07-000801 Lamar Advertising Of Ft. Walton Beach vs. Department Of Transportation Status: Closed Recommended Order on Thursday, December 13, 2007.

Summary: The evidence showed that proposed site was an unzoned commercial or industrial site since construction company actively used site for storage of materials and machine repairs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING OF )

FT. WALTON BEACH , )

)

Petitioner , )

)

vs. ) Case No. 07 - 0801

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMEND ED ORDER

A formal hearing was conducted in this case on June 6,

2007, in Fort Walton Beach, Florida, before Diane Cleavinger,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James E. Moore, Esquire

Post Office Box 1622

Crestview, Florida 32536

For Respondent: David Littlejohn, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

The issue in this ca se is whether Petitioner is entitled to

an outdoor advertising sign permit to be located in an unzoned

commercial /industrial area and whether the sign site qualified

as an unzoned commercial/industrial area.

PRELIMINARY STATEMENT

On November 13, 2006, Petitioner, Lamar Advertising of Fort

Walton Beach, filed two applications for outdoor adverti si ng

sign site per mits wi th Respondent, the Florida Department of

Transportation (Department). The applications sought permits

for a one - site location for a two - faced outdoor advertising sign

located on US - 331, Walton Count y , Florida . By notice dated

November 29, 2006, th e Department denied the applications.

On January 30, 2007, Lamar filed an Amended Request for an

Administrative Hearing contesting the agency’s decisions and

requesting a formal hearing. The matter was referred to the

Div ision of Administrative Heari ng s .

At the hearing, Lamar presented the testimony of three

witnesses : Chad Pickens, Lease Manager, Lamar Advertising of

Fort Walton Beach ; Billy Wayne Strickland, Florida Department of

Transportation Outdoor Advertising Senior Agent ; and Larry Wayne

Adkinson, Vice President of North Florida Development, Inc.

Petitioner also offered eight exhibits into evidence. The

Respondent presented the testimony of one witness, Billy Wayne

Strickland, and offered seven exhibits into evidence.

After the he aring, Petitioner and Respondent filed Proposed

Recommended Orders on August 27, 2007. Petitioner also filed a

Motion to Re - open and Request For Judicial Notice on August 25,

2007. The Motion to Re - open the record was granted. On

Octobe r 11 , 2007 , a te lephone hearing was held so that

Petitioner could submit additional evidence. Official

recognition was taken of the Department’s dismissal of a Notice

of Violation issued to North Florida Development, Inc. ,

regarding an unpermitted sign on the property in volved in

Petitioner’s applications.

FINDINGS OF FACT

1. Lamar is in the business of erecting, operating and

maint aining outdoor advertising signs in Northwest Florida.

2. The proposed sign’s location was in Walton County along

US Highway 331, .1 mile s outh of Bay Grove Road , a collector

road . U.S. Highway 331 is a federal aid primary highway and

therefore , a state permit is required for signs placed along its

path .

3. According to a Walton County zoning plan , the proposed

sign’s location was in an area zoned Rural Village on both the

Future Land Use Map and Land Development Regulations. The June

2006 version of the Walton County Land Development Code

provides:

F. Rural Village (RV): This district is a

mixed use district which permits

p redominately residential development up to

a maximum of two units per acre.

(i) Residential uses shall account for

approximately 95 percent of the total land

area within any area designated on the FLUM

for this District. The remaining area may

be util ized for related and compatible

commercial uses.

(ii) Commercial uses may occupy up to five

percent of the total land area designated on

the FLUM for this District.

(iii) Commercial land uses shall be limited

to collector and arterial road

intersec tions, intersections of subdivision

collectors and arterial or collector road,

and areas that are specifically designated

Commercial on the FLUM.

(iv) Not more than 15 percent of the total

frontage on both sides of a collector or

arterial road shall be o ccupied by

commercial uses with in this district.

The Walton County Land Development Code also defined general

commercial activity as including inventory storage.

4 . The proposed sign ’s location met the requirements for

commerci al use under the RV designation. Walton County

certified to the Department that the designated parcel for the

proposed outdoor advertising sign was Rural Village and that the

primary use of the area under the current comprehensive plan was

agriculture, general agriculture, r esidential, civic use s, and

residential subdivision. Walton County also confirmed that the

proposed outdoor advertising sign would be in compliance with

all duly adopted local ordinances and would be issued the

necessary County permit for such sign .

5 . The Walton County Property Appraiser’s website listed

the usage of the proposed outdoor advertising sign location as a

“service station.” The service station building was still on

the property, but had not been used as such for a number of

years.

6 . Billy Wayne Strickland, the state outdoor advertisin g

administrator of the Department, process ed the outdoor

advertising permit ap plications submitted by Lamar.

Mr. Strickland determined after a review of La mar’s application s

that the site, being des ign ated as Rural V illage with mixed uses

allowed, met the need for evaluation under the use test for

unzoned commercial or industrial areas contained in Chapter 479,

Florida Statutes .

7 . The use test is set f orth in Florida Statute s 479.02.

Under the test, the Department examines a proposed sign’s

location under the applicable current land use designation and

future land use de signation to determine if the outdoor

advertising site meets the use criteria set forth in the statute

for unzoned commerci al and industrial areas . The use criteria

for such unzoned property require that three commercial or

industrial activities be located within 1600 feet of each other ,

with one of those activit ies located on the same side of the

road and within 800 feet of the proposed sign ’s location.

D istances are measured from building to building. Additionally,

the commercial or industrial activity must be visible from the

highway.

8 . Mr. Strickland visited the property in order to

determine if the proposed sign location met the requirements of

the use test. He observed that the proposed sign’s site holds

an abandoned - looking gas station and a house with a large fenced

in area. Leaking fuel tanks made it unlikely the service

station would be restored. There wer e several small, boarded - up,

“fishing style cabins ” associated with the fenced property. The

fenced area had a sign posted for North Florida Development,

Inc., a construction company. There was a number for the

company listed on the sign. On a tree to t he right of the fence

was a sign that read “Private Road Keep Out.” In general , the

area behind the fence appeared to be used for storage of

building materials and equipment such as trucks and trailers .

Except for the area behind the fence, the North Flo rida

Development property was clearly visible from the highway.

9. Mr. Strickland called the phone number on the sign and

was informed that North Flori da Development, Inc. , that he was

calling , was in Miramar Beach, Florida , and that North Florida

Development was storing equipment and trucks at the U.S. Highway

331 location for a job they were doing in Destin.

10. There was no one present at the house or the adjacent

buildings. The North Florida Development buildings and fenced

area were with in 800 feet of the proposed sign ’ s location and

were on the same side of the road as the proposed sign’s

location. Because of the lack of activity, Mr. Strickland

concluded that the North Florida Development property was not a

commercial activity which wa s visible from the highway. On the

opposite side of the Highway, Mr. Strickland observe d two

businesses within a 1600 - foo t zone that met the criteria of the

use test.

11 . Additio n a lly, while at the site, Mr. Strickland issued

a Notice of Violation f or the on - premises sign of North Florida

Development. The Notice required the sign to be removed.

Later, after the hearing in this matter, this action was

dismissed by the Department.

1 2 . On November 29, 2006, the Department issued a written

deni al of the outdoor advertising sign site permit applications

for the following reasons: (1) the sign site was not permitted

under the local land use designation of site per Section

479.111(2), Florida Statutes, and (2) the sign site did not

qualify as an u nzoned commercial/industrial are a per Section

479.01(23) , Florida Statutes.

1 3 . On the morning of April 5, 2007, Mr. Strickland, a gain

visited the proposed sign’s site. He observed ess entially the

same things he observed during his first visit to th e location,

except the large North Florida Development sign that had been on

the entrance to the fenced area had been removed.

1 4 . Andrew White , a regional inspe ctor with the

Department, inspected the North Florida Development site on

May 17, 2007, and photographed the area. The sign for North

Florida Development had been removed, but the keep - out signs

were still in place. Photographs taken from the street revealed

a partial view of a storage trailer through the open fence.

15 . On the mornin g of June 6, 2007, just prior to the

hearing, Mr. Strickland again visited the proposed sign ’ s

location and observed no activity at the location. He could

only see a trailer partially visible beyond the privacy fence.

16 . Larry Wayne Adkinson, vice president of North Florida

Development and a general contractor licensed in Mississippi,

lives and works on the property of the proposed sign’s location.

Mr. Adkinson testified that the property total ed five and a - half

or six acres and consist ed of his hom e , his office , the service

station and five fishing cabins. He and his business have been

at t his location for at least 12 years. Work has been delayed

on repairing the service station based, in part, upon the fact

that the state was seeking to condemn a portion of the property

where the service station was located for the expansion of U.S.

H ighway 331.

17 . Mr. Adkinson uses the property as an inventory site,

storing construction materials, heavy equipment, landscaping

materials, and other bulk ma terial related to his business. The

site contained three semi - tractor trailers that were utilized to

store construction materials , including doors, windows, and

heavy equipment and equipment and materials for a landscape

business owned by Mr. Adkinson. T he landscape business stored

tractor - trailers, small - equipment trailers, plants , brick

pavers, scaffolding and rock molds. The site’s storage of

inventory and business activity was very visible to people who

lived in the neighborhood around the North Flori da Development

property. The visibility was such that , in 2006 , the neighbors

complained about the view to the County. The C ounty, in turn,

asked Mr. Adkinson to place a fence around the area to block the

view of people passing through the area. Mr. Adk inson complied

with the County’s request and built the priva cy fence that

Mr. Strickland observed. Mr. Adkinson also placed the company’s

business sign on the fence to identify the property as North

Florida Development’s business property.

18 . Mo st of the loading and unloading of material and

equipment occurs in the early morning and evening hours. At

those times, there is considerable activity at the site with

trucks and equipment entering and leaving the property.

Mr. Adkinson’s testimony was confirmed by the testimony of Chad

Pickens, who routinely drives by the site during those hours.

Mr. Strickland never visited the property during those busy

hours, and therefore , did not observe the business activity

associated with the site.

1 9 . Mr. Adkinson uses two of the fishing cabins as machine

shops for his company’s equipment and tools . The shops contain

drill presses, welding and repair equipment. Entry is gain ed

through the rear doors of the cabins . He left the front of the

cabins boar ded up to prevent theft and storm damage.

20 . Mr. Adkinson also receives business mail at the U.S.

Highway 331 location and has employees and jo b applicants report

to that location . Clearly, the North Florida Development

property is a viable and on - going business that conducts one of

its business activities on the property on which the proposed

sign is to be located. The activity is visible from the

highway, although such activity ebbs and flows through the day.

The property , therefore , meets the l and use t est requirements of

Florida S tatutes , and the Petitioner’s applications should be

granted.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . §§ 12 0.569 and 120.57, Fla. Stat.

22 . The Department of Transportation has the authority to

regulate outdoor advertising and issue permits for signs located

along interstate and federal aid primary highways pursuant to

Chapter 479, Florida Statutes , and F lorida Administrative Code

Rule 14 - 10.

23 . Lamar’s outdoor advertising sign permit applications

are governed by the provisions of Chapter 479, Florida Statutes ,

and Florida Administrative Code Rule 14 - 10.

24 . Chapter 479.01(23), Florida Statute s , provides:

“Unzoned commercial or industrial area”

means a parcel of land design at ed 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

i ndustrial uses under the land development

regulations, in which three or more separate

and distinct conforming industrial or

commercial uses 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 locations;

2. The commercial or industrial activities

must be within 660 feet from the nearest

edge of the right - of - way; and

3. The commercial indus trial activities

must be within 1,600 feet of each other.

Distances specified in this paragraph must be measure d from the

nearest outer edge of the primary building complex when the

individual units of the complex are connected by covered

walkways.

(b) C ertain 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 acti vities,

including, but not limited to, wayside fresh

produce stands.

ansient 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.

25 . Section 479.111 , Florida Statutes, entitled “Specified

signs allowed within controlled portions of the interstate and

federal - aid primary highw ay system” provides:

Only the following signs shall be allowed

within controlled portions of the interstate

highway system and the federal - aid primary

highway system as set fort h in s. 479.11 (1)

and (2):

(1) Directional or other official signs and

noti ces which conform to 23 C.F.R. ss.

750.151 - 750.155.

(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 in the

agreement between the state and the United

States Department of Transportation.

26 . In short, i f a proposed outdoor advertising sign

location is not situated in an area specifically zoned

commercial or industrial, Section 479.01(3), Florida Statutes,

provides a two - pronged analysis to evaluate the proposed outdoor

advertising sign ’s location. First, the area must be designated

for multiple uses on the future land use map of the

comprehensive plan , and ( 2) the land development regulations

mu st not clearly designate the parcel for a specific use. If

the property meets these criteria, the area will be considered

an “unzoned commercial or industrial are a ” which must meet the

criteria of Section 479.01(23), Florida Statutes.

27 . As the par ty seeking a S tate sign permit, Lamar bears

the burden of proving entitlement to a permit by a preponderance

of the evidence. Fla. Dept. of Transportation v. J.W. C. Co.,

Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

28 . The Department stipulated th at the proposed site for

Lamar’s outdoor advertisin g sign is located in a multiple - use

area for zoning and future land use. Further, pursuant to the

future land use map of the Walton County Land Development Code,

the permitted uses include commercial uses . The parcel was not

“specifically designated” for a specific use under the current

land development regulations. Walton County’s zoning

classification of Rural Village authori zed five percent

commercial use. Such classification was not a commercial zon ing

designation. The land development regulations allowed the

parcel to be developed for either residential or commercial use.

The Department, therefore, properly considered the Rural Village

designation as mixed use and examined it under Section

479.01( 23), Florida Statute s , to determine if the area could be

considered an unzoned commercial or unzoned industrial area

under the use test.

29 . In this case, Lamar’s s ite met the two - prong test for

S ubsections 479.01 (3) and (23), Florida Statutes. The evidence

demonstrated that three businesses were within the proper

proximity to the proposed site to meet the spa cing configuration

required in S ubsection 479.01( 23)(a), Florida Statutes. At

least one of those businesses, North Florida Development, is

wit hin 800 feet and on the same side of the highway as the

proposed location of the sign.

30 . It was an error for the Department to determine that

inventory storage by North Florida Development was not a

commercial activity. The Department’s position w as based on the

fact that the property was neither open to the public, nor

providing a service to the public. Howe ver, this definition of

commercial or industrial activity is not supported by the

statute. Indeed , the statute does not mention that a busin ess

must be open to the public or providing a service to the public

to qualify under this statute. If that were the case, large

company distribution centers, such as those Wal - mart maintains,

would not qualify as industrial or commercial activities.

Clea rly such distribution centers constitute commercial or

industrial activities.

31 . In Clear Channel Outdoor - Atlantic Coast Division v.

Department of Transportation , DOAH Case No. 06 - 2233,

RO: January 3, 2007 , the administrative law judge address ed t he

issue of interpretation of com mercial or industrial activity :

According to Garner, Respondent interprets

the term “commercial or industrial use”

found in Subsection 479.01(3), Florida

Statutes, as those words are “commonly

understood,” rather than as ap plied in land

development regulations. Garner uses the

layman’s everyday interpretation of the term

“industrial” when applying the term.

Respondent has a uniform interpretation of

Subsection 479.01(3), Florida Statutes,

under which it utilizes an everyda y lay

definition of commercial or industrial zone,

rather than a technical planning and zoning

approach. Garner’s opinion that the sign

sites were not designated as industrial uses

was based on this uniform interpretation.

That interpretation is not refl ected in

Florida Administrative Code Rule 14 - 10.

In this case, t he definition of general commercial activity

includes inventory storage in the Walton County Land Developm ent

Code. The activity was visible enough that neighbors complained

and a fence wa s erected. Additionally, a business sign was

placed on the property to identify the property as business

property. Commercial activity that supports the company’s

business takes place on the property and , therefore , qualifies

as a commercial or industria l activity under the statute .

32 . In Food’N Fun, Inc. v. Department of Transportation ,

493 So. 2d 23 (Fla. 1st DCA 1986) , the court addressed the issue

of visibility from the highway , thus :

Food’N Fun applied for the permits involved

in Case No. BK - 1 35 in 1979, relying for the

required commercial activity on a welding

business, which was carried on in a tin shed

which it was undisputed could be seen from

the right - of - way, Interstate 10 in Jackson

County. The permits in BK - 136 were applied

for in 1980 , in reliance on a dairy supply

business, located in a building which could

also be seen from the highway. Finally, the

permits in BK - 137 were applied for in 1978,

relying on a sausage - making business,

conducted in a block building which could be

seen fro m the highway.

In all of these cases, the inspector “field

approved” the permits following on - site

inspections. They were then approved by the

District Administrator and forwarded to

Tallahassee for issuance. Food’N Fun

thereafter was permitted to renew all of

these permits annually until October, 1984,

at which time it received “notices of

violation” stating that the signs were not

in a “commercial or industrial area.”

The allegation was expanded upon at hearing

on the notices requested by Food’N Fun . DOT

stated as to all of these permits that the

crux of the alleged violations was that,

even though the buildings wherein the

various activities were being conducted

could be seen from the highway, there was no

indication to highway traffic that any

com mercial activity was in progress, such as

a business sign, employees at work, cars in

a parking lot, etc . With regard to the

welding and dairy supply business, there was

also evidence that those businesses were no

longer in operation at the time of the

he aring.

Pursuant to Section 479.08(1), Florida

Statutes, “the department may . . . revoke

any permit issued by it . . . in any case

where it shall appear to the department that

the application for the permit contains

knowingly false or misleading informa tion or

that the permit has violated any of the

provisions of this chapter. . . .” Testimony

by DOT representatives at the violation

hearings indicates that the agency was

relying on the emphasized ground to revoke

Food’N Fun’s permits, claiming that based on

the invisibility from the highway of

commercial activity in progress, the

permittee had “violated the chapter,”

specifically Section 479.01(10) (activity

not visible from the main - traveled way), in

the placement of its signs.

The hearing officer issu ed his recommended

order finding that, regardless of the

initial approval of the applications, the

statutory prerequisites for the erection of

lawful sign were not present when the

applications were submitted in that the

activities relied on were not “visi ble from

the main - traveled way,” i.e. there was

“nothing to indicate to I - 10 traffic that a

. . . business was up there.” He rejected

the applicant’s argument that DOT was

stopped by its approval from revoking the

permits because no factual representation s

had been made that were contrary to a later

asserted position. He recommended that the

permits be revoked and the signs removed.

The recommended order was adopted by the

agency as its final order revoking the

permits.

An administrative agency, empow ered to

revoke a permit for reasons specified in a

statute, may not revoke such permit for any

cause not clearly within the ambit of its

statutory authority, as statutes authorizing

revocation must be strictly construed. Rush

v. Department of Professional Regulation ,

448 So. 2d 26 (Fla. 1st DCA 1984). In this

case, DOT relies on that portion of Section

479.08 which authorizes revocation based on

violation of Chapter 479 by the permittee,

in this case by placing sign in what DOT

later determined to be a no n - commercial

zone.

The requirement of the privacy fence and the erection of the

business sign are sufficient indicia of visible commercial

activity in and of themselves to establish a prima facie case of

visibility. Additionally, there is considerable co mmercial or

industrial activity in the morning and evening hours at the

property. The buildings are visible from the highway. Clearly,

Lamar’s proposed outdoor advertising sign is located in an

unzoned commercial area and meets the use test of the statut e .

The proposed applications should , therefore , be granted .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is

RECOMMENDED:

That the Florida Department of Transportation enter a Final

Order granting the ap plications for outdoor advertising sign

permits filed by Lamar Advertising of Fort Walton Beach.

DONE AND ENTERED this 13th day of December , 2007 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative L aw 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 13th day of December , 2007 .

COMPLETE COPIES FURNISHED :

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

James E. Moore, Esquire

Post Office B ox 1622

Crestview, Florida 32536

David M. Littlejohn, Esquire

Department of Transportation

Haydon Burns Building , Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

James C. Meyer s

Clerk of Agency Proceedings

Department of Transportati on

Haydon Burns Building , Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building , Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Alexi s M. Yarbrough, General Counsel

Haydon Burns Building , Mail Station 58

605 Suwannee Street

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 Order should be filed with the agency that

will issue the Final Order in this case.