Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: May 21, 1980
Summary: Petitioner's application for permit to build sign properly denied because it is in violation of spacing requirements.
79-2103.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NAEGELE OUTDOOR ADVERTISING ) COMPANY OF JACKSONVILLE, )
)
Petitioner, )
)
vs. ) CASE NO. 79-2103T
)
FLORIDA DEPARTMENT OF )
TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 11 March 1980 in Jacksonville, Florida.
APPEARANCES
For Petitioner: Julie H. Kuntz, Esquire
1500 American Heritage Building Jacksonville, Florida 32202
For Respondent: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
By letter dated 10 October 1979 Naegele Outdoor Advertising Company of Jacksonville, Petitioner, requested a public hearing to contest the Florida Department of Transportation's (Respondent) denial of its application for permit to erect an outdoor advertising sign on U.S. 1 near the intersection of University Boulevard in Jacksonville. The permit was denied because DOT determined the sign, if permitted, would be within 500 feet of an existing sign on the same side of the highway facing the same direction.
The parties stipulated that U.S. 1 is a federal-aid primary highway, the proposed sign is on the east side of U.S. 1 (Phillips Highway) facing south and
125 feet north of the intersection with SR 109 (University Boulevard) and the area is zoned industrial. Thereafter, one witness was called by Petitioner, one witness was called by Respondent and nine exhibits were admitted into evidence.
FINDINGS OF FACT
U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes.
University Boulevard (SR 109) is not a federal-aid primary highway.
Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing.
The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard.
Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by
48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit.
This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign.
The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction ever the parties and the subject matter of these proceedings.
Section 479.01(1), Florida Statutes, under Definitions, provides: "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. [Emphasis added].
Section 479.07, Florida Statutes, requires anyone erecting or maintaining a sign to secure a permit therefor. Accordingly, the Jack Bush sign on the non-federal-aid primary highway, University Boulevard, requires a permit because it is visible from U.S. 1, a federal-aid primary highway.
Section 479.02, Florida Statutes, authorizes DOT to regulate the spacing of signs and Rule 14-10.06(b)(3), Florida Administrative Code, provides that on federal-aid primary highways:
No two structures shall be spaced less than five hundred (500) feet apart on the same
side of the highway facing the same direction.
We are here involved with the interpretation of Rule 14-10.06(b)(3) above quoted. The same rules of construction are applicable in interpreting rules as are involved in statutory construction.
Sections 479.01(1) and 479.02, Florida Statutes, require signs on non- federal-aid primary highways which cross federal-aid primary highways and are clearly visible from the federal-aid primary highway to be permitted. The Jack Bush sign fits this category. These signs must therefore comply with the requirements for signs on federal-aid primary highways. Since the Jack Bush sign is within 500 feet of the proposed sign and on the same side of U.S. 1, the proposed sign violates the spacing rule above quoted if both signs face the same direction.
Respondent's long-standing practice is to designate, log and inventory all signs visible from federal-aid primary and Interstate highways and determine the direction from which they can be seen by travellers on the primary highway. This has resulted in the designation of the Jack Bush sign as a south-facing sign as seen from the primary highway, U.S. 1. This policy and practice of Respondent is of long standing. Such long-standing interpretations made by officials charged with the administration of the outdoor advertising sign statutes are entitled to great weight. Austin v. Austin, 357 2d 102 (Fla. 1st DCA 1977). Such long-standing construction by those charged with the administration [of the outdoor advertising sign statutes and regulations] should be followed unless there are compelling indications that such construction is wrong. E. I. DuPont de Nemours & Co. v. Collings, 53 L. Ed. 2d 100 97 S. Ct. 2229 (U.S. 1977). No such compelling reasons were presented. The fact that this sign actually faces west and is seen from a north-south federal-aid primary highway does not obviate the fact that insofar as the facing of the sign along
U.S. 1 is concerned it must be considered north, south, both or neither. Here the long-standing practice followed by Respondent is to give such a sign a facing as seen from the direction of travel of the closest lane of traffic to the sign. Since this traffic is moving north the sign is deemed south-facing by Respondent.
Respondent, after designating the Jack Bush sign as a south-facing sign permitted a north-facing sign applied for by Petitioner, which is less than
500 feet from the Jack Bush sign and on the same side of U.S. 1. According to Respondent's interpretation of the statutes and rules this sign was permittable because it was not facing in the same direction as the Jack Bush sign. In so holding Respondent is consistent in its interpretation of the permitting requirements.
From the foregoing it is concluded that the south-facing sign for which Petitioner requested a permit is within 500 feet of a permitted sign on the same side of a federal-aid primary highway facing in the same direction and is not permittable. It is therefore
RECOMMENDED that the application of Naegele Outdoor Advertising for a south-facing sign along U.S. 1 in Jacksonville, 150 feet north of the intersection with University Boulevard be denied.
Entered this 31st day of March, 1980.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Julie H. Kuntz, Esquire
1500 American Heritage Building Jacksonville, Florida 32202
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
NAEGELE OUTDOOR ADVERTISING COMPANY OF JACKSONVILLE,
Petitioner,
vs. CASE NO. 79-2103T
FLORIDA DEPARTMENT OF TRANSPORTATION
Respondent.
/
FINAL ORDER
The record in this cause and the Recommended Order of the Hearing Officer have been reviewed. The pertinent Findings of Fact made by the Hearing Officer are supported by the record and the conclusions of Law are in accord with the facts; the recommendation that the application of Petitioner be denied necessarily follows. The Recommended Order is incorporated herein and made a part of this Final Order.
Petitioner has filed Exceptions to Recommended Order and Request for Hearing which are considered here in the order presented.
If the Hearing Officer erred in finding that Petitioner has a structure on the site in question, such error did not prejudice Petitioner. Such a finding was not material to the issue; a contrary finding could not affect the decision of the Hearing Officer.
The proposed finding of Fact No. 4 that the "WAPE" sign faces in a westerly direction; of Fact No. 5, that the application or a permit for the "Bush" sign designates that the sign faces west; of Fact No. 8, that Mr. Foster testified concerning 660 feet set back requirements, were not necessary to a determination of the issue.
Proposed finding of Fact No. 9, that the Department of Transportation had not adopted by formal rule its practice of interpreting another rule, while not explicitly set out in the Recommended Order, is implicitly recognized by the Hearing Officer in the Recommended Order.
The statement by the Hearing Officer that the policy in question is a long standing practice is supported by the record. (Transcript, pps. 34, 35.)
Petitioner asserts that since the Hearing Officer recognizes that a specified sign faces west, he is precluded from also finding that the same sign is south facing in relation to traffic on tee highway. The Hearing Officer explains his reasoning on page 5 of the Recommended Order and Petitioner's assertion that such conclusion is unfounded is not correct.
Petitioner's general statement is covered in detail under (c) and (d) below.
Again, Petitioner asserts that where there is evidence that signs face a specified direction, such evidence must be compelling. Again, the answer is that this does not compel a finding that the signs face exclusively a precise compass direction.
Petitioner asserts that the practice followed by the Department in determining the direction or directions in which a sign faces constitutes the promulgation of a rule. But it is the existing rule which requires that the Department make a determination of the direction in which a sign faces. The practice followed by the Department is responsive to the requirements of the rule and the statutes authorizing the adoption of the rule as set out by the Hearing Officer (Recommended Order, pps. 3 and 4), and is not in itself a rule.
and d. Petitioner argues at length that the Hearing Officer erred in his conclusion that the practice of the Department in administering the rule in question should be given great weight and attempts to distinguish the cases cited by the Hearing Officer. The statement by the Hearing Officer as to the applicable law is correct and is supported by the cases cited; the argument of Petitioner is without merit.
Petitioner goes on to complain that the Department is defining the word "direction" as used in Rule 14-10.06(b)(3) in a way which conflicts with the definition as set out in Webster's Dictionary. The definition is as follows:
"Direction - the line or course on which something is moving or is aimed to move or along which something is pointing or facing; a line or course extending away from a given
point through space and often designated by the point of the compass toward which it extends." Webster's Third New International Dictionary (Unabridged 1971)
The Department has no quarrel with this definition. In fact, the practice of the Department in finding the direction or directions in which a sign faces under the rule in question is entirely consistent with this definition. The rule states:
No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction.
Rule 14-10.06(b)(3)
The Department's practice is clearly to find that where the face of a sign is visible from the highway along a ". . .line or course extending away from a given point through space then the direction is. . .designated by the point of the compass toward which it extends." All in accord with the definition.
To adopt Petitioner's contention that outdoor advertising sign must be considered as facing only in one precise compass direction would subvert entirely the rule in question. Any number of signs could be placed along a 500 foot strip of highway so long as the precise direction in which any one sign faced was a few degrees from the precise direction any other sign faced.
Clearly it is the intent of the rule to prohibit just such a situation and the practice of the Department to which Petitioner objects is required by the rule.
In the instant case there is an existing sign, the face of which is visible from north-bound traffic on the highway. The sign is therefore designated as facing south. The construction of a new sign within 500 feet on the same side of the highway facing south would be a violation of the rule and cannot be permitted.
Petitioner's Request for Hearing on the Exceptions to Recommended Order or, in the alternative, a stay of entry of a Final Order is denied.
The application of Petitioner for a permit to construct a sign at the subject location is denied.
Done and Ordered this 19 day of May, 1980.
WILLIAM N. ROSE SECRETARY
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301
COPIES FURNISHED:
K.N. Ayers, Esquire Hearing Officer
Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301
Dave Leighow, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Julie H. Kuntz, Esquire
1500 American Heritage Building Jacksonville, Florida 32202
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Docket for Case No: 79-002103
Orders for Case No: 79-002103
| Issue Date |
Document |
Summary |
|
May 19, 1980 |
Agency Final Order
|
|
|
Mar. 31, 1980 |
Recommended Order
|
Petitioner's application for permit to build sign properly denied because it is in violation of spacing requirements.
|
