STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2386T

)

BILL REDDICK d/b/a )

ARROWHEAD CAMPSITES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held on February 5, 1979, at 2:00 o'clock p.m. in Room 104 Collins Building, Gaines and Adams Streets, Tallahassee, Florida, before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: James P. Appleman, Esquire

Post Office Box 385 Marianna, Florida 32446

ISSUE

Whether the outdoor advertising sign of Respondent should be removed for lack of an outdoor advertising permit and for being erected without a permit within the prohibited distance of an interstate highway.

FINDINGS OF FACT

1. A violation notice and Notice to Show Cause dated August 3, 1978, was served upon the Respondent charging him with violation of Chapter 479, Florida Statutes, Sections 335.13 and 339.301, Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code. The sign in question carries the copy "Arrowhead Campsites" and is located 0.5 mile west of U.S. Highway 231 on Interstate Highway 10. An administrative hearing was requested on the charges.

   
   

2. A billboard advertising Arrowhead Campsites has been erected within the past three years in Jackson County, Florida, about one-half mile west of U.S.

   231 on the south side of Interstate 10. The sign is approximately fifteen (15) feet south of a fence located within the right-of-way of Interstate 10. The outdoor advertising is approximately one hundred (100) feet from the edge of the

   interstate highway and is clearly visible to the public traveling on the interstate. It obviously was erected to advertise the campsites to those traveling on the federal highway. The sign is located on private property in a rural area along the interstate highway.

   
   

3. No outdoor advertising permit is attached to the subject sign, and no application has been made to the Florida Department of Transportation for a permit for subject sign.

   
   

4. It was stipulated that the Respondent, Bill Reddick, is the husband of the owner of Arrowhead Campsites, and that Mr. Reddick accepted service of the notice and the notice has not been questioned.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 479.01 Definitions.-- provides in Part:

   
   

   1. "Sign" means any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, or other thing, whether placed individually or on a V-type, back-to-back, or double-faced display, designed, intended, or used to advertise or inform, any part of the advertising or informative contents of which is visible from any place on the main-traveled way of the interstate, federal-aid primary highway system or the state highway system.

      
      

6. The subject structure is a sign within the definition of the foregoing statute.

   
   

7. Section 479.01, supra, also provides in part:

   
   

   (15) "Maintain" means to allow to exist.

   
   

8. The subject sign is being maintained along the south side of Interstate

   10.

   
   

9. Section 479.01 further Provides in part:

   
   

   (17) "Visible" means that the advertising copy of informative contents, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity.

   
   

10. The subject sign is visible by persons of normal visual acuity

    traveling on Interstate 10.

    
    

11. Section 479.07 Individual device permits; fees; tags.-- provides in part:

    
    

    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.

       
       

12. Subject sign has been constructed and erected, and is used and maintained as an outdoor advertising sign outside any incorporated city or town. No permit was obtained from the Petitioner, Department of Transportation, to construct or erect said sign, and no fee has been paid. No application for a permit was filed with the Petitioner.

    
    

13. Section 479.11 Certain outdoor advertising prohibited.-- provides in part:

    
    

    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 s. 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, 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).

       
       

14. Respondent has erected its advertising sign within 660 feet of the nearest edge of the right-of-way of Interstate 10 outside an urban area for the

    purpose of its message being read from the main-traveled way in violation of (1) and (2) of the foregoing statute. The exceptions of Sections 479.111 or 479.16 are not applicable.

    
    

15. Section 479.18 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 s. 775.083; and such person shall be guilty of a separate offense for each month during any portion of which any violation of 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.

    
    

16. Section 479.20 Duty of department.-- provides: The department shall enforce this law.

RECOMMENDATION

Remove the subject sign without compensation therefor and assess penalties as provided in Section 479.18, Florida Statutes.

DONE and ORDERED this 9th day of April, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1979.

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation

Haydon Burns Building Tallahassee, Florida 32304

James P. Appleman, Esquire

206 Market Street Post Office Box 355

Marianna, Florida 32446

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

Docket for Case No: 78-002386

Orders for Case No: 78-002386