STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-1342

)

ALLAN BLACK CONSTRUCTION CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the hearing was held in the above-styled cause at the Right of Way Office, 1317 N.E. Fourth Avenue, Fort Lauderdale, Florida on the 20th day of September 1977, commencing at 1:50 p.m., before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Mr. Man Black, President

Man Black Construction Corporation Box 5-73 - Wellington

West Palm Beach, Florida 33411 ISSUE

Whether the sign of Respondent violates the State and Federal Rules and Regulations pertaining to outdoor advertising.

FINDINGS OF FACT

1. Petitioner issued a violation notice on the 29th day of June, 1977, alleging that a sign owned by Respondent located at the northwest corner of Seminole and Pratt-Whitney Road on State Road 80, Palm Beach County, Florida, violated permit, zoning and spacing laws.

   
   

2. No application was made for the erection of this sign and none secured from the Florida Department of Transportation. The sign is approximately 12-15 feet west of an existing sign and is approximately 60 feet from the edge of the right of way of the Federal Aid Primary Road 80. The area in which the sign was erected is zoned agricultural.

   
   

3. Petitioner contends that the sign violates the set back and spacing requirements of Section 479 and that it was erected in an agricultural zoned

   area without a permit. Respondent contends that the area is agricultural and is in a remote part of Palm Beach County and that he should be allowed a variance inasmuch as the sign is necessary for the advertising of his business in the rural section of the county.

   
   

   CONCLUSIONS OF LAW

4. Section 479.07 Individual device permits; fees; tags. -- "(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 sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the depart ment, 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 met

   obtained the license provided for in s. 479.04."

   
   

5. The foregoing section requires that a permit be applied for and secured before the sign is erected.

   
   

6. Section 479.02 Enforcement of provisions by department. It shall be the function and duty of the department 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;"

   
   

7. The foregoing section provides that an agreement will be made between the Governor and the Federal Government. This agreement was executed January 27, 1972, and ratified by the Legislature. The agreement prohibits the erection of signs closer than 500 feet on the Federal Aid Primary Highways other than an interstate, as follows:

8. Section 3 State Control.

   
   

   "BILL(3) Federal Aid Primary Highways.

   No two structures shall be spaced less than

   500 feet apart on the sane side of the highway facing the same direction."

   
   

9. Subject sign violates the foregoing statute inasmuch as it is nearer than 500 feet to an existing sign.

   
   

   Section 479.11 Certain outdoor advertising prohibited. -- No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or

   maintained:

   
   

   "(2) 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 maim-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)."

   
   

10. Respondent has violated this section inasmuch as he erected his sign in an agricultural zoned area along a federal-aid primary road.

RECOMMENDATION

Remove subject sign for failure to obtain a permit and for violation of zoning and spacing laws. There are no provisions for a variance under the facts of this case.

DONE and ENTERED this 19th of December, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

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

Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. Allan Black, President

Allan Black Construction Corporation Box 5-73 - Wellington

West Palm Beach, Florida 33411

Docket for Case No: 77-001342

Orders for Case No: 77-001342