jurisdiction.

1 8 . The applicable Future Land Use Ma p designates the

proposed site for “rural mixed land use” (RMU). (See Stipulated

Fact 8.)

19 . This multiple use future land use map designation

includes residential and non - residential uses. Non - residential

uses may incl ude commercial or business uses, although the

parcel being designated “rural” suggests otherwise.

20 . There is no evidence herein that the terms used in the

current zoning or on the future land use map do not comport with

the same or similar terms used in Chapter 163, Florida Statutes,

or in 23 C . F . R . Section 750.703(a) or 750.708.

2 1 . At all times material, Billy Wayne Strickland, Florida

Department of Transportation Outdoor Advertising Senior Agent ,

processe d all outdoor advertising applications , statewide , on

behalf of FDOT. He tes tified that i f the current land

development regulations (current zoning ) and the future land use

designation (future land use map) differ, FDOT considers both .

If the current zoning and future land use map are both a "mixed

use" designation, FDOT perform s its own use test , sometimes

delegated to an outside consultant .

22. Ms. Holschuh testified that “agriculture” is a “rather

specific” zoning term/designation. However, if a zoning

category authorizes more than one use, FDOT look s at the current

primary uses of the parcel. FDOT’s intent is not to go by the

label that has been applied to the zoning category , but “to go

beyond the label to determine whether or not the area really has

the characteristics of a commercial or an industrial area,” and

that wit h regard to the characteristics of commercial zoning,

the use test would be employed to determine if there were bona

fide commercial or industrial activities within the specified

footage of a proposed sign location.

2 3 . In processing the application(s) in this case ,

Mr. Strickland accepted the future land use designation “AA1”,

for “agricultural , ” as certified by Planner Tim Durbin on behalf

of Okaloosa County. He also researched Okaloosa County’s land

development regulations, which described the permit ted uses for

property designated " agricultural . "

2 4 . The Okaloosa County Land Develo pment Code s pecifically

designated three zoning categories as “Commercial.” They are

“Business Retail,” Business General,” and “Business Tourism ” .

2 5 . In the Code, c om mercially zoned areas , u nder the

categories of "Business Retail" and "Business General," states:

"[t]his is a Commercial (C) and Mixed Use Development (MU)

Future Land Use Map Category." Under the category of "Business

Tourism," the Code states: "[t ] his is a High Density

Residential (HDR), a Commercial (C), and a Mixed Use Development

(MU) Future Land Use Map Category." Each of these business

categories allow s for traditional commercial uses such as retail

stores, filling stations, banks, restaurants and mini -

warehouses.

2 6 . The Okaloosa County Land Development Code specifically

designated two zoning categories as “Industrial.” They are

“Protected Industrial Districts” and “Airport Industrial Park

Districts.”

2 7 . T he Okaloosa County Land Development Code , under

“I ndustrial ” uses , has zoning categories of "Protected

Industrial Districts" and "Ai rport Industrial Park Districts."

T he Code provides: "[t]his is an Industrial (I) Future Land Use

Map Category."

28 . No similar reference to either “ comme rcial ” or

“ industrial ” zonin g is made under the zoning for “a gricultural ”

areas. The agricultural zoning does not mention “filling

stations.”

2 9 . The Okaloosa County Land Development Code lists the

following (with some restrictions not material to these

proceedings) in areas zoned “agricultural”:

Permitted Principal Uses and Structures :

- Dwellings

- Commercial and non commercial agricultural

[structures]

- Sawmills

- Places of worship, schools, publicly owned

and operated community structures and land,

nursi ng homes, charitable or philanthropic

institutions; public or private golf

courses; public lands; public or private

cemeteries, private lodges and fraternal

orders.

- Privately operated day nurseries, pre -

schools, and kindergartens.

- Private airstrips

- Priv ate Airports

- Public or private fishing clubs, and other

similar enterprises.

- Recreational areas for public use,

campgrounds, travel trailer parks, including

golf driving ranges, swimming pools, fishing

lakes, and similar recreation uses.

- Public or priva te stables

- Commercial kennels and the raising of other

small animals for sale

- Community residential homes

- Radio, television and commercial towers and

antennas.

- Terminals for petroleum products

- Public Utility Structures

- Municipal solid waste transfer stations and

recycling facilities.

Permitted Accessory Uses and Structures :

Uses and structures which are customarily

accessory and clearly incidental and

subordinate to permitted or permissible uses

and structures. Home Occupations .

Special Exception U ses and Structures :

Activities that are agricultural or support

agricultural activities and are in keeping

with the rural character of the area

Public or privately operated gun clubs

Borrow Pits

Construction and Demolition Debris landfills

Prohibited Uses and Structures:

Any use or structure not of a character

indicated under permitted accessory uses and

structures, or permitted as a special

exception .

Class I, II and III landfills are

prohibited, along with other types of solid

waste disposal facilities e xcept as

identified in Permitted Uses and Special

Exceptions. [ Boldface in original;

underlining supplied ]

30 . Mr. Strickland opined that a terminal for storing

petroleum products , transported to that location in tanker

trucks, for use by m achinery on a farm , which use is allowed by

the County ’s zoning code to be located on land zoned

agricultural (see Finding of Fact 29) , would not be the same as

a gas/filling station for cars, permitted under the County’s

commercial or industrial classification. Mr. Strickland’s

interpretation is reasonable , and it was not credibly refuted by

Mr. Durbin, the County’s planner, whose testimony that the

County would allow a filling station on the parcel in question

did not comport with the clear designations under the Co unty’s

zoning . (See Findings of Fact 2 4 - 2 9 and 3 5 - 3 6 .)

31 . In processing th e application s in this case ,

Mr. Strickland reasonably interpreted the current zoning to

permit only commercial uses "tied to agriculture" on this

parcel.

32 . Mr. Strickland also used the Okaloosa County Tax

Appraiser’s records . The County A ppraiser listed the parcel

whereon the signs were intended to be erected as improved

agricultural land containing a single family dwelling for which

a homestead exemption was taken/granted . A residential use

clearly is not a commercial use. Mr. Strickland took this to

mean that the “rural mixed use” for that parcel implied a

“residential” use , as opposed to a “non - residential ” and

potentially commercial use , under the RMU designation on the

fu ture land use map.

33 . FDOT never permits billboards on residential property

unless the parcel is currently zoned commercial and the parcel

merely contains a private residence that has been grandfathered -

in.

34 . On October 18, 2005, FDOT, th rough Mr. S trickland,

issued a N otice of Denied Application stating:

Location is not permittable under land use

designations of the site [s. 479.111(2), FS]

Location does not qualify as unzoned

commercial/industrial area [s. 479.01(23),

FS]

At the same time, FDOT r eturned Petitioner’s application fee

checks. (See Stipulated Fact 10 . )

35 . At hearing, County Planner, Tim Durb in , testified that

based upon Okaloosa County ’s current zoning and future land use,

the proposed sign site met Okaloosa C ounty standards and w ould

support an outdoor advertising sign. He further testified that

the County no longer considers "AA1” , which once referred to

parcel size , "to have any significance ,” and that the County

plans, in the future, “to remove that designation from its Land

D evelopment Code. ” According to Mr. Durb in, t he County now

considers all agricultural land to be "AA." However, as of the

date of hearing, more than a year after the sign permit

application review by FDOT, the County still has not changed its

AA1 category .

36 . According to Mr. Durbin, Okaloosa Cou nty currently

would permit the following non - residential uses of the p arcel at

issue : "small scale agricultural, civil uses of churches and

houses of worship, public or private primary or secondary

schools, sm all scale neighborhood commercial or business uses,

general commercial uses. Small scale neighborhood commercial

and business includes neighborhood - serving offices,

neighborhood - serving retail activities. ” He opined that any

classification that contains “residential” and “non - residential”

uses, as do both the AA1 zoning category and the land use map

” RMU - rural mixed uses” designation, may contain commercial

projects within the “non - residential” areas. He equated

“filling stations” with “terminals for pet roleum products. "

37 . Herein, b ecause the zoning and land - use map

designations were not identical, Mr. Strickland did not

consider , in making his decision to deny the sign permit, the

three businesses listed near the parcel . He did try to discover

how th e actual parcel in question was currently regarded

locally. In doing so, he used reasonable methods. He denied

the sign application ( s ) on the basis of the future land use

designation (rural mixed use - residential ) and the agricultural

zoning current when these applications were submitted and

considered between September 27, 2005 , and October 18, 2005 ,

( AA1 - agricultural). Petitioner has not demonstrated that any

change in the zoning or land use designation has occurred since

that time.

38 . However, w hen a sked at hearing how he would consider

those three nearby businesses (a veterinary, a convenience

store, and a pet groomer), which had been submitted for a use

test, Mr. Strickland testified that he would consider the

veterinary and the store to be commerci al uses and would

consider Plantation Farm Pet Grooming to be not commercial

because it contained a family residence with a homestead

exemption. Petitioner did not refute that the pet groomer ’s

building primarily constitute s a residential use .

CONCLUS IONS OF LAW

39 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2006) . ( See Stipulated Law

Paragraph 1.)

40 . Petitioner herein has standing as the applicant. ( See

Stipulated Law Paragraph 2.)

41. As the party seeking a S tate sign permit, Petitioner

bears the duty to go forward and the burden of proof by a

preponderance of the evidence. Florida Dept. of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

42 . FDOT is the State Agency with the authority to

regulate outdoor advertising and issue permits for signs located

along interstate and F ederal - aid primary highways , pursuant to

Chapter 479, Florida Statutes, and Chapter 14 - 10, Florida

Administrative Code.

43 . Section 479.111, Florida Statutes, provides that only

signs in commercial - zoned and industrial - zoned areas or

commercial - unzoned and industrial - unzoned areas may be permitted

along the intersta te and F ederal - aid primary highway system.

(See Stipulated Law Paragraph 3.)

44 . Section 479.01 (3), Florida Statu t es, defines

“commercial or industrial zone” as a parcel of land designated

for commercial or industrial use under both the future land use

map of the comprehensive plan and the land use development

regulations. If a parcel is located in an area designated for

multiple uses o n the future land use map of a comprehensive plan

and the land development regulations do not clearly designate

that pa rcel for a specific use, the area will be considered an

unzoned commercial or industrial area if it meets the criteria

of Section 479.01(23). (See Stipulated Law Paragraph 4.)

4 5 . Section 479.01(23), Florida Statutes, defines “unzoned

commercial or indust rial area” as 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 development reg ulations, in which three or more

separate and distinct conforming industrial or commercial

activities are located within 1600 feet of each other. At least

one of the businesses must be on the same side of the highway

and within 800 feet of the sign locati on and all businesses must

be within 660 feet from the nearest edge of the right - of - way.

(See Stipulated Law Paragraph 5.)

46 . FDOT denied the application(s) herein on the basis of

tw o statutes, Sections 479.111(2), “location not permitted under

land use designation of site,” and 479.01(23), "location does

not qualify as unzo ned commercial/industrial area." The

statutes cited in FDOT ’s denial provide specifically as follows:

479.111 Specified signs allowed within

controlled portions of the interstate and

federal aid primary highway system. - Only

the following signs shall be allowed within

controlled portions of the interstate

highway system as set forth in 479.11(1) and

(2):

* * *

(2) Signs in commercial - zoned and

industrial - zoned areas or commercial - unzoned

and industrial - unzoned areas and within 660

feet of the nearest edge of the right - of -

way, subject to the requirements set forth

in the agreement between the state and the

United States Department of Transportation.

479.01 Definitions - As used in this

chapter, the term

(23) "Unzoned commercial or industrial

area" m e ans 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 development

regulations, in which three or more separate

and distinct conforming industrial or

commercial activities are located.

* * *

(b) Certain activities, including, but not

limited to, the followin g, may not be so

recognized as commercial or industrial

activities :

* * *

6. Activities conducted in a building

principally used as a residence.

47 . In its Proposed Recommended Order, Petitioner submits

that under Section 479.01(3), FDOT may onl y determine the future

land use map classifications in general , and whether the current

land development regulations “clearly designate” that parcel for

a specific use; that the statu t es impose no requirement for FDOT

to make a current land use determinati on, unless there is a

specific designation in the current land development regulations

restricting the property to a specific use inconsistent with

commercial usage; that using the property appraiser’s records

constituted an unadopted rule , and that the co ncept of homestead

was mis - applied anyway because a homestead exemption does not

preclude a business or commercial activity from operating

outside a municipality ; and that a n equitable estoppel applies

herein because the I nstruction for the permit applicat ion was

misleading . In making these arguments, Petitioner relies

heavily on the recent case of Clear Channel Outdoor - Atlantic

Coast Division v. Department of Transportation , DOAH Case No.

06 - 2233 (RO: January 3, 2007; FO: February 14, 2007).

48 . In Cle ar Channel , the Administrative Law Judge (ALJ)

found, on the testimony of a zoning official and an expert

planner, that each sign site in that case was located on a

parcel designated for commercial or industrial use under both

the future land use map of th e city’s comprehensive plan and the

city’s land use development regulations (zoning) which had been

adopted pursuant to Chapter 163. Therein, the future land use

map and the zoning both declared the parcels as “utility.” The

applicable comprehensive plan designated the parcels as

“industrial.” The local governmental entity’s land use element

and land development reg ulations met the definition of

" industrial uses” in Florida Administrative Code Rule 9J - 5.003,

of the Department of Community Affairs, which agency supervises

land use planning throughout the state. ( See , Chapter 163,

Florida Statutes, with regard to comprehensive planning.) The

industrial u ses authorized under the c ity’s future land use map

and its land development regulations were primary p ermitted

uses, not incidental to other primary uses or permitted only by

variance or special exception. They were specially permitted

under the plan/map and the zoning. In the face of conformity of

the parcel to all concepts of “commercial or industrial”

designations, the FDOT sign administrator processing the sign

applications in the Clear Channel case testified that in every

sign application review, he applied his personal layman's

definitions of what type of development or zoning constituted

“commercia l” and/or “industrial ” . U nder those circumstances,

the ALJ concluded that the administrator’s interpretation of

Section 479.01 (3), Florida Statutes, which applied an everyday

“layman’s” or “common” understanding to the statutory language

“designated for commercial or industrial use” constituted an

“unadopted rule” which was inconsistent with the express

language of the statute ; inconsistent with the definition of

“commercial or industrial zones” in 23 C.F.R. Section 750.703

(a) ; and inconsistent with the Federal acceptance of State

zoning reflected in 23 C.F.R . Section 750.708, and the layman's

interpretation operated in defiance of the mandate of the

Federal regulations. The Recommended Order in Clear Channel was

adopted in toto by FDOT, and the sign per mits were issued.

49 . In Clear Channel , it was shown that by their nature,

by their use, and by their compatibility issues, “ utilities ”

were listed in the heavy commercial and industrial type

categories of both the zoning and the land use plan of the loc al

entity . The scenario in Clear Channel is unrelated to the fac ts

herein. Therefore, it is not a precedent for this case.

50 . This case was presented at hearing as a challenge to

FDOT’s decision not to apply a use test to Petitioner’s sign

permit a pplication. Petitioner claim ed for the first time in

its Proposed Recommended Order that FDOT’s use of the Okaloosa

County Property A ppraiser’s homestead exemption records during

its sign permitting review and/ or FDOT’s us e of a layman’s

definition of “co mmercial” or “commercial zone” constitutes an

unadopted rule. This argument fails on several points . First,

it is clear that the time frames and FDOT administrators are not

identical in both cases . I n the present case, there is no

evidence that Mr. Stri ckland resorts to property appraisers ’

records in every case or that he has appl ied his own lay

definition of “commercial” in this case or in any other

situation. Therefore, there is no “rule , ” as defined by Section

120.5 2 ( 15 ), Florida Statutes, and, of c ourse, Clear Channel’s

findings of fact cannot carry over in any sense to the present

de novo proceeding . 1/ Finally, there was no independent petition

alleging an unadopted rule and nothing in the Joint Pre - hearing

Stipulation to alert FDOT that Petitione r was claiming that an

unadopted rule existed. Therefore, FDOT had no opportunity to

prove - up any such position or to otherwise defend against such

an allegation in the hearing. The issue of an unadopted rule

was never properly presented to this forum . See , §

120.57(1)(e) , Fla. Stat .

51. Petitioner’s suggestion that the homestead exemption

for the parcel was misunderstood by Mr. Strickland is equally

unavailing because neither the homestead exemption statute nor

the several cases that interpret whether or not a tax payer may

take/be granted such an exemption for real property tax

purposes , affects whether or not FDOT can enforce its federal

agreement and Chapter 479 , with rega rd to signs on state roads

and F ederal primary - aid highways.

5 2 . Neither does equitable estoppel lie against FDOT in

this case. Admittedly , FDOT’s Instruction ’s attempt to

paraphrase or simplify Subsections 479.01 (2), (3), and (23) and

Section 479.111, is confusing, at best, but Petitioner is not

entitled to a use test or a sign permit solely on that basis.

Instructional manuals , by their very nature , cannot supersede

State or Federal statutes or excuse the State Agency responsible

for enforcing seminal law from following that seminal law .

Moreover, t he required elements for an equitable estoppel are

not present in this case. T here has been no demonstration of

reliance on the Instruction to Petitioner’s detriment.

Petitioner’s application fee was refunded by FDOT , and

Petitioner’s lease arrangement with the land owner is contin gent

upon FDOT’s issuance of a permit. Petitioner is not

demonstrably “out of pocket.” Therefore, Petitioner has not

shown that its reliance on FDOT’s Instruction, instead of on the

controlling statutes and rules , accrued to Petitioner’s

detriment or tha t FDOT’s failure to issue the permits under the

circumstances would result in a serious injustice to Petitioner .

5 3 . Subsections 479.01 (2), (3), and (23) and Section

479.111, permit FDOT to do what it has done.

54. Section 479.01(3), Florida Statutes , provides:

(3) "Commercial or industrial zone" means a

parcel of land designated 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 land 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).

5 5 . Section 479.01(3) begins by defining “commercial or

industrial zone” as a parcel designated for commercial or

industrial use under both the future land use map and the land

use development regulations (current zoning). That is not the

case here, because the parcel herein is not designated for

commercial or industrial use on either the future land use map

or the current zoning. Thus, the parcel herein is not a

“commercial or industrial zon e . ”

5 6 . Next, Section 479.01 (3) specifies that if the parcel

is located in an area designated for multiple uses on the future

land use map and the land development regulations (zoning) do

not clearly designate that parcel for a specific use, the area

wil l be considered an “unzoned commercial or industrial area” if

it meets the criteria of Subsection 479.01 (23). The parcel

herein does not fit that definition of an “unzoned commercial or

industrial area,” either. Indeed , this parcel is in an area

designa ted for multiple uses on the future land use map: RMU,

rural mixed uses. Both Mr. Strickland and Mr. Durbin agree that

“rural mixed uses” contain residential and non - residential

uses, and that non - residential uses may include commercial uses.

However, M r. Strickland concluded that the current zoning (land

use regulations) clearly designated that parcel for the specific

use of “agriculture.” Since “agriculture” can include

residential and non - residential uses, he also verified that the

parcel and one of the three nearby businesses were currently in

use as residential property. Therefore, it is not necessary to

follow Petitioner’s interpretive stream to reflect upon the

question of “ I f this parcel were located in an area designated

for multiple uses on th e future land use map and the land

development regulations did not clearly designate that parcel

for a specific use, would the parcel meet the criteria of

subsection (23)? ”

5 7 . Finally, a ssuming, arguendo , but not ruling, that a

use test were required to be performed using the three nearby

commercial businesses submitted by Petitioner, the evidence

showed that at least one of th ose businesses (Plantation Farms

Pet Grooming) did not comply with Subsection 479.01 (23) (b) 6 . ,

due to its homestead/residentia l status.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that a final order be entered ratifying the

Octo ber 18 , 2005, denial of sign application.

DONE AND ENTERED this 4th day of April , 200 7 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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

Division of Administrative Hearings

this 4th day of April , 200 7 .

ENDNOTE

1/ Petitioner’s Proposed Recommended Order asks that the

undersigned adopt Finding of Fact 15 from the Recommended Order

in Clear Channel Outdoor, Atlantic Coast Division, v. Dept. of

Transportation , (RO: January 3, 2007; adopted in toto by FO:

February 14, 2007), based upon evidence in that case. The

undersigned declines to do so , because all principa ls of justice

demand that each de novo case before the Division be bounded by

its own evidence. Moreover, the denial of a sign permit in that

case occurred December 2, 2003 , in a different timeframe, and by

a different FDOT agent , using a different and "p ersonal" test . .

COPIES FURNISHED:

James E. Moore, Esquire

The Moore Law Firm

102 Bayshore Drive

Post Office Box 746

Niceville, Florida 32588 - 0746

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

James C. Myers, Clerk of the Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Alexis M. Yarbrough, General Counsel

Departme nt of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Stephanie Kopelousos, Int erim Secretary

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, F lorida 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 Order should be filed with the agency that

will i ssue the final order in this case.