STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-099T

) HENDERSON SIGNS (0.6 mile west )

of SR 69, facing east), )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing in this case was held pursuant to notice on April 22 and 23, 1981, in Chipley, 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 on Henderson Signs alleging that the subject sign was in violation of Chapter 479, Florida Statutes, and seeking the removal of said sign.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Charles M. Wynn, Esquire

310 Jackson Street Post Office Box 793

Marianna, Florida 32446

This case was one of several similar cases docketed for hearing on April 22 and 23, 1981. After testimony was received in Case No. 81-099T, which was generally applicable to all the other cases, it was agreed that the portion of the testimony relating to the status of the highway known as 1-10 would be adopted as to the other cases pending (Cases No. 81-100T through 81-107T). It was further agreed that testimony specifically related to individual signs would be received regarding that particular sign. The parties stipulated that the signs were at the locations stated in the Notice of Violation.

The Department presented evidence showing that the subject sign was an outdoor advertising sign within the meaning of Chapter 479, Florida Statutes, was not permitted as required by said statute, and no permit had ever been requested for the sign. Evidence was also received that Henderson Signs was responsible for erection of this sign and had a proprietary interest in the sign.

Henderson Signs introduced evidence that it had erected the poles for the subject sign between June, 1975, and June, 1976, and subsequently affixed an advertising message to the poles.

In rebuttal, the Department offered the testimony of two witnesses that the advertising messages were not affixed to the poles until after the highway was opened to the public and offered aerial photographs taken in 1979 of the subject sign's location which do not show any indication of poles or a sign at the subject location.

ISSUE

Based upon the testimony received the primary issue is whether the poles were erected before the highway, 1-10, was opened to the public.

If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?

FINDINGS OF FACT

1. The subject sign is located 0.6 mile west of State Read 69 on the north side of 1-10. This sign was inspected on October 3, 1978, by an inspector of the Department of Transportation, who observed that the sign's massage was visible from the main traveled way of 1-10 and did not bear the permit required by Chapter 479, Florida Statutes. At the time of the inspection, 1-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit

   1 and DOT Exhibit 3. The sign was located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See file, Case No. 81-099T.

   
   

2. The foregoing facts establish that the subject sign is a sign regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the sign.

   
   

3. Henderson Signs presented the testimony of Gene Henderson regarding when the poles for the sign were erected. Henderson stated that the poles for the subject sign were erected sometime in 1975; and from March 10, 1978, until August 10, 1978, bore two sign faces advertising Arrowhead Camp Grounds and Best Western [Motel]; and from August 10, 1978, to present signs advertising Arrowhead and Holiday Inn. W. B. Reddock, the owner of Arrowhead, stated the sign was erected in the latter part of 1975, or early part of 1976. 1-10 was not open to public traffic at the time the poles were installed.

   
   

4. The Department introduced an aerial photograph (DOT Exhibit 4) of the area 0.6 mile west of SR 69 taken on December 10, 1975. This photograph bears the number PD 1822 and has a scale of one inch to equal 50 feet. The location of the sign was measured by the Department's engineer, who indicated by a red mark the location of the sign on 1-10, 0.6 mile west of SR 69 and established that the scale of 1:50 was accurate. The photograph was examined by the Department's engineer, who did not observe the presence of poles or an outdoor advertising sign at the location.

5. The Department introduced DOT Exhibit 3, which was an extract of information maintained by the Department district office concerning when portions of 1-10 in Jackson County were opened to public travel. DOT Exhibit 3 reveals that the portion of 1-10, 0.6 mile west of SR 69 was completed on February 18, 1976, and opened to the public on October 14, 1977.

   
   

6. From the evidence presented, it is clear that the sign was not present on December 10, 1975, when the aerial photograph, DOT Exhibit 4, was taken. It is possible that the sign was erected between December 10, 1975, and October 14, 1977, the date this highway was opened to the public. Construction during this period would not be contrary to the testimony of Reddock or Henderson.

   
   

7. Based upon Henderson's testimony, no advertising message was put on the sign until August 10, 1978, after the highway was opened to the public.

   
   

   CONCLUSIONS OF LAW

   
   

8. The facts reveal that Henderson Signs has its identification placard on the subject sign, erected the sign, and has a proprietary interest in the sign.

   W. B. Reddock, the only ether individual with a proprietary interest in the sign, was present and testified in the cause. The Department of Transportation notified Henderson Signs in accordance with the statutes.

   
   

9. The facts also reveal that the outdoor advertising sign in question is located on an interstate highway which is open to the public, and its advertising message is visible from the main traveled way of that highway. At the time of the sign's inspection it did not bear a permit as required by Chapter 479, Florida Statutes, and the Department has no record of an application for a permit having been filed. In summary, the sign is subject to regulation by the Department pursuant to Chapter 479, Florida Statutes, the Department properly cited the sign for alleged violations of Chapter 479, supra, and properly notified Henderson Signs of the violations. The Department has jurisdiction over the sign and authority to adjudicate this case.

   
   

10. The factual situation presented is complex in terms of the statute's applicability to the subject sign. Clearly, at the time the sign was inspected and cited for failure to be properly permitted, the sign was subject to regulation by the Department. It meets all the criteria for regulation as an outdoor advertising sign. However, Henderson Signs contends that the sign began with the installation of poles prior to the time 1-10 was opened to the public and became a highway under Section 479.01(1) and (4), Florida Statutes. The facts further show that subsequent to the date 1-10 was opened to the public, an advertising message was attached to the poles. Based upon the foregoing, Henderson Signs argues that its sign is subject to the provisions of Section 479.23, Florida Statutes, which provides:

    
    

    All signs . . . lawfully erected and which do not conform to the provisions of this chapter shall not be required to be removed until after the end of the fifth year after they became nonconforming.

    
    

11. Section 479.07, Florida Statutes, governing permitting, requires permits for both advertising signs and advertising structures. Clearly, this section and the chapter distinguish between advertising structures and signs. "Sign" is specifically defined by Section 479.01(1), Florida Statutes, as:

    . . . any outdoor advertising sign, display, device, figure, paneling, drawing, message, placard, poster, billboard, or

    other thing . . . designated, 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 system. (Emphasis supplied.)

    
    

12. The definition of "sign" refers to three elements. The first element is physical. The definition contains a comprehensive listing of various physical structures associated with signs generally. The second element of the definition references the use to which the physical structures are put. The third element limits the definition geographically. The definition makes no reference to the physical location of the sign but is tied to the location from which the sign's message or informative content is visible. If the message is visible from the main traveled way of an interstate, federal-aid primary or state highway, it is a "sign." The physical structure must have informative content visible from a highway to be a sign.

    
    

13. Bare poles do not have informative content. Further, until they possess informative content that can be seen from the main traveled way of an interstate, federal-aid primary or state highway, it cannot be determined whether such signs would be regulated.

    
    

14. Section 479.23, Florida Statutes, refers specifically to "signs."

    Bare poles do not meet the statutory definition of signs and cannot be treated as legally erected but nonconforming signs. However, bare poles are advertising structures as the term is used in Section 479.09, Florida Statutes, and are required to be permitted as of the date 1-10 was opened, October 14, 1977.

    
    

15. The current sign is not subject to Section 479.23, Florida Statutes, and does not have a permit as required by Section 479.07, Florida Statutes. The sign is an illegal nonconforming sign and should be removed. Compensation for removal would not be made under the theory stated in LaPointe Outdoor Advertising v. Florida Department of Transportation, 398 So.2d 1370 (Fla. 1981).

    
    

16. In the alternative, should it be concluded that Section 479.23, Florida Statutes, is applicable to bare poles and the sign became nonconforming when 1-10 was opened on October 14, 1977, under the provisions of Section 479.23, Florida Statutes, it is subject to be removed on October 14, 1982.

RECOMMENDATION

Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within 30 days and without compensation to the sign owner(s).

DONE and ORDERED this 16th day of September, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 16th day of September, 1981.

COPIES FURNISHED:

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

Charles M. Wynn, Esquire

310 Jackson Street Post Office Box 793

Marianna, Florida 32446

Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301

Docket for Case No: 81-000099

Orders for Case No: 81-000099