STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-851T

) LAMAR-CITRUS OUTDOOR ADVERTISING )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above-styled cause on October 11, 1977, beginning at 1:15 p.m., in the Department of Transportation District Office Conference Room, 81 North Broadway, Bartow, Polk County, Florida, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Tallahassee, Florida 32304

For Respondent: E. Snow Martin, Esquire

Post Office Box 117 Lakeland, Florida 33802

ISSUE

Whether the signs of Respondent should be removed for violating the spacing requirements of Florida Statutes and State Laws, Rules and Regulations.

FINDINGS OF FACT

1. An application for a permit was filed by the Respondent, Lamar-Citrus Outdoor Advertising, for a location and construction of a billboard sign. The application designated U.S. 41 not within the city limits in the county of Lee. The nearest highway intersection was designated as Bonita Beach Enterance, Highway 865 and 1200 feet North from the intersection.

   
   

2. The permit was approved May 13, 1976, and the approval designated the sign location as "Sec 309N 01.32 15R f/s." The direction that the sign would face was checked. The lighted block was not checked.

   
   

3. Thereafter a 12 x 25 double-face lighted sign was erected by the Respondent on the West side of United States Highway 41, a four-lane highway.

4. On May 2, 1977, the Petitioner, Department of Transportation, issued an "alleged violation of Chapter 479, Florida Statutes, and Notice to Show Cause." The violation notice stated "Signs were approved in this section, but they were for 309 North, not South."

   
   

5. Petitioner requested an administrative hearing.

   
   

6. Petitioner contends: he properly constructed his signs pursuant to his application and the permit issued by the Respondent. He contends that the spacing problem is caused by another outdoor advertising sign and not his own. Petitioner further contends that the application forms have been changed to clarify the location of signs since his application was filed and his permit was granted.

   
   

7. Respondent contends: that Petitioner failed to locate his sign in the location for which he applied and for which the permit was issued; that because of the failure to properly locate his sign, his sign is in an unpermitted location and is an unpermitted sign; that Petitioner's sign is in violation of the spacing requirements of Section 479.02(2) inasmuch as a properly permitted sign is within 200 feet of Petitioner's sign; that the Petitioner has been applying for and has been granted permits for outdoor advertising along the highways of the State of Florida for at least nine and a half years and that the same method of describing the location for the construction of billboards has been used by the Respondent and has been used by the Petitioner and that it is a logical and practical way to describe a permitted location for a sign along a highway; that it is true that new forms are being used to further clarify the position of signs but that the application form used by the Petitioner when applying for the sign and obtaining a permit for the subject sign is clear on its face and the method of location has been well known to the Petitioner for many years.

   
   

8. Upon observing the demeanor of the Petitioner and Respondent and listening to the testimony of the witnesses and argument of counsel, the Hearing Officer further finds 1) the Petitioner knew or should have known that the area in which he was permitted to erect a sign was East of the highway inasmuch as the location and construction form expressly stated that the nearest highway intersection was Number 865 and that the direction from the intersection was North. The permit states Sec. 309 North and indicated the sign faces South. A driver of a vehicle going North from the intersection must be in the right hand two lanes of U.S. 41 and that to proceed 1200 feet a sign would be on the right hand or the East side of the four lane highway. The "modus operandi" for location of signs is statewide and well known to the Petitioner as well as the Respondent.

   
   

9. To ascertain a location on the West side opposite the area in which the Respondent approved for Petitioner's sign would have required a vehicle to travel North in the South bound lanes of U.S. 41 in order to drive the distance from the stated intersection to the location. Throughout the state the sections are usually designated on the permits so that they show the direction in which to drive, North, South, East or West. The signs are located on the right side of the highways as the vehicle travels.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 479.07 requires an advertiser to apply for and obtain a permit for erecting an outdoor advertising sign. Petitioner filed an application and received a permit to erect a sign 1200 feet North of intersection 865 on the

East side of the highway. No sign has been constructed in the area for which the Petitioner holds a permit. Section 479.02 and the rules promulgated thereunder require that the signs along U.S. 41 be spaced at least 500 feet apart. Petitioner has erected a sign in a location for which he held no permit and the sign is in violation of the spacing requirements of the foregoing statutes.

RECOMMENDATION

Require the Petitioner to remove the subject sign or remove it at the expiration of appeal time.

DONE and ENTERED this 12th day of January, 1978, 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 Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

E. Snow Martin, Esquire Post Office Box 117 Lakeland, Florida 33802

Docket for Case No: 77-000851

Orders for Case No: 77-000851