STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1341T

)

1. W. LEE, JR., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, an administrative hearing was held before Delphene C. Strickland, Hearing Officer, in the Department of Transportation District Office Conference Room, South Marion Street, Lake City, Florida at 12:15 P.M., November 9, 1977.

   
   

   APPEARANCES

   
   

   For Petitioner: Philip S. Bennett, Esquire

   Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

   
   

   For Respondent: James J. Richardson, Esquire

   Post Office Drawer 1857 Tallahassee, Florida 32302

   
   

   ISSUE

   
   

   Whether the sign is in violation of 479.07 and 479.01 Florida Statutes for the reason that it has no permit tag attached thereto and has been enlarged.

   
   

   FINDINGS OF FACT

   
   

   1. A violation notice was issued to A. W. Lee, Respondent, on June 29, 1977, alleging that a sign owned by Respondent located at 12.85 miles north U.S. 441-Ellisville, Florida Highway I-75 with copy "Jiffy Junction" was in violation of 479.07 and 479.01 Florida Statutes and Rule 14-10.05(m) Florida Administrative Code. A request for administrative hearing was made by the Respondent and thereafter the Petitioner, Department of Transportation, requested the Division of Administrative Hearings to hold an administrative hearing.

      
      

   2. A sign in the same location as subject sign was tagged in 1971, 1972, 1973 and 1974 for an 8 x 12 sign. The permit was issued to Harvey Campbell.

      The sign was approximately 15 feet back from the right of way of I-75. A fee of

      $2.00 was paid for the permit.

   3. Prior to June of 1977 ownership was transferred from Harvey Campbell to the Respondent, A. W. Lee.

      
      

   4. The Respondent filed an application for a permit on June 20, 1977, for a sign 14 X 12 indicating a fee of $2.00 A sign at the location was existing, had no permit and measured 8 x 20.

      
      

   5. The sign as it stands at date of hearing is a sign 8 x 20, it advertises "Burger King this exit, turn right 300 feet right." It has no permit.

      
      

   6. The Hearing Officer further finds a sign that had been repermitted through 1977 was a sign 8 x 10 and the permit was issued to Harvey Campbell. The sign that stands there in the approximate location is a sign 8 x 20 and has additional poles to hold the panels. It has no permit. The sign is located on property owned by A. L. Lee, the Respondent, and the smaller original sign was transferred by Mr. Campbell to Respondent prior to April, 1976.

      
      

      CONCLUSIONS OF LAW

      
      

   7. Section 479.07 provides as follows:

      
      

      1. Except as in this chapter otherwise provided, 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). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s. 479.04.

         
         

   8. Rule 14-10.05(1)(m), (Supplement No. 79) provides as follows:

      
      

      1. Certain Outdoor Advertising Prohibited: No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

         (m) Which became nonconforming under the Law and is enlarged, rebuilt, reerected or altered in any manner except normal routine maintenance. For the purpose of this procedure, normal routine maintenance is defined as annual painting and/or replacement of deteriorated structural material, so long as the cost to replace new the deteriorated structural material does not exceed 5 percent of the depreciated value of the sign.

         
         

   9. The Respondent, A. W. Lee, Jr., is in violation of the foregoing statute which requires that each advertising sign have a permit from the Department of Transportation.

      
      

   10. The original sign which stood at subject location was a sign 8 x 12. The sign that is there now has been enlarged to 8 x 20. This enlargement is contrary to the foregoing Florida Administrative Code rule.

RECOMMENDATION

Remove the subject sign.

DONE and ENTERED this 3rd day of March, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1978.

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

James J. Richardson, Esquire Post Office Drawer 1857 Tallahassee, Florida 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 77-1341T

A. W. LEE, JR.,

Respondent.

/

FINAL ORDER

The Record and evidence in this case having been fully completed reviewed along with the Recommended Order of the Hearing Officer herein and finding that said Recommended Order is correct in both fact and law,

IT IS ORDERED that the Recommended Order of the Hearing Officer is adopted in its entirety and becomes the Order of this Agency on this 26th day of April, 1978.

TOM B. WEBB, JR., SECRETARY

State of Florida

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Copies furnished:

Delphene C. Strickland Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32301

Mr. Richard Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

James J. Richardson, Esquire Post Office Drawer 1857 Tallahassee, Florida 32302

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JULY TERM, A.D. 1978

A. W. LEE, JR., NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING PETITION AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. KK-134

DOAH CASE NO. 77-1341T

FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

/ Opinion filed January 4, 1979.

An Appeal from the Florida Department of Transportation, original jurisdiction. Elaine N. Duggar, for Appellant.

Margaret-Ray Kemper and Philip S. Bennett, for Appellee.

PER CURIAM.

This cause is before us on appeal from final agency action by order requiring removal of appellant's outdoor advertising structure on the grounds of

(1) no current permit tag and (2) enlargement of sign in violation of Rule 14- 10.05(1)(m). As to ground (1), this Court's opinion in Outdoor Advertising v. DOT, So.2d, Case #J-187, Opinion filed January 4, 1979, 1/ applies and the sign owner's application for a permit should have been granted. As to ground (2), appellant contends that Rule 14-10.05(1)(m), is without supporting statutory authority and that the order is not supported by competent substantial evidence establishing the sign was enlarged. We agree and reverse the order below.

Rule 14-10.05(1)(m) prohibits enlargement or significant repair to a sign which was in existence prior to December 8, 1971, but subsequently became "nonconforming" under the Federal Highway Beautification Act because of the sign's proximity to the interstate highway system. 2/ The rule in question purports not only to prohibit enlargement or repair, but to require destruction of the entire structure on proof of violation. We have reviewed the authorities specified by the Department as the basis for the enactment of this Rule 3/ and find no authorization therein expressed. Assuming the Legislature could empower the Department to destroy the private property in question for the violation charged in this case, it has not seen fit to do so.

This case is to be distinguished from the Court's decision in White Advertising v. DOT, So.2d, Case #KK-46, Opinion filed November 15, 1978, wherein this Court affirmed removal of a sign found to have been erected in violation of Florida Statute 479.11 2/ by virtue of extensive alterations making the structure in effect a new sign. The hearing officer's finding in White was that "the subject sign is virtually a replacement of the original." No such finding was made in this case. The conclusion here was that the sign had been enlarged in violation of Rule 14-10.05(m). In White the order states: "The validity and effect of Rule 14-10.05(m) was not considered in reaching the. . .conclusion."

Accordingly, the order below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

BOYER, Acting Chief Judge, MILLS and BOOTH, JJ., Concur.

ENDNOTES

1/ Accord, Waler v. So.2d, Case #II-13, Opinion filed January 4, 1979.

2/ Rule 14-10.05(1)(m), Rules of the Department of Transportation Supp. No. 79: "No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

(m) Which became nonconforming under the Law and is enlarged, rebuilt, reerected or altered in any manner except normal routine maintenance. For the purpose of this procedure, normal routine maintenance is defined as annual painting and/or replacement of deteriorated structural material, so long as the cost to replace new the deteriorated structural material does not exceed 5 percent of the depreciated value of the sign."

3/ "Specific Authority 20.05(5), 120.53(1), 334.02(6) F.S. Law Implemented

479.02, 479.05, 479.11, 479.10 and 479.16 F.S., Agreement between Governor and

1. Department of Transportation."

   
   

   4/ Fla. Stat. 479.11(1): "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. . ."

Docket for Case No: 77-001341

Orders for Case No: 77-001341