STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2100T

)

RICH'S TRUCK STOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in the Department of Transportation District Office Conference Room, Chipley, Florida, on May 4, 1978, commencing at 10:30 a.m., before Delphene C. Strickland, State Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John J. Rimes, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32304

For Respondent: Russell A. Cole, Jr., Esquire

123 North Oklahoma Bonifay, Florida 32425

ISSUE

Whether the Respondent is in violation of Chapter 479.07, 479.07(1), 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

1. Petitioner contends: that subject outdoor advertising sign is in a rural area along the Interstate Highway system; that the only visible structure is a wholesale chicken house and therefore can not be considered in an unzoned commercial area; that the sign is not in an urban area properly zoned to permit outdoor advertising.

   
   

2. Respondent contends: that the offending structure is primarily a trailer and not a sign, that it is in an unzoned commercial area; and that as a sign it falls within the exception of Section 479.16(11), Florida Statutes.

FINDINGS OF FACT

1. Respondent, Rich's Texaco Truck Stop, is the owner of a trailer, located in Holmes County, Florida near Interstate 10, approximately 9/10 of a mile West of State Road C-181, which has the following written on the side of

   said trailer: "Portable storage leased from Rich's Texaco Truck Stop Exit 79, Bonifay, Florida."

   
   

2. Land upon which the above mentioned trailer-sign is located is in an unzoned area within the municipal limits of Westville, Florida, but there is no urban development visible from Interstate 10.

   
   

3. At the time the violation notice was sent to Respondent on November 22, 1977, said trailer-sign was located approximately 16 feet from the fence marking the right-of-way of Interstate 10. At the time of hearing it was approximately

   5 feet from the right-of-way.

   
   

4. The trailer-sign is located within 100 feet of a structure used primarily for the business of raising chickens but is not in an unzoned commercial area.

   
   

5. Said trailer with similar sign painted thereon was the subject of a prior hearing and by final order dated April 5, 1977, the Respondent was ordered to obliterate the sign. A copy of said order is attached hereto and made a part hereof. Subject sign merely bears different copy but advertises the same business owned by the same parties.

   
   

6. The owner admitted that the trailer could he rented but that its primary purpose was to advertise Rich's Truck Stop.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 479.02, Florida Statutes, Enforcement of Provisions by the Department provides in part:

   
   

   It shall be the function and duty of the department to:

   1. Administer and enforce the provisions of this chapter including, hut not limited to, executing agreements in conjunction with the governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 28, U.S. Code.

      
      

8. The agreement executed pursuant to the foregoing section on July 27, 1972, (the full text of which can be found in Chapter 14-10.09, Florida Administrative Code) provides in part:

   
   

   Section III, State Control

   The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria:

   A. In zoned commercial and industrial areas, the State may notify the Administrator as

   notice of effective control that there has been established within such areas regulations which are enforced with respect to size, lighting, and spacing of outdoor advertising

   signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply.

   
   

9. Thus, local units of government, including Westville, Florida and Holmes County, must submit their zoning regulations to the Florida Department of Transportation, which is charged with, the enforcement of all laws and rules involving outdoor advertising, for its review. The Department of Transportation must in turn notify the federal highway administrator that there has been established within the zoned areas enforced regulations consistent with state laws and the Highway Beautification Act. Neither the City nor the County has complied with the foregoing requirements. Cf. Florida Department of Transportation v. Cannon Motel, Inc., 41 FDOAH 145, Case No. 77-1047. Westville has not submitted outdoor advertising zoning regulations to the state for its approval.

10. Section 479.11, Florida Statutes, provides in part: 479.11, 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 Sec. 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, A public reservation, public playground, 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 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 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).

       
       

11. The foregoing statute prohibits outdoor advertising signs 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. Petitioner is in violation of the foregoing subsection (1). It appears that the area in which the outdoor advertising sign is located is not an "urban area" and therefore Respondent is also in violation of the foregoing subsection (2).

12. Section 479.16, Florida Statutes, provides in part:

    
    

    1. Certain advertisements excepted.- The following advertisements, advertising signs and the advertising structures, or

       parts thereof, upon which they are posted or displayed, are excepted from all the provisions of this chapter except those contained in Sec. 479.11(3)-(5).

       1. Those constructed by the owner or lessee of a place of business or residence on land belonging to said owner or lessee and not

    more than 100 feet from such place of business or residence, and relating solely to merchandise, services or entertainment sold, produce manufactured or furnished at such place of business or residence, are excepted from the permit fee, but do not exempt the license of a contractor who is engaged in the manufacture, erection or maintenance of such advertising sign;

    * * *

    (11) Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises;

    
    

13. Under the foregoing statute the Respondent would be allowed to advertise chickens or eggs with a sign not more than 100 feet from the building in which said chickens and eggs are produced if said produce was sold at the site of the buildings. If trailers for "portable storage", can be rented from Respondent, as he testified the trailer could be, said rental office could be advertised as long as it complies with the 100 foot requirement of the foregoing Subsection (1). A sign bearing the name of the Rich partners would be the only sign permissible under Subsection (11).

    
    

14. A sign with the information that there is a truck stop at an exit violates the letter and the spirit of the statute and would be a subterfuge. It is obvious that the sign that is painted on the side of the mobile trailer was erected for the purpose of advertising and the owner so testified at the administrative hearing. The sign has as its purpose to advertise "Rich's Texaco Truck Stop, Exit 79, Bonifay, Florida" and the sign in this hearing and in the previous hearing was used for the express purpose of advertising Respondent's truck stop. It is a mobile sign and is moved from time to time but is and has been in violation of the foregoing subsections and is and has been in violation of Section 479.07, which prohibits the erection of outdoor advertising signs without obtaining a permit from the Petitioner, Department of Transportation. Such application was made by Respondent and was correctly refused by the Petitioner for the reason that the advertising of the truck stop violates the cited sections of Chapter 479.

RECOMMENDATION

Remove the sign of Respondent together with the trailer used as a billboard structure within ten (10) days after entry of the final order if Respondent has not previously removed said structure and sign. If Respondent displays a similar sign near the truck stop along the interstate highway system contrary to

Chapter 479, Florida Statutes, at a subsequent time to this recommended order, invoke the penalties as provided by Section 479.18, Florida Statutes.

DONE AND ENTERED this 18th day of July, 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:

John J. Rimes, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32304

Russell A. Cole, Jr., Esquire

123 North Oklahoma Bonifay, Florida 32425

Docket for Case No: 77-002100

Orders for Case No: 77-002100