STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-096T

)

WAYFARA, INC., )

)

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 this case on May 22, 1981, in Lake City, Florida. Following the hearing, the parties were afforded leave to submit post-hearing 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.

During the hearing, the Parties also waived the thirty (30) day requirement for the rendition of the Recommended Order as required by Rule Chapter 28-5.402, Florida Administrative Code.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: William D. Rowland, Esquire

115 East Morse Boulevard Post Office Box 539

Winter Park, Florida 32790 ISSUES

At issue herein is whether or not poles which are erected with the intent of putting advertising messages on them are signs within the intent of Chapter 479, Florida Statutes. Secondly, if such poles are not signs, whether or not the Department of Transportation is entitled to an order authorizing it to remove such structures when advertising messages are placed on them, and they fail to comply with pertinent laws, and finally, whether or not the Respondent, upon removal of such signs by Petitioner, is entitled to compensation for those signs.

FINDINGS OF FACT

1. Based upon the testimony adduced at the hearing, the documentary evidence received, and the entire record compiled herein, and after consideration of the parties' memoranda, the following relevant facts are found. 1/

   
   

2. At the commencement of the hearing, the parties stipulated that the Respondent is the owner of three outdoor advertising signs located in the City of Jacksonville, Florida; that I-95 is part of the Interstate highway system; that the signs are located within the prohibited distances sat forth in Chapter 479.11, Florida Statutes, and that the signs are constructed to be seen from the main-traveled way of the interstate highway. It appears that the poles and stringers were erected some weeks prior to the December 8, 1971 moratorium for sign construction adjacent to certain roadways, and that a face was added to the signs during the Spring of 1972. The signs are located approximately 3.07 miles North of Pecan Park Road; 2.29 miles North of Pecan Park Road; and 1.02 miles North of Pecan Park Road, adjacent to Interstate Highway 95. (By stipulation of the parties, and testimony of Jack L. Foster, outdoor inspector for Petitioner.) Inspector Foster, as part of his official duties, inspected and first became aware of the poles for the signs in question within a few weeks following the December 8, 1971 moratorium. At that time, at least one of the signs had only three poles erected, and the remaining two had the required six poles in place. Periodic visits to the bite of the stringers by Inspector Foster revealed that on July 13, 1972, two advertising faces had been placed on the signs located at

   1.02 and 3.07 miles North of Pecan Park Road. A subsequent visit during the following week, i.e., on July 18, 1972, revealed that the remaining advertising display had been placed on the remaining sign. Based on Inspector Foster's examination of the zoning and building requirements for the City of Jacksonville, he observed that the subject signs could not be permitted because they failed to satisfy the city's zoning requirements. (Petitioner's Exhibits A, B, C, and D which were received into evidence over objection of Respondent's counsel.)

   
   

3. At the conclusion of Petitioner's case, Respondent, through its counsel, moved for a dismissal on the ground that the Division of Administrative Hearings lacked jurisdiction over such matters inasmuch as the Division lacked authority, pursuant to Chapter 479.24(2), Florida Statutes, to order removal of the signs in question from real property under Florida's eminent domain law. 2/

   
   

   CONCLUSIONS OF LAW

   
   

4. 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.

   
   

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

   
   

6. The authority of the Petitioner is derived from Chapter 479, Florida Statutes, and the implementing rules and guidelines set forth in Rule Chapter 14-10, Florida Administrative Code.

   
   

7. 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 660 feet of the nearest edge of the right-of-way of all portions of the Interstate system....

      
      

8. The stipulated facts herein reveal that the signs in question are all located within the prohibited distances as set forth in the above-referenced chapter. Therefore, they are a nonconforming structure as provided for within the terms of Chapter 479.23, Florida Statutes.

   
   

9. Chapter 479.24 provides in pertinent part that:

   
   

   1. Compensation shall be paid upon the removal of all signs lawfully in existence

      on December 8, 1971 or signs lawfully erected which later become nonconforming. Compen- sation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such signs. It Is the legislative intent

      that any person erecting or completing such signs after December 8, 1971 shall be fully compensated by the method herein provided. See: A. W. Lee, Jr. v. Reubin O'D. Askew, Governor of the State of Florida, et al. Case No. 72-1798 (2nd DCA, 1979); Brazil v. Divi- sion of Administration, State Department of Transportation, 347 So.2d 755 (1977).

      
      

10. Since the subject signs were constructed subsequent to the December 8, 1971 moratorium, it is concluded that Respondent is entitled to have a right of compensation for the costs of the materials in the signs in keeping with the State's eminent domain procedures set forth in Chapters 73 and 74, Florida Statutes. It is so concluded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

That the Petitioner enter a final order authorizing it to remove the signs in question. Upon removal of the signs, it is further RECOMMENDED that Petitioner remit to Respondent, compensation to the extent of the materials used for construction of the signs in keeping with the State's eminent domain Procedures set forth in Chapters 73 and 74, Florida Statutes.

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 28th day of September, 1981.

ENDNOTES

1/ To the extent that the parties' proposed findings and conclusions are not incorporated in this Recommended Order, said proposed findings and conclusions are specifically rejected or were deemed not relevant to the issues posed herein.

2/ An examination of that statute only sets forth the manner in which compensation shall be made pursuant to the State's eminent domain procedures set forth in Chapters 73 and 74, Florida Statutes. Respondent's Motion to Dismiss was denied since it alleged during the hearing and in its pleadings herein that its substantial interests would be affected or determined by Petitioner's intended action. Chapter 120.57(1), Florida Statutes.

COPIES FURNISHED:

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

William D. Rowland, Esquire

115 East Morse Boulevard Post Office Box 539

Winter Park, Florida 32790

Docket for Case No: 79-000096

Orders for Case No: 79-000096