STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-100T

) HENDERSON SIGNS (0.8 mile east )

of SR 71, 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 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 ether cases, it was agreed that said testimony relating to the status of the highway known as 1-10 would be adopted as to the other cases pending (Cases No. 81-099T and 81-101T through 81-107T). It was further agreed that the portion of the testimony specifically related to individual signs would be received regarding that particular sign. The parties stipulated that the signs were at the location 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 toot 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 open 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 0.8 mile east of State Road 71 on 1-10. This sign was inspected in October, 1980, by an inspector of the Department of Transportation, who observed that the sign's message 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 this 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.) Prior to the date of the hearing, a name plate identifying Henderson Signs as responsible for the sign was attached to the sign. (Transcript, page 29.) 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. 81-100T.

   
   

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. Gene Henderson testified concerning the erection of the poles and the attachment of a sign face to the poles. The sign poles were erected during the latter portion of 1975, and a sign face advertising Ramada Inn was affixed to the poles on November 24, 1977. On August 1, 1980, the sign face was changed to one advertising "Regular diesel this exit." The sign is owned by Henderson Signs, which erected the poles prior to the time 1-10 was opened to the public.

   
   

4. The Department introduced DOT Exhibit 3, which shows that the section of 1-10 along which the subject sign is located was opened to the public on October 14, 1977.

   
   

5. The Department introduced DOT Exhibit 5, an aerial photograph of the section of 1-10 along which the subject sign is located. This photograph bears the number PD 199 6 and is Sheet 8 of 28 sheets taken on December 29, 1976. The photograph's legend reflects it has a scale of one inch equal to 50 feet.

6. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the sign 0.8 mile east of SR 71 on 1-10. 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.

   
   

7. The photograph was taken nearly one year after the date Henderson stated the poles were erected but does not reveal the presence of the poles. Even if one assumes they were erected, a sign face was not attached until November 24, 1977, more than one month after 1-10 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. 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 regulations 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 the sign began with the installation of poles prior to the time 1-10 was opened to the public and became a public highway under the statute's definition. See Section 479.01(1) and (4), Florida Statutes.

    
    

11. 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 non-conforming.

    
    

12. 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.)

    
    

13. 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.

    
    

14. 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.

    
    

15. 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.

    
    

16. Even if one assumes that the poles were erected before the highway was opened to the public, 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).

    
    

17. In the alternative, should it be found that the poles were erected prior to the highway's opening to the public, and further concluded that Section 479.23, Florida Statutes, is applicable to bare poles, the facts indicate that 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

    
    

18. 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.

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: 81-000100

Orders for Case No: 81-000100