STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETERSON OUTDOOR ADVERTISING ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1432T

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION )

)

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 10:00 a.m., on November 9, 1977.

APPEARANCES

For Respondent: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Petitioner: Sam Flake, General Manager

Peterson Outdoor Advertising Corporation Ocala, Florida

ISSUE

Whether the sign of Petitioner is in violation of the Florida Statutes, Outdoor Advertising Law, Chapter 479 and particularly Chapter 479.07 for having erected this sign in violation of the zoning regulations and without a permit from the Department of Transportation.

FINDINGS OF FACT

1. An alleged violation notice was sent to Peterson Outdoor Advertising Corporation, Petitioner, by the Respondent, Department of Transportation, on July 27, 1977. The notice indicated that the sign owned by Petitioner located

   300 feet north of 5-227, U.S. Highway 301 in Bradford County, Florida, with a blank copy was in violation of

   
   

   Ch. 479, Florida Statutes, Rule 14-10-05 (1)(a), Not zone for conforming sign - sign erected in a zoned agricultural area.

   Ch. 479.07(1) Florida Statutes, Rule 14-10.04

   1. Sign erected without first [sic] obtaining a permit.

   
   

2. A violation notice was received by Michael S. Nelson, lease representative for the Respondent, and a letter was sent to the District Administrator for Outdoor Advertising, Florida Department of Transportation, acknowledging receipt of the violation notice and requesting the Department of Transportation to set the cause for hearing. This administrative hearing is the result of such request.

   
   

3. The Peterson Outdoor Advertising Corporation made an application for permit for a sign to be located at the location the subject sign now stands.

   
   

4. The application for a permit was not approved for the stated reason that the requested location was in a zoned open rural area and outdoor advertising could not be permitted in such a location. Petitioner was so notified.

   
   

5. Nevertheless a sign was erected by Petitioner and Respondent's inspectors found said sign at the location with no copy on it at the first inspection. Subsequent to that inspection, the sign was finished by Petitioner to advertise McDonalds, with the large golden "M", further stating: "Campers/ Buses 3 Miles Ahead on the Right, Open at 7:00 for Breakfast." The sign was erected without a permit in a zoned open rural area in Bradford County. The sign is approximately 15 feet off the right of way of Highway 301 in open rural country at least 3 miles from any industrial or commercial areas.

   
   

6. Petitioner contends that he applied for a permit to erect the sign at the subject location but that his application was denied. Regardless, he erected the sign and has been endeavoring to have the rural area rezoned.

   
   

7. Respondent, Department of Transportation, contends that the erection of the subject sign is in violation of the law inasmuch as it is the duty of the Department of Transportation to grant a permit before a sign is erected. Respondent further contends that the area in which the sign is located is in open rural country and the proposed sign location, even if it were rezoned to allow outdoor advertising, could not be permitted by the Department inasmuch as such rezoning would be "spot zoning" and contrary to the requirements of Chapter 479, Florida Statutes, Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code and contrary to the concept of "effective control" by the Florida Department of Transportation which has the duty to control outdoor advertising for the State of Florida.

   
   

8. In response to a request to the Bradford County Zoning Commission, the following letter was received:

   
   

   Pursuant to our conversation on November 7, relating to the zoning classification of the

   C. M. Ritch property located approximately

   2 miles South of Starke on Hwy. 301, the property is zoned Open Rural and under Bradford County Zoning Ordinances does allow outdoor advertising signs. The area in which the sign was erected is the area indicated in the letter.

9. The Petitioner intentionally erected its sign in the open rural area of Bradford County and continues to allow it to stand although the Bradford County Zoning Ordinances show that no outdoor advertising is to be allowed.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 479.07(1) provides in part:

    
    

    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, 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).

    
    

11. The Petitioner intentionally erected its sign in violation of the requirement of Section 479.07(1). It was notified that no sign could be erected at that location by the Respondent.

    
    

12. Section 479.02, Florida Statutes, provides:

    
    

    1. 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;

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

       3. Determine unzoned commercial and industrial areas; and

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

13. The Respondent, Department of Transportation, has the duty to receive applications and issue permits to outdoor advertisers if the application complies with the requirements of Chapter 479 and particularly Section 479.02 and 479.07.

    
    

14. The Department has the duty to enforce the provisions of Chapter 479, which includes the administering and enforcing of the provisions of Governor's agreement under Section 479.02(2). "Spot-zoning" is not consistent with the orderly administration and enforcement of Chapter 479 or Title 23, U.S. Code and Title I of the Highway Beautification Act of 1965, and the Bradford County Zoning Commission, consistent with the state and federal law has indicated that outdoor advertising will not be allowed in its open rural areas.

RECOMMENDATION

Remove the sign of Respondent for intentionally erecting a sign in an unzoned rural area without a permit from the Department of Transportation.

Invoke the penalties provided in Section 479.18, Florida Statutes, for both the Petitioner and for the McDonald Corporation whose goods and services are advertised. Section 479.13, Penalties, provides:

Any person, violating any provision of this chapter whether as principal, agent or employee for which violation no other penalty is prescribed, shall be guilty of a misdemeanor of the second degree, punishable as provided in Section 775.083: and such person shall be guilty of a separate offense for each month during any portion of which any violation off this chapter is committed, continued or permitted. The existence of

any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon.

DONE and ORDERED this 13th day of March, 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

Rick Hurst, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Michael S. Nelson Lease Representative

Peterson Outdoor Advertising Corp.

P. O. Box 301

Ocala, Florida 32670

L. M. Gaines, Director

Bradford County Zoning Commission

P. O. Drawer B Starke, Florida 32091

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

IN RE:

PETERSON OUTDOOR ADVERTISING NOT EFFECTIVE UNTIL TIME

EXPIRES TO FILE FOR JUDICIAL

Petitioner, REVIEW AND DISPOSITION THEREOF IF FILED

vs.

FLORIDA DEPARTMENT OF TRANSPORTATION

Respondent.

/

CASE NO. 77-1432T

FINAL ORDER

The record in this cause has been reviewed along with the Recommended Order of the Hearing Officer.

The Findings of Fact and Conclusions of Law of the Hearing Officer are found to be correct and are adopted and made a part of this Order by reference.

The Recommendation of the Hearing Officer that the Final Order require removal of the subject sign is accepted, but the Department is not prepared to accept the further recommendation that invokes Section 479.18, Florida Statutes.

IT IS THEREFORE ORDERED that the subject sign be removed. DONE and ORDERED this 25th day of April, 1978.

TOM B. WEBB, JR. SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32304

COPIES FURNISHED:

Honorable Delphene Strickland Hearing Officer

Division of Administrative Hearings

Room 530, Carlton Building Tallahassee, Florida 32304

Michael S. Nelson Lease Representative

Peterson Outdoor Advertising Corp. Post Office Box 301

Ocala, Florida 32670

L. M. Gaines, Director

Bradford County Zoning Commission Post Office Drawer B

Starke, Florida 32091

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

Docket for Case No: 77-001432

Orders for Case No: 77-001432