A. HANCOCK ADVERTISING, INC., )
Respondent. )
Pursuant to notice, the above styled cause came on to be heard before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in the Fourth District Right of Way Office, 1317 Northeast 4th Avenue, Fort Lauderdale, Broward County, Florida, on the 12th day of July, 1977, commencing at 1:15 p.m.
For Petitioner: Philip S. Bennett, Esquire
For Respondent: Robert D. Korner, Esquire
Whether the subject outdoor advertising sign should be removed.
The Respondent, E. A. Hancock Advertising, Inc., erected two double face outdoor advertising signs in June, 1975, in an unincorporated part of Broward County, Florida, without first obtaining a permit from the Petitioner, Florida Department of Transportation. Two of the signs face north and two signs face south. Each sign structure has two faces.
After erection the Respondents applied for permits but permits were refused by Petitioner and violation notices dated October 22, 1975, were sent to Respondents indicating that Respondent was in violation of the outdoor advertising laws by erecting signs without permits and erecting "two separate signs erected illegally (which] can be seen from 1-95."
After much correspondence between the parties, the matter was set-for hearing November 9, 1976, was thereafter continued and finally heard on July 12, 1977, more than two years after the erection of the signs.
The signs were constructed on a county secondary road known as Ravenwood Road, Fort Lauderdale, Florida, and more definitely located as "south from 3497 Ravenwood Road. The road is one lane in each direction and is the type of road usually known as a service road. The billboard signs are elevated to a height of approximately 25 feet from the ground to the top of the sign and sit back about 15 feet from the secondary road.
Although the signs can easily be read by travelers on Ravenwood Road, signs designed primarily to serve this two lane road would as a practical matter have been much smaller and much closer to the ground and the message would have had smaller letters. The signs are a "visual overkill" for travelers on Ravenwood Road. See "Petitioner's Composite Exhibit 1" and the Polaroid pictures taken from Ravenwood Road.
The signs are elevated to less than 25 feet above 1-95. One sign is about 190 feet from the south lane of the interstate highway and the other about
191 feet from the south lane of the highway. Both signs are on the west side of the interstate highway. The two sign structures are approximately 300 feet apart. One sign is approximately 500 feet from an existing sign and the other is approximately 850 feet from an existing sign.
The large size lettering on the large signs are clearly visible to the motoring public on interstate highway 1-95. Three of the four signs are visible and can easily be read by motorists going either north or south on the interstate highway. Evidence is unclear as to whether one side of one of the double space signs is clearly visible from the interstate highway.
Copy on the signs is changed from time to time, but at the time the pictures entered into evidence were taken from the interstate highway, copy read, "WHITEHALL PRESTIGE LIQUORS A GREAT VODKA" and "HOLSUM Baked just right for you." The advertising is large and can be read in the Polaroid snapshots that were taken by Petitioner while on the interstate highway and entered in the record as "Petitioner's Composite Exhibit 1."
Application for sign permits was made June 16, 1975 to the Broward County Planning, Building and Zoning Department. Permits were issued by the county and were affixed to the signs.
The Hearing Officer further finds:
The subject signs were constructed primarily to be read by the public traveling on the interstate highway.
The size of the signs, the size of the lettering, the elevation of the signs and the angle of the signs provide insurance that messages can be easily read by those traveling on the interstate.
The traffic on the interstate is much heavier than traffic on Ravenwood Road.
The Petitioner contends that the Respondent is in violation of outdoor advertising laws:
No permit was applied for or granted before the outdoor advertising signs were constructed by Respondent.
The signs were constructed primarily to be read by the public traveling on 1-95, an interstate highway.
The setback of tho Respondent's signs is less than 660 feet from the interstate highway.
The signs should be removed as violating the state statutes as well as the federal code laws, rules and regulations contained in the "Highway Beautification Act."
Broward County has not submitted to the administrator of the state evidence that it has established effective control with regard
to size, spacing, height and lighting requirements contrary to the agreement of the Governor authorized by Section 479.02.
Broward County does not enforce any outdoor advertising requirements even if it could be shown the zoning was in compliance with Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code as required by Section 479.02 and the agreement executed pursuant thereto.
Respondent contends that:
It secured permits from Broward County and attached them to the subject signs. Broward County had zoned the area M-3 and that it is a commercial zone.
The signs were erected primarily to be read by the public traveling on Ravenwood Road.
There are no spacing requirements of a thousand feet between advertising signs under the Florida
law and that even if there were they had not been formerly charged with violating spacing requirements.
Public Law 89-285, passed by the 89th Congress of the United States on October 22, 1965, allowed the states and the federal government to agree to set-back for signs nearer than 660 feet of the nearest edge of the right of way in areas zomed industrial or commercial.
The agreement between the Governor and the federal government made provisions for local governments to regulate size, lighting and spacing requirements.
That in fact the ratification of the Governor's Agreenent under Section 479.02 is not the enactment of a law.
The Petitioner has in fact issued permits to others after signs have been constructed and should issue a permit for subject signs to Respondent.
At the subject hearing the attorneys for both parties indicated that they desired to submit a Memorandum of Law but neither party submitted a memorandum.
CONCLUSIONS OF LAW
Section 479.07(1), Florida Statutes, Individual device permits; fees; tags.-, provides in part:
"(1) Except as in this chapter otherwise no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or
maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided.
Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4) . . . ." (Emphasis supplied)
The Respondent violated the foregoing statute inasmuch as it constructed subject signs without first applying for and obtaining a permit from the Florida Department of Transportation, Petitioner. Application for a permit was made only after the signs were constructed and after Respondent was notified that no permit had been granted by the Petitioner and that no application had been made.
The application by an advertiser is received by the state inspector whose duty it is to check proposed sign locations to see that billboards meet the requirements of the state and federal law. Upon inspection, if the proposal does not meet the requirements of law a permit is not granted. The advertiser is notified by the Petitioner's inspector and a proper location can then be found by the advertiser. Inspectors for the Petitioner often spend a great deal of time helping advertisers find locations that can be permitted by the Petitioner under the state requirements. If no application is made and the signs are erected without a permit then the advertiser not only violates the clear requirements of the foregoing statute requiring that an application be made and a permit be granted, he erects signs at his own peril.
It would be patently unfair to other advertisers, who abide by the law and apply for and secure a permit, for signs erected without an application first being made to be permitted. The practice of the Petitioner granting a permit without abiding by the foregoing statute, if there is such a practice as contended by the Respondent, would allow the state to "selectively enforce" the law. If permits have been granted to those who erect billboards without first
applying for and securing a permit, it is not contended that permits have been granted where the signs also violate the setback, spacing and visibility requirements of the statute and the agreement promulgated thereunder. To grant a permit to Respondent after construction of a sign would encourage unscrupulous advertisers to erect their signs then ask for a hearing and rent them while the wheels of justice slowly move to final agency order. Often months and even years pass before a hearing and final resolution. In the subject case the signs have stood and have been advertising for more than two years.
It is noted that the Respondent violated the foregoing statutes, Section 479.07, by failing to apply for a permit but it followed Section 479.13, Florida Statutes, Written Permission of Owner Required, by obtaining a three year lease for the subject outdoor advertising structure a month before the signs were erected.
Section 479.04 was also followed by payment of the outdoor advertiser's fee. It would be unfair to allow the Respondent in subject case to "selectively" abide by Chapter 479 Outdoor Advertising Law.
Section 479.11(1), Florida Statutes, Certain advertising prohibited.-, provides:
"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 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. (Emphasis added)
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 violated the foregoing statute by erecting its sign structure "outside the limits of any incorporated city or town" and "within 660 feet of the nearest edge of the right-of-way of the interstate highway system." Had the signs been erected in July of 1975 rather than June of 1975, the amendment to Section 479.11 effective July 1, 1975 would have proscribed the erection of the signs "beyond 660 feet of the nearest edge of the right-of-way." See subsection (2) above.
Section 479.02, Florida Statutes, Enforcement of provisions by department.-, was argued at length at the hearing. The section is discussed in a recent decision, Walter P. Brazil v. Division of Administration, State of Florida Department of Transportation, 347 So.2d 755, Opinion filed June 21,
1977. Contrary to the contentions of the Respondent the Governor's Agreement executed on January 27, 1972, has been upheld as a valid part of state law and the contention that there are no spacing requirements under Florida law is without merit:
"In 1965, the United States Congress enacted the Highway Beautification Act as part of Title XXIII, United States Code. To further the national policy relating to control of outdoor advertising along
interstate and primary federal aid highways, Section 131(d) authorized the Secretary of Transportation to enter into agreements with the several states to determine the size, lighting, and spacing of signs, consistent with customary use and the intent of the Highway Beautification Act of 1965.
Section 479.02, Florida Statutes (1971), authorized the governor to execute an agreement with the appropriate agents of the United States to carry out the purposes of the Highway Beautification Act. Such an agreement was entered into by the State of Florida, through its governor, and the United States by the Secretary of the Department of Transportation on January 27, 1972. The agreement applies to all commercial and industrial areas within 660 feet of the right of way of all interstate and federal aid primary systems within the state. Section III.B. provides in part that no highway signs shall be placed within 1,000 feet of each other."
". . . . A 1,000 foot spacing requirement was part of federal regulations when Chapter 72-274 became effective in April, 1972. 23 C.F.R. Section 2O.7(b)(2),
effective January 1, 1972.
Since the spacing regulation was in effect and properly incorporated into Florida law by Chapter 72-274 at the time the billboard was erected by B & B, the trial court was correct in finding a violation of 479.02.
Therefore B & B Advertising's attack on the agreement of January 27, 1972 is without merit. DOT has sufficient authority not only to enforce the agreement but also to enforce the remaining provisions of Section 479.02."
The foregoing cited statute was in force at the time that the Respondents erected the subject billboards in June of 1975. The contention by the Respondent that it has never been formerly charged with violating the spacing requirements of the statute is without merit for two reasons; first, Respondent is not only presumed to know the law, the Respondent was notified by
letter dated February 13, 1976, that it was in violation of spacing requirements and a letter from the District Outdoor Advertising administrator to Mr. George
Corbett, President of the E. A. Hancock Advertising Company, stated in part:
"Signs within 660 feet of the interstate
right of way and readable from the travel-way come under the regulations applicable to interstate highways, that is, they must be industrial zoned areas and must be at least a 1000 feet from any other sign other than point of pressure signs on the same side of the highway facing the same direction.
This is spelled out in Chapter 479.02, Florida Statutes, and the previously mentioned agreement. Your two double space signs are approximately 300 feet apart. Your southern most sign is approximately 500 feet from an existing 'Tropical acres' sign.
Your northern most sign is approximately 830 feet apart from an existing 'Coppertone' sign."
In regard to Public Law 89-285 of 1965 and the contentions of the Respondent, supra, the agreement between the state and federal government executed January 27, 1972 did allow the states to provide for local governments to regulate the size, lighting and spacing requirements but the provision required:
"Section III. State Control
The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, (Section
Certain advertisement excepted is not applicable) in accordance with the following criteria:
In zoned commercial and industrial areas, the State may notify the Administrator as notice of effective control that there has been established within such areas
regulations which are enforced with respect to size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply."
Thus, local units of government including Broward County must submit their zoning regulations to the Florida Department of Transportation, which is
charged with the enforcement of all laws and rules involving outdoor advertising, for its review. It must in turn notify the federal highway administrator that there has been established within the zoned areas enforced regulations consistent with state laws and the Highway Beautification Act.
No evidence was submitted to this Hearing Officer that the Broward County zoning regulations are consistent with "the state laws and Highway Beautification Act" and the Broward County planning and zoning department has not submitted its regulations to the Petitioner, Florida Department of Transportation. It was not shown that Broward County enforces any regulations for outdoor advertising. There was no evidence presented that the area was zoned commercial or industrial. Further, the permit for the signs issued by the Planning, Building and Zoning Department was for non-illuminated signs although one sign of Respondent is presently illuminated.
From the personal observation of the Hearing Officer traveling up and down the interstate highway system of the State of Florida the subject signs and many other billboards are so placed on narrow roads and little used highways obviously to be seen from the interstate highway system. This violates the spirit of Section 479 as well as the clear requirements. It also violates the spirit of Title 23, Section 131, United States Code, the "Highway Beautification Act" as well as the requirements the re to.
