STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERMAN CORN, AS TRUSTEE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-403T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on April 15, 1980, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on a Notice of Violation filed by the Department of Transportation alleging that the signs in question were in violation of Section 479.111(2) [sic] , Florida Statutes. The issue is whether the signs are in violation of Section 479.11, Florida Statutes.

APPEARANCES

For Petitioner: E. J. Generotti, Esquire

500 Center Court Building 2450 Hollywood Boulevard Hollywood, Florida 33020

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

FINDINGS OF FACT

1. Herman Corn, as Trustee, is the owner of two outdoor advertising signs in Palm Beach County, Florida, which have been cited for violation of Section 479.111(2), Florida Statutes. The first outdoor advertising sign in question is located on the east side of US Highway 441 south of State Road 808 (sign #1). The second outdoor advertising sign in question is located on the south side of State Road 808 east of US Highway 441 (sign #2). George King is an employee of the Department of Transportation with the assigned duty of being an outdoor sign inspector. Fred J. Harper is an employee with the Department of Transportation with the assigned duty of being the District Administrator of Outdoor Advertising. Stephen H. Corn is Vice-President and General Manager of Corn Construction, as well as the manager and part-owner of Boca Tierra.

1. Herman Corn applied for and received permits to erect signs #1 and #2 in their respective locations from Palm Peach County, Florida.

   
   

2. George King testified that he cited the signs for violation of Section 479.111(2), Florida Statutes, inasmuch as they were located on federal-aid

   primary highways and in an area zoned agricultural, and as such were illegal. After his initial inspection, King determined the lands upon which the subject signs are located are zoned agricultural by inspection of the zoning records of Palm Beach County.

   
   

3. The Palm Beach County Zoning Maps showing the zoning classification of agricultural for the subject parcels of real property were inspected by George King. Copies of these maps, which were made and certified three weeks before the date of hearing, were received as Exhibit B, pages 1 and 2.

   
   

4. Fred Harper testified as to the origin and use of Federal Highway System Maps, which give an up-to-date list of federal-aid primary highways. The maps reflecting the list of federal-aid primary highways were received as Exhibit #1. Harper, utilizing Exhibit #1, testified that State Road 7 is listed on Exhibit #1 as a federal-aid primary highway. Exhibit #1 reflects that State Road 808 is a federal-aid primary highway.

   
   

5. Official notice was taken at the hearing of the Agreement established by Section 479.02, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

6. The signs in question are alleged to be in violation of Section 479.111(2), Florida Statutes. Section 479.111(2), supra, cannot be violated because it establishes exceptions to Section 479.11, Florida Statutes. Technically, the violation would be of Section 479.11, Florida Statutes; however, the parties were aware of the nature of the violation asserted.

   
   

7. Section 479.11, Florida Statutes, provides as follows:

   
   

   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. 479.222, 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). 1/

      
      

8. The agency must show that the signs in question were along a federal- aid primary highway or interstate highway, that the signs' faces were readable from the traveled way of the federal-aid primary or Interstate highway and that

   the signs did not meet any of the exceptions of Section 479.111, Florida Statutes. The Petitioner suggests that the Department of Transportation's failure to prove how far the signs were from the right-of-way was fatal to its proof of a violation. However, in this instance it is not material under the facts proven by the Department how far the signs are from the highway.

   
   

9. The statute prohibits all signs outside 660 feet of an interstate highway or federal-aid primary highway which are readable from said highway where the sign is located in a non-urban area. The signs in question are located on a federal-aid primary highway in a non-urban area and readable from the federal-aid primary highway. If the signs exist, they must be ether within 660 feet or outside 660 feet from the highway. If they are outside 660 feet, the facts show them to be in violation. If they are within 660 feet of the highway, they are prohibited unless they meet the exceptions of Section 479.111, Florida Statutes.

   
   

10. The exceptions of Section 479.111(2), Florida Statutes, would permit signs within 660 feet of the right-of-way which are located in commercial and industrial zones or unzoned commercial add industrial zones. The other exceptions provided in Section 479.111, supra, are not applicable to the signs in question. The area in question is zoned agricultural and was zoned agricultural at the time the signs were originally cited. Not meeting any of the exceptions of Section 479.111, Florida Statutes, the signs would be prohibited if they were within 660 feet of the right-of-way. Therefore, under the facts presented, the signs are prohibited whether outside or inside 660 feet of the highway.

    
    

11. The Petitioner also suggests that no evidence was introduced that State Road 808 and US Highway 441 were federal-aid primary highways. Exhibit #1 clearly reflects that State Road 808 and US Highway 441 are federal-aid primary highways at the points where the signs in question are located.

    
    

12. The Department of Transportation has shown a violation of Section 479.11, Florida Statutes. Although the Department alleged violation of Section 479.111, Florida Statutes, in its Notice of Violation, as stated above Section 479.111, supra, technically cannot be violated because it is an exception to Section 479.11, Florida Statutes. However, the citation of Section 479.111, supra, is not fatal to the Notice of Violation because the Petitioner was fairly apprised of the nature of the violation, and a violation of Section 479.11, Florida Statutes, was proven. The signs in question cannot be permitted because they are prohibited by law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the signs in question be removed.

DONE and ORDERED this 5th day of June, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ Other provisions of Section 479.11 and Section 479.16(1) or (3), Florida Statutes, are not in issue.

COPIES FURNISHED:

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

E. J. Generotti, Esquire Center Court Building 2450 Hollywood Boulevard Hollywood, Florida 33020

Docket for Case No: 79-000403

Orders for Case No: 79-000403