STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 76-704T

) 76-1229T

NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above styled cases were heard before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in the Conference Room of the Department of Transportation District Office in Lake City, Florida beginning at 10:30 a.m. on September 13, 1976.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: W. D. Rowland, Esquire

Post Office Box 539

Winter Park, Florida 32789 INTRODUCTION

The Respondent National Advertising Company and the Petitioner Department of Transportation stipulated as to the factual situation of the subject signs. The parties agreed that the issues were the same in both cases.

The Petitioner Department of Transportation contends: that the signs having been elevated and catwalks and lights added which changed the former signs into new signs which have to be permitted by the Department but are ineligible for a permit inasmuch as they violated the setback laws of Chapter

479 and federal laws, rules and regulations.

The Respondent sign company contends: that the change in the elevation and the addition of the lights and catwalks does not change the signs and no new application need be made and a permit should be issued. Respondent sign company also contends that the rules and regulations adopted by the Governor's Agreement of January 27, 1972, and by Section 479.02 would have to be adopted as rules under Chapter 120.

ISSUES

1. Whether the outdoor advertising signs of Respondent are in violation of Florida Statute 479.07(1), sign being erected without a State permit.

   
   

2. Whether the subject signs are in violation of the setback requirements of Section 479.11, Florida Statutes.

   
   

3. Whether subject signs are new and different signs inasmuch as they have new copy, are materially elevated from the location of the previous signs and have catwalks and lights added, thus requiring a new application and permit.

   
   

4. Whether subject signs are in violation of federal and State laws, rules and regulations and should be removed.

   
   

5. Whether the federal regulations adopted in Section 479.02, F.S., would have to be adopted as a rule under Chapter 120, F.S.

FINDINGS OF FACT

1. The Respondent sign company has a sign located approximately 12.81 miles north of Dunn Avenue on the east side of I-95 facing south containing the following copy:

   
   

   "Ramada Inn Exit 7 Miles U.S. 17"

   
   

2. The sign was increased in height from under ten (10) feet to twenty

   1. feet from the ground to the bottom of the sign, lights were added, and the catwalk was added to accommodate the change in advertisers. This extensive alteration was done in June of 1975 and copy was changed. The original sign was erected in May of 1968 and advertised "Shell Oil."

      
      

3. Respondent sign company has a sign located approximately 8.81 miles south of Bowden Road on the west side of I-95 facing north and containing the following copy:

   
   

   "Family Inn of St. Augustine"

   
   

4. The revised sign is located in an area zoned open rural, has been elevated and has had lights and catwalk added. The original sign had different copy and was erected and permitted in October of 1968.

   
   

5. Permits had been issued for the two subject signs in the approximate location with different copy on them in October of 1968 or shortly thereafter. The new advertisers wanted the signs lighted and pay approximately $30 more per month for the lighted signs. The new signs now are much more visible.

   
   

6. Both signs were elevated approximately ten (10) feet, new copy put on them and lights and catwalks added in April of 1976. Permits were applied for but the Petitioner Department of Transportation refused to issue permits stating that they were new signs, no new applications had been made and were obviously ineligible for permits inasmuch as the signs violated the setback requirements of Chapter 479 and the federal laws, rules, and regulations adopted by the Florida Legislature.

   CONCLUSIONS OF LAW

   
   

7. 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. They 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(2), F.S., the 1975 enactment which prohibits the erection of any sign in a rural area which can be seen from the federal aid highways. Respondent's signs are new and different signs having new facings, having been erected on new or extended poles, lighted and provided with catwalks and having been materially elevated from the previous sign heights. Thus, subject signs are in violation of the state and federal laws governing setback distance and should be removed. Under Section 479.02 the federal regulations were adopted by the statute and by the legislature in ratifying the Governor's Agreement of January 27, 1972.

   
   

8. Section 479.02, Florida Statutes, mandates the Department of Transportation to:

   
   

   "(1) Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code;

   1. Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial area;

   2. Determine unzoned commercial and industrial areas; and

   3. Regulate signs relating to food, lodging, camping, vehicle service, and attractions, subject to current federal regulations."

   
   

9. This statute incorporates current federal regulations into the regulatory duties of the Department of Transportation. Thus no rule need be adopted to incorporate these regulations.

   
   

10. 23 C.F.R. 750.707, contains the current federal regulations pertaining to nonconforming signs. Subsection (d)(5) therein provides that "(t)he sign must remain substantially the same as it was on the effective date of the State law or regulations." Further, Policy and Procedure Memorandum (PPM) 90-6, persuasively established that "(e)xtension or enlargement of the sign is a change in the existing use" and Policies and Procedures No. 171-001 of the Department of Transportation in Section 12 on page 6, provides that a sign is in violation of the outdoor advertising laws and regulations when a sign is "altered in any manner except normal routine maintenance."

    
    

    1. Section 479.01(12), Florida Statutes: "'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 lighted, provided with catwalks, and are at a new height although within a few feet of the same location.

       
       

    2. Section 479.11(1), Florida Statutes:

       "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, 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 play- ground, 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 inter- state 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 as 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. The signs on I-95 also violate subsection (2), supra, being located outside of urban areas with the purpose of the message being read from the main travel ways of the federal aid system.

          
          

    3. Section 479.24, Florida Statutes: "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 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.

       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 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, re-erected, or altered in any manner except normal routine maintenance. See Procedure, 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 signs were not "allowed to exist." They were replaced by new signs with a decided elevation, lighted, catwalks added, and a minor change in location.

    
    

    1. These signs are 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 United States 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 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."

       
       

12. The subject signs are nonconforming and violate the setback requirements of state and federal law.

1. 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 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. 479.04 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, Florida Statutes: "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 degrees punishable as provided in s. 775.082 or s.

775.083."

Section 479.20, Florida Statutes:

"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, as no applications for permits were made or granted.

DONE and ORDERED this 20th day of December, 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:

George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

W. D. Rowland, Esquire Post Office Box 539

Winter Park , Florida 32789

George E. Hollis Branch Manager

National Advertising Company Post Office Box 23208

Tampa, Florida 33622

Mr. Frank Whitesell Post Office Box 1089

Lake City, Florida 32055

Mr. O. E. Black, Administrator Outdoor Advertising

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32304

Docket for Case No: 76-000704

Orders for Case No: 76-000704