STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-160T

) EMPIRE ADVERTISING INDUSTRIES, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned case, after due notice to the parties, at Fort Lauderdale, Florida, on June 8, 1976.

APPEARANCES

For Petitioner: Phillip Bennett, Esquire

Room 562, Haydon Burns Building Tallahassee, Florida

For Respondent: Robert Korner, Esquire

4790 Tamiami Trail

Coral Gables, Florida 33134 ISSUE PRESENTED

Respondent's alleged violations of Section 479.02(2), 479.07(2), and 479.111(2), Florida Statutes.

At the commencement of the hearing, counsel for Petitioner moved to withdraw alleged violations concerning Respondent's signs located on State Road 5, 0.1 miles south of SR 9 west side, southwest and 0.3 south of SR 9 west side, southwest. The Motion was granted.

FINDINGS OF FACT

1. Respondent owns a sign located on the west side of Interstate Highway

   95 (1-95) in the city of Pembroke Park, Florida, 0.2 miles north from the Dade County line which bears the copy "Johnny Walker Red". This sign was created by connecting two previous signs by the use of a panel in the middle. The two former signs were six feet by twelve feet each and located approximately six inches apart. When joined they became one sign six feet by twenty-four feet. An alleged violation-of Section 479.07(2), Florida Statutes, was reported by Petitioner's Outdoor Advertising Inspector for changing the size of the signs without first obtaining a proper permit. Subsequent to the reported violation, a meeting was held between Respondent and representatives of the Petitioner concerning the converting of two signs into one. At the meeting, Petitioner's

   representative, O.E. Black, Administrator of the Outdoor Advertising section, apparently authorized such joinder if the signs were cut in the middle so that technically they constitute two signs. It was further agreed at that meeting that separate permit tags would be retained as required. The sign (or signs) is presently in accordance with the above policy, and application has been made for the necessary permit. (Testimony of Hackett, Simokat).

   
   

2. Sign located on SR 5, 400' North of Kendall Drive, Southwest. This is a sign erected in Dade County which did not bear a State permit tag at the time the alleged violation was noted on January 5, 1976. The sign is located on properties zoned for "general use". After receiving the Notice of Violation, Respondent's representative discovered that four tags instead of two had been placed on a nearby sign owned by the company, and that apparently two of them belonged to the sign in question, but inadvertently had not been affixed. He thereupon placed the two extra permit tags on the offending sign. It is agreed by the parties that the sign is properly tagged and permitted at the present time. (Testimony of Conde, Owens).

   
   

3. Sign located on SR 25A, southwest corner of Second Avenue and 54th Street N.W., Miami, Florida. This is a sign that was formerly two signs 6' X 12' which were made into one large sign 6' X 24'. A piece of metal was put between the two signs to join them. There is also a plywood embellishment attached to the merged signs which is the same height as the existing sign, but extends on the right end to make the total area approximately 15' x 28'. A permit was applied for by the Respondent and denied because the sign was less than 500' away from other permitted signs. Though, the signs were erected four or five years ago, the consolidated sign with new dimensions is considered by Petitioner to be a new sign that cannot be permitted because of +he above- mentioned spacing requirements. (Testimony of Conti, Simokat).

   
   

   CONCLUSIONS OF LAW

   
   

4. As to Sign located on 1-95 west side 0.2 miles north from Dade County line, City of Pembroke Park. Petitioner alleges that Respondent violated Section 479.07 (2), Florida Statutes, as follows:

   
   

   "A sign shall not change size without first obtaining proper permit; nonconforming sign now illegal; two separate signs now remodeled to become larger signs."

   
   

5. Section 479.07(2) deals with applications for permits for advertising structures and signs and provides that applications shall be accompanied by payment of the fee for each sign based on its size. It further prescribes how sizes are determined, the cost of permits therefor, etc. There is no language in the statutory provision that. prohibits changing the size of a sign without first obtaining a proper permit. Neither is there anything in the provision concerning nonconforming signs or the remodeling of separate signs to become one larger sign. Further, Section 479.07(1), although requiring that permits be obtained prior to constructing signs outside of incorporated cities or towns, requires only that an application for a permit be made with regard to signs constructed along federal-aid primary highways or interstate highways within incorporated cities or towns. In view of the foregoing statutory provisions, it is unnecessary to consider the particular facts of the consolidation of signs by the Respondent. It will suffice to note that the sign or signs in question were located within in incorporated city and did not require a permit prior to

   construction or change. It is thus concluded that Petitioner has failed to establish i violation of Section 479.07(2), by Respondent.

   
   

6. As to Sign located on State Road 5, 400' north of Kendall drive southwest Dade County. Petitioner alleges that Respondent violated Section 479.07(1), Florida Statutes, as follows:

   
   

   "Permit required prior to erection of sign."

   it is also alleged that Respondent violated Section 479.111(2) as follows: "Signs permitted in commercial and industrial

   zones only; property is zoned "general use."

   
   

7. Although no permit tag was one the sign in question at the time he violation was noted, Respondent's employee found four tags instead of two on an adjacent sign, thus lending credence to the probability that permits had been issued for both signs. It is undisputed that a permit now exists for the sign and that tags are properly affixed. Petitioner offered hearsay evidence to the effect that the sign was in an area zoned "general use" and Section 479.111(2) permits signs within controlled positions of the Interstate and Federal-aid primary system only in commercial and industrial zoned or commercial and' industrial unzoned areas. Be that as it may, the existence of a valid permit precludes action at this point to have the sign removed. Therefore, although there may have been a violation of Section 479.07(1) on January 6, 1976, there is no basis for further action at this time.

   
   

8. As to Sign located on State Road 25A, Miami, Florida, southwest corner, 2nd Avenue and 54th Street, N.W. Respondent is alleged to have violated Section 479.02(2) as follows:

   
   

   "Spacing; sign is less than 500' from other permitted signs."

   Also there is an alleged violation of Section 479.07(2) as follows: "Sign shall not change without first obtaining

   proper permit; change to 15' X 28' after

   9-05-75."

   
   

9. Section 479.02(2) is not susceptible of violation by Respondent because it pertains only to the functions and duties of the Department of Transportation. Further, nothing is said in the entire section concerning a 500' spacing requirement.

   
   

10. As to the alleged violation of Section 479.07(2), concerning the prohibition about changing the size of the sign without first obtaining a proper permit, the same considerations as to incorporated areas apply as were stated in paragraph 1 above. Here two signs were enlarged to become one, and an application was made for one permit because the sign was inside an incorporated city. Application for such a permit is all that is required under Section 479.07(1), and Petitioner's representative acknowledged that the only reason the sign could not be permitted was because of the alleged spacing requirement. Since no spacing requirement was established, there is no violation.

RECOMMENDATION

That the alleged violations against Respondent Empire Advertising Industries, Inc., be dismissed.

DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Phillip Bennett, Esquire

Room 562, Haydon Burns Building Department of Transportation Tallahassee, Florida 32304

Robert Korner, Esquire 4790 Tamiami Trail

Coral Gables, Florida 33134

Docket for Case No: 76-000160

Orders for Case No: 76-000160