STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2421T

) and 79-0097T NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these cases on May 22, 1981, in Lake City, Florida. 1/ The parties waived the thirty

1. day requirement for the issuance of a Recommended Order as provided in Rule 28-5.402, Florida Administrative Code.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Esquire

   Department of Transportation The Haydon Burns Building Tallahassee, Florida 32301

   
   

   For Respondent: William D. Rowland, Esquire

   Post Office Box 539

   115 East Morse Boulevard Winter Park, Florida 32790

   
   

   ISSUE

   
   

   At issue herein is whether or not the Petitioner is entitled to an order, requiring the removal of two signs involved herein which are owned by Respondent, pursuant to the Highway Beautification Act or Chapter 479, Florida Statutes, and if so, whether or not the Respondent is entitled to compensation from Petitioner for the value of such signs.

   
   

   FINDINGS OF FACT

   
   

   1. Based upon the testimony adduced at the hearing, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. At the commencement of the hearing, the parties stipulated that the Respondent, National Advertising Company, is the owner of certain outdoor advertising signs located in the City of Jacksonville, Florida. The parties also stipulated that Interstate 95 is part of the interstate highway system; that the two signs in question can be seen from Interstate 95 and the signs are located within 660 feet of the road's right-of-way. The parties also stipulated that only the poles which are used to erect the signs were in place prior to

      midnight on December 8, 1971. It appears that the poles were erected sometime during 1968, and that faces were added to the poles during the spring of 1972. The signs are located at .43 miles North of Pecan Park Road and .73 miles North of Pecan Park Road, respectively, adjacent to Interstate percent Highway 95.

      
      

   2. The Petitioner, Florida Department of Transportation, takes the position that since the faces were not on the signs prior to midnight on December 8, 1981, pursuant to Chapter 479, Florida Statutes, it is entitled to the entry of an order requiring removal of the signs by Respondent without any compensation for the signs whatsoever.

      
      

   3. Respondent, through counsel, moved that the hearing be dismissed on the ground that the Division of Administrative Hearings lacked jurisdiction to hear such matters, in that the signs may be removed only by proceeding under Florida's eminent domain law. 2/

      
      

   4. It is undisputed that the signs involved are located within prohibited distances as provided in Chapter; 479.11, Florida Statutes. They are, therefore, a nonconforming structure as provided for within the terms of Chapter 479, Florida Statutes.

      
      

   5. In view of the stipulated facts, the structures involved herein do not constitute signs within the meaning of Chapter 479, Florida Statutes, since prior to midnight on December 8, 1971, all that existed of those structures were poles. See A. W. Lee, Jr. v. Reubin O'D. Askew, Case No.2-1798 (2nd DCA, 1979). Within the next year, however, Respondent erected advertising displays which had informative contents that were visible from the main traveled way. At that point, the structures herein became nonconforming outdoor advertising signs and were thereafter required to comply with pertinent State law in effect on that date.

CONCLUSIONS OF LAW

6.. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapters 120.57(1) and 479, Florida Statutes.

1. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

2. Chapter 479.11, Florida Statutes, provides, in pertinent part, that:

   
   

   No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   1. within (360 Feet of the nearest edge of the right-of-way of all portions of the interstate system . .

      
      

3. As to the subject signs, they are clearly an outdoor advertising sign which is prohibited by the referenced chapter. As such, they become subject to the removal and compensatory provisions provided in Chapters 479.23 and 479.24, Florida Statutes. Those chapters provide, in pertinent part, that all signs which are lawfully in existence or are lawfully erected and which do not conform to the provisions of this chapter shall not be required to be removed by the Department until after the end of the fifth year after they have become nonconforming. Chapter 479.23, Florida Statutes. The signs involved herein

have been in existence for the five-year period during which they have become nonconforming within the provisos of Chapter 479.23, Florida Statutes.

Therefore, upon removal by Petitioner, the Respondent, as owners of signs will be entitled to compensation as provided in Chapter 479.24, Florida Statutes.

Compensation for any sign erected or completed after December 8, 1971, "shall be limited to the actual replacement value of the materials in such sign." Chapter 479.24(1), Florida Statutes. It is so recommended.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Petitioner, upon removal of the signs, remit to the Respondent compensation in the amount of the actual replacement value of the materials used in the signs. It is further recommended that compensation be made pursuant to the State's eminent domain procedures. 3/

RECOMMENDED this, 25th day of September, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1981.

ENDNOTES

1/ Pursuant to leave, the parties were afforded leave to submit posthearing memoranda supportive of their respective positions. Said memoranda were received by the undersigned on July 20, 1981, and were considered by me in preparation of this Recommended Order. To the extent that the proposed findings and conclusions are not incorporated herein, said findings and conclusions are rejected or were deemed to be not relevant to the issues in these cases.

2/ The Motion to Dismiss for lack of jurisdiction by this Division was denied by the undersigned on the theory that Chapter 120.57(1), Florida Statutes, authorizes a Petitioner to invoke the formal hearing procedures set forth in Chapter 120.57(1), in instances such as those presented herein. Respondent, through counsel, has asserted that its substantial interests would be determined and/or affected by Petitioner's requested action.

3/ Chapters 73 and 74, Florida Statutes.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation The Haydon Burns Building Tallahassee, Florida 32301

William D. Rowland, Esquire Post Office Box 539

East Morse Boulevard

Winter Park, Florida 32790

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

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 78-2421T

78-0097T

NATIONAL ADVERTISING COMPANY,

Respondent.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the recommended Order of the Hearing Officer. The Exceptions to the Recommended Order filed by Petitioner have been considered, accepted, and given effect in this Final Order.

The Findings of Fact of the Hearing Officer are supported by the record except for the statement of the Hearing Officer that,

"In view of the stipulated facts, the structures involved herein do not constitute signs within the meaning of Chapter 479, Florida Statutes, since prior to midnight on December 8, 1971, all that existed of those structures were poles."

which Petitioner does not consider to be a fact, but to be an unwarranted conclusion of the Hearing Officer.

With the exception noted, the Petitioner accepts the Findings of Fact of the Recommended Order, copy attached, and adopts them as a part of this order.

The Conclusions of Law of the Hearing Officer are accepted as correct to the extent that he concludes that the signs are subject to removal under the provisions of Chapter 479, Florida Statutes; the Department rejects the conclusion that the sign owners are entitled to compensation as provided in Section 479.24, Florida Statutes.

In order for a sign owner to be entitled to compensation under the provisions of Section 479.24, Florida Statutes, the sign must have been lawfully erected in the first instance. LaPoint Outdoor Advertising v. Florida Department of Transportation, 398 So2d 1370 (Fla. 1981).

The Hearing Officer states page No. 3 of Recommended Order: "It is undisputed that the signs involved are

located within prohibited distances as provided

in Chapter 479.11, Florida Statutes. They are, therefore, a nonconforming structure as provided for within the terms of Chapter 479, Florida Statutes.

In the next paragraph, the Hearing Officer makes the statement previously quoted:

"In view of the stipulated facts, the structures involved herein do not constitute signs within the meaning of Chapter 479, Florida Statutes, since prior to midnight on December 8, 1971, all that existed of those structures were poles".

The Hearing Officer seems to reason that since there is authority for the position that the erection of poles by an outdoor advertising company does not constitute the erection of an outdoor advertising sign subject to the provisions of Chapter 479, Florida Statutes and such poles may be considered as lawfully erected, then, when the sign company at a later date uses the poles as part of the construction of what is recognized to be an outdoor advertising sign, the entire structure is to be considered as lawfully in place. This even though the Hearing Officer states (page No. 4) "as to the subject sign, they are clearly an outdoor advertising sign which is prohibited by the referenced chapter".

The Petitioner rejects this reasoning. The finished product is undoubtedly an outdoor advertising sign; it is at a location prohibited by statute. Whether erected in one or two stages, the Respondent has in the words of Section 479.11, Florida Statutes, "...constructed, erected, used, operated, or maintained..." an advertising structure at a location prohibited by the statute. The structure was not lawfully erected so as to come within the provisions of Section 479.24 for compensation upon removal.

Accordingly, the signs are ordered removed with no compensation to be paid by Petitioner.

DONE and ORDERED this 6th day of November, 1981.

FLORIDA DEPARTMENT OF TRANSPORTATION

By: Jacob D. Varn

Secretary

Copies furnished to:

James E. Bradwell, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

William D. Rowland, Esquire Post Office Box 539

115 East Morse Boulevard Winter Park, Florida 32790

Charles G. Gardner, Esquire Department of Transportation The Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 78-002421

Orders for Case No: 78-002421