STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-560T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on February 1, 1983, in Fort Lauderdale, Florida. The transcript was filed on February 25, 1983, and the parties requested 21 days thereafter to submit proposed findings of fact and conclusions of law. By stipulation, the time for issuance of this Recommended Order was extended to 30 days after the filing of proposed findings and conclusions; to date, nothing has been received from either party, and no request for extension has been made.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802

By notice of violation issued on December 30, 1981, the Department notified National Advertising Company that its north-facing sign on the west side of Interstate 95 at a point approximately 0.95 mile south of State Road 84 violated the spacing requirements of Section 14-10.06, Florida Administrative Code. The issue to be resolved is whether the Respondent's sign at this location is in violation of the spacing requirements and, if so, whether it should be removed.

FINDINGS OF FACT

1. The sign which is the subject of this proceeding is the north-facing sign of back-to-back signs owned by the Respondent, located on the west side of Interstate 95, approximately 0.95 miles south of State Road 84, outside the city limits of Fort Lauderdale, in Broward County, Florida.

   
   

2. On June 30, 1977, the Respondent entered into a land lease for the site where it proposed to erect an outdoor advertising sign. Thereafter, on July 14, 1977, the Respondent applied for a permit to erect a south-facing sign on the leased property. This application was approved by the Department on July 26,

   1977, and the south-facing sign was erected. This sign is not involved in this proceeding.

   
   

3. Subsequently, on December 5, 1977, the Respondent filed an application to permit a north-facing sign on the same leased site where its south-facing sign had been erected, the sign to become a back-to-back structure. After a field inspection of the site, the Department approved the Respondent's application, and on February 1, 1978, it issued a permit for the north-facing sign back-to-back with the sign which had been permitted in July of 1977. The north-face sign was constructed and in place by the end of February, 1978, and it is the north face of this sign that is the subject of this proceeding.

   
   

4. Subsequent to the construction of the north face of the subject sign, title to the land on which the structure was erected changed hands, and in April of 1979 the Respondent entered into another land lease with the new property owner. This lease runs for a period of ten years from April, 1979, and rental payments are due from the Respondent for the entire term of this lease.

   
   

5. Back in the year 1974, the Department had issued to Tropical Acres Steakhouse a permit to erect a sign on Ravenswood Road, west of Interstate 95, approximately 750 feet north of the site where the Respondent's sign was erected. This Tropical Acres sign was permitted as a north-facing sign and was erected. However, it faces more eastward than to the north, its face being angled slightly northward to within a few degrees from due east.

   
   

6. Ravenswood Road at the site which is involved in this proceeding runs approximately north and south, and is approximately parallel with Interstate 95. The Tropical Acres sign is on the east side of Ravenswood Road, its face almost perpendicular to Ravenswood Road. The location of this sign is west of the railroad tracks which are also west of and parallel with Interstate 95.

   
   

7. The application filed by the Respondent for its north face shows that the site is 1,100 feet from the nearest existing sign. The Respondent's application for the south-facing sign also showed the distance from the nearest existing sign to be 1,100 feet.

   
   

8. The Tropical Acres sign is approximately 750 feet from the Respondent's sign, but on Ravenswood Road west of Interstate 95 and not on Interstate 95 because the railroad tracks intervene. Its copy cannot be clearly seen from Ravenswood Road, but the copy is clearly visible from Interstate 95 by traffic traveling south. The permit for this sign has been renewed each year since 1974, and is valid now.

   
   

9. On January 15, 1982, the Department served its notice of violation on the Respondent, contending that the north face of its sign at the subject location is illegal because it violates the spacing requirements of Section 14- 10.06, Florida Administrative Code. No violation notice was issued for the south face of this sign.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of transportation has the authority to regulate outdoor advertising signs and issue permits pursuant to the provisions of Chapter 479, Florida Statutes.

11. Section 479.02(b), Florida Statutes, authorizes the Department to regulate the spacing of signs, and Section 14-10.06(1)(b)2.a., Florida Administrative Code, provides that no two structures shall be spaced less than 1,000 feet apart on the same side of an interstate highway facing the same direction.

12. 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]

    
    

13. When the Department permitted the Tropical Acres sign in 1974, it was permitted as a north-facing sign because its copy was visible to Interstate 95 traffic traveling south. Thus, the north face of the Respondent's sign, being also visible to traffic traveling south on Interstate 95, and being located within 1,000 feet from the Tropical Acres sign, is in violation of the spacing requirements and should not have been permitted. However, a permit was in fact issued by the Department.

    
    

14. Section 479.08, Florida Statutes, provides that the Department may revoke any permit issued by it where it shall appear to the Department that the application for the permit contains knowingly false or misleading information." Thus, if the Respondent knowingly misrepresented the information on its application for the north-facing sign, or if the information on the application was knowingly false or misleading, the permit may be revoked.

    
    

15. However, there is no evidence in the record to support a factual finding that the Respondent knowingly misrepresented the distance from its sign site to the nearest existing sign. Apparently, the Respondent simply overlooked the Tropical Acres sign, possibly because it is located on Ravenswood load and not on Interstate 95, and possibly because it faces nearly due east instead of north. At any rate, even the Department's inspector who viewed the site on two occasions was unable to detect any error or misinformation on either the July, 1977, application for the south-facing sign or on the December, 1977, application for the north face, even though both applications showed the distance to the nearest existing sign to be 1,100 feet. Thus, it cannot be concluded that the Respondent knowingly falsified its applications, and the legal prerequisite for revocation of the subject permit is lacking.

    
    

16. Moreover, in reliance on the Department's issuance of the permit for the north-facing sign which is the subject of this proceeding, the Respondent entered into a 10-year land lease in April of 1979, and is obligated to make rental payments until April of 1989. In this circumstance, the Department is estopped from now seeking to remove the Respondent's north-facing sign which was lawfully erected pursuant to a valid permit. (See Foster and Kleiser, Inc., vs. Department of Transportation, D.O.A.H. Case No. 79-387T, Final Order dated October 30, 1979, and Lamar Advertising Co. vs. Department of Transportation,

D.O.A.H. Case No. 78-2179T, Final Order dated May 10, 1979.)

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the notice of violation issued by the Department, alleging

that the Respondent's north-facing sign on the west side of Interstate 95 at a point approximately 0.95 mile south of State Road 84, in Broward County, Florida, be DISMISSED.

THIS RECOMMENDED ORDER ENTERED this 27 day of May, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1983.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Building, M.S.58 Tallahassee, Florida 32301-8064

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 82-000560

Orders for Case No: 82-000560