STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2026T

) PETERSON OUTDOOR ADVERTISING, )

)

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 April 27, 1976, at 10:00 a.m. at the Department of Transportation District Office Two, South Marion Street, Lake City, Florida.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: William D. Rowland, Esquire

Post Office Box 539 Winter Park, Florida

ISSUE

1. Whether the outdoor advertising signs of Respondent were in violation of Florida Statute 479.11(1), sign erected without a state permit.

   
   

2. Whether subject sign is a new and different sign inasmuch as it has new facings, is erected on new poles and is materially elevated from the location of the previous sign.

   
   

3. Whether subject sign is in violation of federal and state laws and should be removed.

FINDINGS OF FACT

1. Petitioner, Department of Transportation, issued the Respondent, Peterson Outdoor Advertising Corporation, notice of alleged violation of Chapter 479, F.S., on October 27, 1975 with respect to the following sign:

   
   

   Highway: S.R. 8 (I-95)

   Location: Junction I-95 and U.S. 17 Copy: 76 Truck Stop

   
   

2. Pursuant to this notice the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. This request was made by John T. Graczol, vice president of leasing, by letter dated November 6, 1975.

   
   

3. Respondent is the owner of the sign referred to in paragraph 1 of these findings.

   
   

4. A sign with similar copy was erected by the Respondent prior to 1970 at the approximate location of subject sign. The Respondent owned and maintained the sign from time of erection up until January of 1975 when such sign was removed and the subject sign built.

   
   

5. Subject sign is erected in a nonconforming area both in zoning and on a ramp outside of the city limits on an interstate highway. It is nearer than 660 feet from the nearest edge of the right of way of an interstate highway system in an open rural zoning area and can be read by persons traveling on the interstate highway system. The sign that was removed was in the approximate location with similar copy but with an elevation of under 10 feet. Subject sign is a replacement sign in the approximate location as the replaced sign with the same type of copy. The replacement sign is on different poles and at a more elevated height (from under 10 feet to over 16 feet) than the replaced sign.

   The replacement subject sign is much more visible to the traveling public than the old sign because of the materially increased elevation. No part of the old sign is standing and the replaced sign has been removed The Petitioner testified that the value of the sign increased by $484.00 and it is the finding of the Hearing Officer that the replacement sign is of more monetary value than the replaced sign.

   
   

6. The new facing materials, the replacement of poles and the decided increase in elevation, make subject sign a different sign within the meaning of Chapter 479, F.S. and the federal regulations, thus, becoming a new sign requiring a permit rather than qualifying as nonconforming with the customary maintenance or repair of existing signs allowed under Section 479.01(12), F.S., infra.

   
   

7. The owner of the sign was given written notice of the alleged violation and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.

   
   

   CONCLUSIONS OF LAW

   
   

8. The outdoor advertising sign of Respondent is in violation of Florida Statute 479.07(1), inasmuch as it is a new sign erected without a state permit and is 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(2), F.S., the 1975 enactment which prohibits the erection of any sign which can be seen from the federal aid highways. Respondent's sign is new and different having a new facing, erected on new poles, and being materially elevated from the previous sign height, thus, subject sign is in violation of the state and federal laws and should be removed. Such replacement was not incident to the change of advertising message or customary maintenance or repair of a sign structure.

   
   

9. 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 adver- tising message or customary maintenance or repair of a sign structure."

   
   

10. Under this statute, Respondent has erected a new sign. Respondent's sign is on new poles at a new height although within the approximate same location.

    
    

    (b) Section 479.11(1)(2),F.S.

    "Certain outdoor advertising prohibited. --No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

    1. 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, 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.

    2. Beyond 660 feet of the nearest edge of the right- of-way of all portions of the interstate system or the Federal-Aid primary system 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 subsection 479.16(1) or (3)."

       
       

       Respondent's sign violates this statute inasmuch as it can be seen and was constructed and erected within 600 feet of the nearest edge of the right-of-way of a portion of the interstate system and it was not within the exception of this statute.

       
       

       1. Section 479.24, F.S.:

          "Compensation for removal of signs; eminent domain; exceptions.--

          1. Compensation shall be paid upon the removal

             of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become noncon-

             forming. 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.

          2. Compensation shall be made pursuant to the state's eminent domain procedures, chapters 73 and 74.

          3. 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.

          4. The department is authorized to use the power of eminent domain when necessary to carry out

             the provisions of this chapter.

          5. 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 condemnation of any such sign shall be limited to the replacement value of the materials used in construction of such signs.

          6. 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 sign was a nonconforming sign which means that it was 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 Procedures, State of Florida, Department of Transportation, No. 171-001, page 6, paragraph (12).

             
             

11. Section 479.01(15), F.S., defines maintain as ". . . to allow to exist." The previous sign was not "allowed to exist". It was replaced by a new sign on new poles with a decided elevation and a minor change in location.

    
    

    1. The sign is in violation of the agreement 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 Legislature by Senate Concurrent Resolution No. 657 and filed in the Office of the Secretary of State on March 2, 1972. The U.S. Department 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 nay 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."

       
       

12. The subject sign is nonconforming and violates the setback requirements of state and federal laws.

1. Respondent's sign is 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 that 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 bears 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

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 794.02, F.S.:

"Duty of department.-- The department shall enforce this law."

RECOMMENDATION

Remove subject sign if said sign has not been received by the owner within ten (10) days after entry of the final order herein.

DONE and ENTERED this 30th day of June, 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

William D. Rowland, Esquire

P. O. Box 539

Winter Park, Florida

Mr. O. E. Black Administrator

Outdoor Advertising Section

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32304

Mr. F. S. Whitesell District Sign Coordinator South Marion Street

Lake City, Florida 32055

Docket for Case No: 75-002026

Orders for Case No: 75-002026