Judges: DELPHENE C. STRICKLAND
Agency: Department of Transportation
Latest Update: Feb. 22, 1977
Summary: Whether the outdoor advertising signs of Respondent were in violation of Florida Statutes 479.07(1), sign erected without a state permit; Whether the subject signs were in violation of Florida Statutes 479.11(1), sign erected within 660 feet of the right of way of a federal aid highway; Whether subject signs are new and different signs inasmuch as they have new facings, are erected on new poles and are materially elevated from the location of previous signs. Whether subject signs are in violatio
Summary: Whether the outdoor advertising signs of Respondent were in violation of Florida Statutes 479.07(1), sign erected without a state permit; Whether the subject signs were in violation of Florida Statutes 479.11(1), sign erected within 660 feet of the right of way of a federal aid highway; Whether subject signs are new and different signs inasmuch as they have new facings, are erected on new poles and are materially elevated from the location of previous signs. Whether subject signs are in violation of the federal and state laws and should be removed.The signs are nonconforming and were materially altered so to make them illegal. Remove the signs.
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75-1922.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1922T
) STUCKEY'S OF EASTMAN, GEORGIA, )
)
Respondent. )
)
RECOMMENDED ORDER
After due notice, and following an assignment of this matter to the Division of Administrative Hearings, Department of Administration by the Petitioner under provisions of Section 120.57, Florida Statutes, this matter came on to be heard before Delphene C. Strickland, Hearing Officer, & Division of Administrative Hearings on the 3rd day of February, 1976, at the hour of 10:45 a.m. at the Volusia County Court House, DeLand, Florida.
APPEARANCES
For Petitioner: Philip S. Bennett, Esquire
Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
For Respondent: Benjamin F. Wren, III, Esquire
Post Office Box 329 DeLand, Florida 32720
ISSUES
Whether the outdoor advertising signs of Respondent were in violation of Florida Statutes 479.07(1), sign erected without a state permit;
Whether the subject signs were in violation of Florida Statutes 479.11(1), sign erected within 660 feet of the right of way of a federal aid highway;
Whether subject signs are new and different signs inasmuch as they have new facings, are erected on new poles and are materially elevated from the location of previous signs.
Whether subject signs are in violation of the federal and state laws and should be removed.
FINDINGS OF FACT
Petitioner, Department of Transportation, issued to the Respondent, Stuckey's of Eastman, Georgia, notices of alleged violations of Chapter 479 and
Section 335.13, Florida Statutes, on July 28, 1975 with respect to five (5) signs at five (5) different locations, to-wit: .14 miles south of Volusia County on Interstate Highway 95; .75 miles south of Volusia County on Interstate Highway 95; 1.58 miles south of Volusia County on Interstate Highway 95; and
3.51 miles south of Volusia County on Interstate Highway 95.
Pursuant to these notices, the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice.
Respondent is the owner of five (5) signs referred to in paragraph (1) of these findings
Five signs with similar copy were erected by the Respondent in May of 1971 at the approximate location of subject signs. The Respondent owned and maintained the five (5) signs from April of 1971 until April-June of 1975 when such signs were removed and the subject signs built.
Each of these signs is within 660 feet of the nearest edge of the right of way of an interstate highway system, but each of the signs have a permit attached, first issued in 1971 and reissued through 1974 inasmuch as the former signs were owned by Respondent and lawfully in existence on December 8, 1971, and became nonconforming on December 8, 1971, under Section 479.24(1), Florida Statutes.
Between April-June, 1975, the Respondent replaced the signs existing since 1971 to better advertise its products along 1-95, south of Volusia County, Florida. Said replacement signs are in the approximate location as the replaced signs and said replacement signs have the same size facing as the replaced signs. The replacement signs are on different poles, wood being substituted for metal and at a more elevated height (between 16 and 20 feet higher) than the replaced signs. The replacement subject signs are much more visible to the traveling public than the old signs because of the materially increased elevation.
The charge in the location of the subject signs, although only a short distance, the new facing materials, the replacement of metal poles with wooden poles and the decided increase in elevation make these different signs within the meaning of Chapter 479, F.S., and the federal regulations, thus, becoming new signs requiring permits rather than qualifying as nonconforming with the customary maintenance or repair of existing signs, allowed under Section 479.01(12), F.S., infra.
The owner of the signs was given written notice of the alleged violations and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
CONCLUSIONS OF LAW
The outdoor advertising signs of Respondent are in violation of Florida Statute 479.07(1), inasmuch as they are new signs erected without a state permit and are in violation of Section 479.11(1), F.S., a sign erected within 660 feet of the nearest right of way of a federal aid highway as well as in violation of Section 479.11(5), F.S., the 1975 enactment which prohibits the erection of any sign which can be seen from the federal aid highways. Respondent's signs are new and different signs having new facings, erected on new poles, and being
materially elevated from the previous sign heights, thus, subject signs are in violation of the state and federal laws and should be removed.
By way of explanation and clarification the following statutes, rules and regulations were used:
(a) Section 479.01(12), F.S.:
"'Erect' means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into or establish; but it shall not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign structure."
Under this statute Respondent has erected new signs. Respondent's signs are on new poles at a new height although within a few feet of the same location.
(b) Section 479.11(1), F.S.:
"Certain outdoor advertising prohibited. -- No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111, or within 15 feet of the outside boundary of any other federal or state highway or within 100 feet of any church,
school, cemetery, public park, public reservation, public playground, state or national forest, or railroad intersection outside the limits of any incorporated city or town."
Beyond 660 feet of the nearest edge of the right- of-way of all portions of the interstate system or the federal-aid primary systems outside of urban areas that is erected with the purpose of its
message being read from the main-traveled ways of
such system, unless it is of a class or type permitted in subsection 479.111(1) or subsections 479.16(1) or (3).
Respondent's signs violate this statute inasmuch they were constructed and erected within 660 feet of the nearest edge to the right-of-way of a portion of the interstate system and they were not within the exceptions of this statute.
Section 479.24, F.S.:
"Compensation for removal of signs; eminent domain; exceptions.--
Compensation shall be paid upon the removal of all signs lawfully in existence on December
8, 1971 or signs lawfully erected which later become nonconforming. Compensation for any
sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or
completing such a sign after December 8, 1971 shall be fully compensated by the method herein
provided.
Compensation shall be made pursuant to the state's eminent domain procedures, chapters
73 and 74.
No sign, display, or device shall be required to be removed under this section if the federal share of the just compensation to be paid upon removal of such sign, display, or device is not available to make such payment.
The department is authorized to use the power of eminent domain when necessary to carry out the provisions of this chapter.
It is presumed that any party erecting a sign after July 1, 1971, did so with the knowledge
of the existing federal legislation and the pendency of this legislation. The measure of damages on comdemnation of any such sign shall be limited to the replacement value of the materials used in construction of such signs.
Lawfully erected outdoor advertising signs, displays, or devices prohibited by subsection 479.11(2) shall be removed upon the payment of just compensation. Notwithstanding any other provisions of this chapter, compensation shall
be in the same manner and subject to the same limitations as for signs lawfully erected prior to July 1, 1971, within 660 feet of the nearest edge of the right-of-way."
Under this section Respondent's previous signs were nonconforming signs which means they were lawfully erected but became nonconforming to the law on December 8, 1971. Under Chapter 479, F.S., and the rules promulgated thereunder "nonconforming signs" are allowed to stand as long as they are maintained in good condition but nonconforming signs under the law lose the nonconforming status when such sign is enlarged, rebuilt, replaced, reerected, or altered in any manner except normal routine maintenance. See Procedure, State of Florida, Department of Transportation, No. 171-001, page 6, paragraph (12).
Section 479.01(15), F.S., defines maintain as ". . . to allow to exist." The previous signs were not "allowed to exist". They were replaced by new signs on new poles with a decided elevation and a minor change in location.
These signs are in violation of the agree- ment between the Governor of the State of Florida, Reubin O'D. Askew and the Federal Highway Administrator dated January 27, 1972, which was drawn "for the purpose of carrying out national policy relative to control of outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways and the Federal-Aid Primary System, as authorized by Chapter 479, F.S., and Title 23, Section 131, United States Code." Said agreement was ratified by the Florida Legis- lature by Senate Concurrent Resolution No.
657 and filed in the Office of the Secretary of State on March 2, 1972. The U.S. Depart- ment of Transportation Policy and Procedure Memorandum, Transmittal 304, PPM 90-6, page
4 states:
"c. Nonconforming Sign is one which was lawfully erected but which does not comply with the provisions of State law or State regulations passed at a later date or which later fails to comply with State law or State regulations due to changed conditions. An example of changed conditions would be a sign lawfully in existence in a commercial area which at a later date became noncommercial and thus required to be protected or a sign lawfully erected on a secondary highway later upgraded to a primary highway. Illegally erected or maintained signs are not nonconforming signs.
(5) The nonconforming sign may continue as long as
it is not changed. The sign may remain substantially the same as it was in existence on the effective date of the State law or regulations. Extension or enlargement of the sign is a change in the existing use. Replacement, rebuilding, or re-erecting is a change in the existing use."
The subject signs are nonconforming and violate the setback requirements of state and federal law.
Respondent's signs are subject to removal under the following statutes: Section 479.17, F.S.:
"violation a nuisance; abatement.--Any advertisement, advertising sign or advertising structure which is constructed, erected, operated, used, maintained, posted, or displayed in violation of this chapter is hereby declared to be a public and private nuisance and shall be forthwith removed, obliterated or abated by the department, and for the purpose its representatives may enter upon private property without incurring any liability therefore; provided, however, that if any outdoor advertising structure or outdoor advertising sign of the value of $100 or more hears thereon the name of the owner thereof, and said owner holds
an unexpired license issued under s. 479.05 the said owner shall be given written notice of the alleged violation, and shall have 30 days after the receipt thereof within which to show that the said advertisement, advertising sign or advertising structure does not violate the provisions of this chapter."
Section 479.10, F.S.:
"Removal.--All outdoor advertisements, advertising signs and advertising structures shall be removed by the permittee within 30 days after the date of the expiration or revocation of the permit for the same.
any permittee failing to remove any such advertisement, advertising sign or advertising structure within said
30 days shall be guilty of a misdemeanor of the second degree punishable as provided in s. 775.082 or
s. 775.083."
Section 479.20, F.S.:
"Duty of department.--The department shall enforce this law."
RECOMMENDATION
Remove subject signs if said signs have not been removed by the owner within ten (10) days after entry of the final order herein.
DONE and ORDERED this 28th day of May, 1976, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Benjamin F. Wren, III, Esquire
0. Box 329 Deland, Florida 32720
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1922T
) STUCKEY'S OF EASTMAN, GEORGIA, )
)
Respondent. )
)
SUPPLEMENTAL RECOMMENDED ORDER
The undersigned Hearing Officer held an Administrative Hearing under the provisions of Section 120.57, Florida Statutes, on February 3, 1976 at 10:45
in the Volusia County Courthouse, DeLand, Florida.
Thereafter, a Recommended Order was rendered pursuant to Section 120.57 Decisions which affect substantial interests and sent to the agency for final order under the provisions of Section 120.59, Florida Statutes, Orders.
The agency Petitioner Florida Department of Transportation rendered its Final Order adopting the Recommended Order finding it correct in both fact and law. The agency made no ruling upon each proposed Finding of Facts submitted by the Respondent inasmuch as under the section of the Statute 120.59 which the agency functions and makes its Final Orders, it has no rules requiring it to "include a ruling upon each proposed finding and brief statement of the grounds for denying the application or request."
Respondent Stuckey's of Eastman Georgia appealed the Final Order to the District Court of Appeal, 1st District, State of Florida, which filed its opinion December 9, 1976 vacating the Order and remanded it to the Petitioner agency for rulings on an issue in Respondent's proposed "Order" submitted to the Hearing Officer May 10, 1976 under the provisions of Section 120.57(4).
The District Court directed the agency to review its Order "after recommendations have been made by the Hearing Officer, on the proposed findings submitted by Stuckey's." It is under authority of this Court Order that this Supplemental Recommended Order is issued.
The main question at the Fact Finding Hearing was whether the five (5) signs that Respondent Stuckey's erected in April 1, May and June of 1975 were new signs. The Hearing Officer found as a matter of fact that the five (5) signs were new signs. As a matter of fact, it was found that each of the new signs were erected without obtaining a state permit. As a matter of fact, the Petitioner notified the Respondent that the new signs (the offending signs), were in violation of the state laws requiring a permit and further that each new sign was in violation of the state setback laws.
The Hearing Officer found as a matter of fact that each of the five (5) signs erected by Respondent in April of 1971 were torn down. The Respondent erroneously received a 1976 renewal permit for each of the signs that had been torn down and removed.
FINDINGS OF FACT
Upon review of the file and the transcript, the Hearing Officer makes the same Findings of Fact.
In further clarification and consistent with the Recommended Order, the following is included in this Supplemental Recommended Order:
No further hearing is necessary in the cause inasmuch as the question of estoppel which the Court finds was an issue the Department failed to rule on explicitly was fully argued at the hearing and was one of the centers of dispute as shown by the transcript. (See transcript page 14)
The facts of the cause are found as follows:
Respondent Stuckey's erected five (5) signs approximately fifteen
(15) to twenty (20) feet from the right-of-way along 1-95 in April of 1971 when Stuckey's opened a store in Titusville, Florida. Permits were acquired by Respondent from Petitioner as required for those signs from 1971 - 1976.
The location manager of Stuckey's, Charles Thompson of Eastman, Georgia, had the old signs, referred to in (a) above, taken down and new signs erected on different poles at an elevated height of between sixteen (16) to twenty (20) feet with new facing at the approximate location as the old sign. The old poles were wood, the new poles are metal. (Transcript page 38) This work was done between April and June 1975 on the location of the five (5) original signs.
The Outdoor Advertising Inspector for the Petitioner Florida Department of Transportation saw the old signs for each of the locations down and lying on the ground and saw the new signs on new metal poles at a new height with new copy being erected within two feet of where the old wooden posts holding the old signs had been.
Page 38 of the transcript shows the following testimony between the Hearing Officer and Manager Charles Thompson:
"Hearing Officer:
The previous witness testified that those signs that we're considering today were signs that were erected in essentially the same location on different poles with a different height, although the same sized facing; is that correct?
Mr. Thompson:
A. Yes, ma'am.
Hearing Officer:
Q. In other words you took the old down and put up new in about the same location on each one of these.
Mr. Thompson:
A. Yes, ma'am.
Hearing Officer:
Q. So there's really no dispute there.
Thank you, sir, very much, Mr. Thompson."
(d) Application was made in December of 1975 for renewal permits for all of the signs in the state owned by Stuckey's by Manager Thompson7 but no reference was made to the previously received Violation Notices which had been received in July 1975. The application for 1976 permits was for all signs of Petitioner and was not broken down as to location. The Petitioner Department of Transportation sent out renewal permits for signs that had previously been
permitted. No renewal was sent or intended to be sent for the signs which are the subject of this hearing because they had never been permitted.
The Respondent Stuckey's contended at the hearing that the five (5) signs were not new signs. Respondent contended that the five (5) signs were merely "maintained" and that the 1976 permits issued as renewals are renewals on the signs as they stand today after the renovation in April - June 1975. The Hearing Officer found, contrary to the contention of Respondent, that the signs were new signs.
Stuckey's submitted proposed factual findings: "3. That the Petitioner is estopped to prosecute
any alleged violation of Florida Statutes, 479.07(1)
and Sec.479.11(1) by the Respondent with respect to the signs referred to in paragraph 1 of the findings of fact in that Petitioner accepted the application
of the Respondent for renewal permits and issued the renewal permits on the signs in question with full knowledge that these signs were in possible
violation of Secs. 479.07(1) and 479.11(1)." (Emphasis Supplied)
The District Court of Appeal stated:
"Stuckey's submitted to the hearing officer proposed factual findings supporting a conclusion that the respondent Department was estopped to press objections to Stuckey's signs because, with knowledge of the alleged violations and after complaining of them,
the Department issued 1976 permits for the offending signs. The hearing officer's proposed order was entirely silent on that issue and on the facts pertaining to it, as was the Department's order adopting the proposed order as its own." (Emphasis Supplied)
The Hearing Officer hereby finds, consistent with the Findings of Fact in the Recommended Order, that the Proposed Findings of Respondent Stuckey's is in factual error. The signs that received a blanket permit with all the other Stuckey's signs were not "for the offending signs" and were not "the signs in question."
The 1976 renewal permits issued Respondent by Petitioner were of no force or value for the signs which are the subject of this hearing because Stuckey's had torn down the signs for which renewal application was sent prior to requesting renewal permits for them. The fact that Stuckey's asked for renewal permits of the signs without showing location or change or noting that its signs as standing was the subject of a previously received Violation Notice shows a lack of candor on its part because Respondent had been notified by a Violation Notice that the Petitioner Department could not issue permits for the new changed signs. Therefore, the Departments cannot be estopped to press objections to Stuckey's signs. No permits have been issued for the offending signs.
If the Hearing Officer had found the new signs to be "same" signs merely "rebuilt" or "maintained", the Proposed Conclusion of Stuckey's would
have had substance, but it was and is the clear finding of this Hearing Officer that Stuckey's signs that now stand in the approximate location of signs owned by Stuckey's from April 1971 until torn down in April to June 1975, are new and different signs.
Thus, a permit for the signs that now stand and are the subject of the hearing would have to be applied for by Respondent and granted by Petitioner.
CONCLUSIONS OF LAW
As a Conclusion of Law, the location of the nonpermitted signs as they now stand are in violation of Section 479.11(1)(2),F.S., inasmuch as they are within fifteen (15) to twenty (20) feet of the nearest edge of the right-of-way of an Interstate Highway System, and they are outside of an urban area. They should be removed from the location on 1-95.
DONE and ORDERED this 28th day of January 1977 in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Philip Bennett, Esquire
Florida Department of Transportation Haydon Burns Building
Tallahassee, Florida 32304
Benjamin F. Wren, III, Esquire Post Office Box 329
DeLand, Florida 32720
Raymond E. Rhodes, Clerk District Court of Appeal First District
Supreme Court Building Tallahassee, Florida 32304
Docket for Case No: 75-001922
Orders for Case No: 75-001922
| Issue Date |
Document |
Summary |
|
Feb. 21, 1977 |
Agency Final Order
|
|
|
May 28, 1976 |
Recommended Order
|
The signs are nonconforming and were materially altered so to make them illegal. Remove the signs.
|
