STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-057T

) EMPIRE OUTDOOR ADVERTISING, INC., )

)

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 April 14, 1983, in Miami, Florida. The transcript was received on June 16, 1983, and the parties requested until July 15 to submit proposed findings of fact and conclusions of law. These have been considered. Where not adopted, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.

By stipulation the time for issuance of this Recommended Order was extended to August 15, 1983.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32312-8064

For Respondent: L. Martin Reeder, Jr., Esquire

Post Office Box 2637

Palm Beach, Florida 33480

By Notice of Violation issued on November 30, 1982, the Petitioner charged that the Respondent's sign east of U.S. 1 and south of Douglas Road in Miami, Florida, violates Section 479.07(1), Florida Statutes, in that it has no State sign permit, and that it violates Section 479.02(1)(b), Florida Statutes, and Section 14-10.06(1)(b)3, Florida Administrative Code, in that it violates the spacing requirement for signs adjacent to Federal-Aid Primary Highways.

The parties stipulated that the sign in question is an outdoor advertising sign as defined by Section 479.01(1), Florida Statutes; that it is located east of U.S. 1 and south of Douglas Road (37th Avenue), insider the city limits of Miami, Florida; that it is owned by the Respondent; that it was erected on October 28, 1982; that U.S. 1 was open for traffic when the sign was erected; and that Douglas Road is not a Federal-Aid Primary Highway, and thus is not a controlled highway under Chapter 479, Florida Statutes.

The Petitioner presented two witnesses, both outdoor advertising representatives of the Department of Transportation, and one exhibit which was

received in evidence. The Respondent introduced one exhibit which was received in evidence.

FINDINGS OF FACT

1. The sign which is the subject of this proceeding is an outdoor advertising structure owned by the Respondent. It was erected on October 28, 1982, and is located on the south side of Douglas Road, 132 feet east of the edge of U.S. 1, in the City of Miami, Florida.

   
   

2. The Respondent's sign is situated so as to be read by eastbound traffic on Douglas Road. Douglas Road is an uncontrolled road, in that it is not a Federal-Aid Primary Highway.

   
   

3. The Respondent's sign also faces so as to be visible to traffic travelling south on U.S. 1, and it can be read by this traffic.

   
   

4. The subject sign is 51 feet from another sign located on the east side of U.S. 1, facing so as to be read by traffic travelling south on U.S. 1, which is permitted by the Department of Transportation.

   
   

5. The subject sign is also 403 feet from another permitted sign located further south on the east side of U.S. 1, and facing so as to be visible to traffic travelling south on U.S. 1.

   
   

6. U.S. 1, is a Federal-Aid Primary Highway throughout Dade County, and it was open to the public when the Respondent's sign was erected.

   
   

7. The Respondent's sign does not have an outdoor advertising permit.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of the 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.

9. 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]

   
   

10. Section 479.07, Florida Statutes, requires that anyone who erects, uses or maintains a sign (as defined in Section 479.01(1) secure a permit therefor. Thus, the Respondent's sign on the southside of the non-Federal-Aid Primary Highway, Douglas Road, requires a permit because it is visible and can

    be read from the main-traveled way of U.S. 1, which is a Federal-Aid Primary Highway.

    
    

11. Section 479.02(1)(b), Florida Statutes, authorizes the Department to regulate the spacing of signs, and Section 14-10.06(1)(b)3, Florida Administrative Code, provides that no two structures shall be spaced less than

    500 feet apart on the same side of a Federal-Aid Primary Highway facing the same direction.

    
    

12. 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 comply with the requirements for signs on Federal-Aid Primary Highways.

    
    

13. Since the Respondent's sign is within 500 feet from another permitted sign on the east side of U.S. 1, and since both of these signs are visible to and can be read by traffic travelling south on U.S 1, the Respondent's sign cannot be permitted because it violates the spacing requirement in Section 14- 10.06(1)(b)3, Florida Administrative Code.

    
    

14. The Respondent contends that the Department failed to prove that U.S.

    1 at the intersection with Douglas Road in Miami, is a Federal-Aid Primary Highway. However, the Department introduced a certified copy of a Federal Aid Systems Map which was received in evidence. This was certified in August of 1982, and the unrebutted testimony of the Department's State Outdoor Advertising Administrator, who is the custodian of the Department's records, indicated that there had been no changes in the classification of U.S. 1 in Dade County since August 1982. There was no evidence to the contrary.

    
    

15. Therefore, the Respondent's sign is illegal and must be removed.

RECOMMENDATION

From the foregoing Findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its order requiring

the removal of the sign of Empire Outdoor Advertising, Inc., located on the south side of Douglas Road, 132 feet east of U.S. 1, in Miami, Florida.

THIS RECOMMENDED ORDER entered on this 15 day of August, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 15th day of August, 1983.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32312-8064

L. Martin Reeder, Jr., Esquire Post Office Box 2637

Palm Beach, Florida 33480

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

Docket for Case No: 83-000057

Orders for Case No: 83-000057