STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2428T

)

MAXMEDIA, INC., )

)

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 February 8, 1983, at Orlando, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Gerald S. Livingston, Esquire

LIVINGSTON & LAUBACH, P.A.

Post Office Box 2151 Orlando, Florida 32802

By Notice of Alleged Violation dated July 30, 1982, the Department of Transportation, Petitioner, seeks to have the sign owned by Maxmedia, Inc., Respondent, located at the southeast corner of I-4 and SR 424A removed. As grounds therefor it is alleged the sign does not have a permit, is located within 500 feet of an interchange of an interstate highway and is within 1,000 feet of a permitted sign on the same side of the highway and facing in the same direction.

At the hearing one witness was called by Petitioner, one witness was called by Respondent, and three exhibits were admitted into evidence. A second witness called by Petitioner in rebuttal was excused before relevant testimony was offered.

FINDINGS OF FACT

1. Respondent owns a sign within 660 feet of the I-4 erected alongside SR 424A (Fairbanks Avenue) outside the corporate limits of Orlando or Winter Park, Florida, on the east side of I-4, an interstate highway. The sign is visible from the I-4 and the face of the sign is nearly parallel to the I-4.

   
   

2. The sign is located within the interchange of the I-4, i.e., it is located within two lines running easterly and perpendicular to the commencement

   of the off ramp and end of the on ramp of the I-4 at the Fairbanks Avenue intersection.

   
   

3. The I-4, which is considered to be an east-west highway, runs in a northwesterly-southeasterly direction where it crosses over Fairbanks Avenue, which runs generally east and west at this point.

   
   

4. Respondent's sign is located in the vicinity (within 200 to 500 feet) of several signs erected by Peterson Advertising Company before 1971 and which are now permitted as nonconforming signs. These signs are erected along the curve of the eastbound (which at this location moves in a northwesterly direction) off ramp and are at varying angles with the I-4, but all can be seen from the I-4.

   
   

5. Respondent's sign can be seen by both east and westbound traffic on the I-4; however, it is closer to the eastbound lane of traffic.

   
   

6. Before the construction of this sign was completed, Respondent was advised the sign would not be permitted because it was within 1,000 feet of another sign on the same side of the I-4 facing in the same direction and within

   500 feet of the interchange.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 479.07, Florida Statutes, provides that no person shall erect any outdoor advertising structure along the interstate or federal-aid primary highway system without first obtaining a permit. Respondent is clearly in violation of this provision and this issue is dispositive of this case.

   
   

9. However, Respondent has raised the issue that the sign is not located on the interstate or a nonfederal-aid primary highway and that the sign does not require a permit.

10. Section 479.01(1) , Florida Statutes, under Definitions, provides: 'Sign' means any outdoor sign, dis-

    play, 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).

    
    

11. Section 479.02, Florida Statutes, authorizes the Department of Transportation to regulate the spacing of signs and Rule 14-10.06(1)(b)2a, Florida Administrative Code, provides that on interstate highways:

    
    

    No two structures shall be spaced less than one thousand (1,000) feet apart on the

    same side of the highway facing the same direction.

    
    

12. Sections 479.01 and 479.02, Florida Statutes, requires signs on nonfederal-aid primary highways which cross interstate highways and are clearly visible from the interstate highway to be permitted. Respondent's sign fits this category. The sign must, therefore, comply with the requirements for signs on interstate highways. Since Respondent's sign is within one thousand (1,000) feet of the existing Peterson signs and on the same side of Interstate 4, the proposed sign violates the spacing rule above-quoted if both signs face the same direction.

    
    

13. In Naegele Outdoor Advertising Company of Jacksonville, Petitioner, vs. Florida Department of Transportation, D.O.A.H. Case No. 79-2103T the Department, on May 19, 1980, entered a Final Order adopting the findings and conclusions of the Recommended Order which provided in pertinent part:

    
    

    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 administra- tion of the outdoor advertising sign statutes are entitled to great weight. Austin v. Austin, 357 2d 102 (Fla. 1st DCA 1977). Such long-standing construc- tion by those charged with the adminis- tration [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. Ceilings, 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 prac- tice 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.

14. Those conclusions will be dispositive of this case when, and if, Respondent applies for a permit for this sign.

From the foregoing it is concluded that Respondent's sign near the intersection of Fairbanks Avenue and I-4 can be clearly seen from the I-4 and requires a permit. It is further concluded that this sign is within 660 feet of the right-of-way of the I-4, is within 500 feet of the beginning of the off ramp of the I-4, and is within 1,000 feet of a permitted sign on the same side of the I-4 and facing in the same direction. It is

RECOMMENDED that Respondent be ordered to remove the offending sign within thirty (30) days and, upon Respondent's failure to comply with this order, that Petitioner take appropriate steps to remove the sign.

ENTERED this 14th day of April, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 14th day of April, 1983.

COPIES FURNISHED:

Charles G. Gardner, Esquire Patrick A. Galvin, Administrator Department of Transportation Outdoor Advertising

Haydon Burns Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building

Tallahassee, Florida 32301

Gerald S. Livingston, Esquire LIVINGSTON & LAUBACH, P.A.

Post Office Box 2151 Orlando, Florida 32802

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

Docket for Case No: 82-002428

Orders for Case No: 82-002428