08-002778 Procter Productions, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, April 8, 2009.

Summary: Respondent should grant a permit for the sign to be located on property that is commercial-zoned within the meaning of Subsection 479.111(2), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROCTER PRODUCTIONS, INC., )

)

Petitioner, )

)

vs. ) Case No. 08-2778

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on November 20, 2008, in Tampa, Florida, and on

February 24, 2009, by video teleconference.

APPEARANCES

For Petitioner: Stephen Tabano, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O'Neill & Mullis, P.A.

101 East Kennedy Boulevard, Suite 2700

Post Office Box 1102

Tampa, Florida 33601-1102

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue is whether Respondent should deny Petitioner's

application for a sign permit, because the proposed site is not

zoned commercial and, therefore, fails the requirement for

commercial zoning in Subsection 479.111(2), Florida Statutes

(2007), 1 and the location does not qualify as an un-zoned

commercial/industrial area within the meaning of

Subsection 479.01(23).

PRELIMINARY STATEMENT

On March 31, 2008, Respondent issued a Notice of Denied

Application. Petitioner timely requested an administrative

hearing, and Respondent referred the request to DOAH to conduct

the hearing.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted 12 exhibits for admission into evidence.

Respondent submitted 10 exhibits, called one witness live, and

attempted to present the telephonic testimony of a second

witness. Due to technical problems that prevented the

telephonic testimony, the hearing was reconvened on February 24,

2009, pursuant to the agreement of the parties, to present the

live testimony of Respondent's second witness.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the two-volume Transcript of the

hearing filed with DOAH on February 24 and March 9, 2009. The

parties timely filed their respective Proposed Recommended

Orders on March 19, 2009.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

regulating outdoor signs at the proposed site. The proposed

site is located at 2505 West Bella Vista Street, Lakeland,

Florida. Petitioner is a Florida corporation engaged in the

business of full-service advertising in the state, including

road-side signs or billboards.

2. On March 21, 2008, Petitioner submitted an application

for an outdoor advertising permit for two structures with four

sign faces identified in the record by application numbers

57095, 57096, 57097, and 57098. On March 31, 2008, Respondent

issued a Notice of Denied Application (the Notice). The Notice

notified Petitioner of proposed agency action to deny the permit

application.

3. The Notice states two grounds for the proposed denial.

The first ground alleges the “Location is not permittable under

land use designations of site [sic]” within the meaning of

Subsection 479.111(2). The second ground alleges the “Location

does not qualify as unzoned commercial/industrial area” within

the meaning of Subsection 479.01(23).

4. Section 479.111 applies to signs located within the

interstate highway system and the federal-aid primary highway

system (the regulated highway system). The proposed site is

located within the regulated highway system adjacent to

Interstate 4 in Polk County, Florida.

5. Subsection 479.111(2), in relevant part, authorizes

signs within the regulated highway system which satisfy one of

two disjunctive requirements. A sign must be located in either

a “commercial-zoned” area or must be located in a “commercial-

unzoned” area and satisfy a statutorily required use test. 2

6. The term “commercial-unzoned” is defined in

Subsection 479.01(23). However, a determination of whether the

proposed site satisfies the statutory use test for a

“commercial-unzoned” area is not necessary if the proposed site

is found to be in a “commercial-zoned” area. The Legislature

has not defined the term “commercial-zoned” area, and Respondent

has cited no rule that defines the term.

7. The issue of whether the proposed site is in a

“commercial-zoned” area is an issue of fact and is not within

the substantive expertise of Respondent. Even if the definition

were within the substantive expertise of Respondent, Respondent

explicated no reasons in the evidentiary record for deference to

agency expertise.

8. The evidentiary record explicates reasons for not

deferring to purported agency expertise in this case.

Respondent previously approved a sign permit from the same

applicant on the same property. Petitioner spent $23,000.00 to

move the previously approved sign so that both the proposed and

existing signs could be permitted on the same property.

9. It is undisputed that the proposed site is located on

property zoned as Leisure Recreational in the Polk County

Comprehensive Plan. It is also undisputed that Leisure

Recreational “allows for multiple uses including commercial.” 3

However, Respondent interprets the Leisure Recreational

designation to be an “unzoned-commercial” area, because “The

subject parcel is not explicitly zoned commercial. . . .” 4

10. Respondent apparently has adopted a titular test for

determining whether the proposed site is “commercial-zoned.” If

the zoning designation does not bear the label “commercial,”

Respondent asserts it is not “commercial-zoned” within the

meaning of Subsection 479.111(2). The fact-finder rejects that

assertion and applies a functional test to determine whether the

local zoning label permits commercial use.

11. A preponderance of the evidence supports a finding

that the local zoning label of Leisure Recreational means the

proposed site is “commercial-zoned” within the meaning of

Subsection 479.111(2). Credible and persuasive expert testimony

shows that the Leisure Recreational zoning designation

specifically designates the proposed site for commercial uses,

within the meaning of Subsection 479.01(23), 5 including retail

structures up to 20,000 square feet, bars, taverns, marinas, and

fishing camps. The commercial uses allowed under the Leisure

Recreational zoning designation are not discretionary with

county planning staff but are permitted as a matter of right.

12. Much of the dispute and evidence in this proceeding

focused on two use tests that Respondent performed in accordance

with Subsections 479.01(23)(a) and (b). However, the statutory

use test applies only to site locations that are “commercial-

unzoned.” Findings of fact pertaining to the accuracy of the

use tests utilized by Respondent are unnecessary because they

are inapposite to “commercial-zoned” property such as the

proposed site.

CONCLUSIONS OF LAW

13. DOAH 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 (2008). DOAH

provided the parties with adequate notice of the final hearing.

14. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent should grant the application for a sign permit.

Florida Department of Transportation v. J.W.C. Company , 396 So.

2d 778 (Fla. 1st DCA 1981).

15. Petitioner satisfied its burden of proof. Petitioner

showed by a preponderance of the evidence that the proposed

site is “commercial-zoned” within the meaning of

Subsection 479.111(2).

16. Application of the use test to a proposed site that is

an invalid exercise of delegated legislative authority within

the meaning of Subsection 120.52(8), because it would go beyond

the powers delegated by the Legislature and violate the

separation of powers act. 6 Respondent has no statutory authority

to perform a use test if, as in this case, the proposed site is

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order granting

the application for a sign permit.

DONE AND ENTERED this 8th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of April, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007), unless stated otherwise.

2/ Signs in commercial-unzoned areas must also be within 660

feet of the nearest edge of the right-of-way. State permitting

is also subject to the requirements set forth in the agreement

between the state and the United States Department of

Transportation. Neither the 660-foot proximity test nor the

state-federal contract requirement is at issue in this

proceeding. The statute also authorizes signs in areas zoned as

industrial, but the industrial zoning provisions are not at

issue in this proceeding.

3/ See Proposed Recommended Order of Respondent, Department of

Transportation , at 3, para. 4.

4/ See Proposed Recommended Order of Respondent, Department of

Transportation , at 7, para. 9.

5/ Subsection 479.01(23), in relevant part, defines the term

“unzoned commercial” area as one that is “ not specifically

designated for commercial uses.” (Emphasis supplied)

6/ FLA. CONST. art. II, § 3; see also Crossings at Fleming

Island Community Development District v. Echeverri , 991 So. 2d

793 (Fla. 2008)(separation of powers act prohibits officer of

executive branch from refusing to enforce existing statute).

COPIES FURNISHED :

Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Stephen Tabano, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O’Neill & Mullis, P.A.

101 East Kennedy Boulevard, Suite 2700

Post Office Box 1102

Tampa, Florida 33601-1102

James C. Myers,

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

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.