STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2773T

) 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 December 13, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

For Respondent: None

On July 26, 1983, the Department issued a Notice of Violation charging that the Respondent's sign on the north side of Northwest 54th Street approximately

30 feet east of Northwest 12th Avenue, in Dade County, Florida, violated the spacing rule on a federal-aid primary highway, and that this sign had no state permit. The Respondent, requested a formal administrative hearing, and the matter was referred to this Division for assignment of a Hearing Officer.

On September 26, 1983, the Department served its Request for Admissions on the Respondent, in which the Respondent was requested to admit or deny in writing, within the 30 day time, period prescribed by Rule 1.370, Florida Rules of Civil Procedure, the factual matters alleged in the violation notice. The Respondent was represented by counsel, whose Notice of Appearances had been filed on August 24, 1983.

The matter was scheduled for final hearing by Notice of Hearing issued on October 26, 1983. On December 12, 1983, counsel for the Respondent notified the Hearing Officer by telephone that neither the Respondent nor its counsel should attend the scheduled hearing.

Inasmuch as there was no appearance at the scheduled final hearing by the Respondent or its counsel, and there was no objection to the Department's Request for Admissions, or any excuse for the failure to respond to the same, the Department moved orally at the bearing to deem all matters contained in the Notice of Violation admitted. This motion was granted pursuant to the provisions of Rule 1.370, Florida Rules of Civil Procedure [see Florida Bar v. Drizin, 420 So. 2d 878 (Fla. 1982)].

Nevertheless, the Department presented one witness to substantiate that the subject sign site had been inspected, that the violation notice had been issued, and that the roadway involved is a federal-aid primary highway. Three exhibits were offered and received in evidence.

FINDINGS OF FACT

1. The Respondent, Empire Outdoor Advertising, Inc., is the owner of a sign located on the westbound or north side of Northwest 54th Street approximately 20 feet east of Northwest 12th Avenue, in Dade County, Florida. Northwest 54th Street is also designated as State Road 25A.

   
   

2. The Respondent's sign is a structure or billboard designed to advertise or inform, and its copy is visible from the main traveled way of the adjacent roadway of State Road 25A or Northwest 54th Street.

   
   

3. At the site where the Respondent's sign is located, State Road 25A or Northwest 54th street is a part of the federal-aid primary highway system, and this roadway is open to the public for vehicular traffic.

   
   

4. The Respondent's sign is located within 660 feet from the nearest edge of the pavement of State Road 25A.

   
   

5. The Respondent's sign is situated within 500 feet from another outdoor advertising structure on the same side of the highway. These two signs face in the same direction and are both visible to westbound traffic on the north side of State Road 25A or Northwest 54th Street.

   
   

6. The Respondent's sign has affixed to it copy which advertises Imported Canadian Mist. This structure does not fall within any of the exceptions to the statutory licensing requirements set forth in Section 479.16, Florida Statutes, and it must have a state sign permit.

   
   

7. The Respondent has not applied for an outdoor advertising permit from the Department, and no such permit has been issued by the Department for the subject sign.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties 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 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.

   
   

10. Section 479.07(1), Florida Statutes, provides in part:

    
    

    . . . Any person who shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertisement along any federal-aid primary highway . . . shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). . . .

    
    

11. Thus, the Respondent's sign on the north side of the federal-aid primary highway, designated as State Road 25A or Northwest 54th Street, requires a state sign permit and is subject to removal without such a permit.

    
    

12. Section 479.02(1)(b)3., 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.

    
    

13. Certain outdoor advertising is excluded from the requirements of Chapter 479 as noted in Section 479.16, Florida Statutes, but these exceptions are not applicable to the Respondent's sign.

    
    

14. Since the Respondent's sign is within 500 feet from another sign on the north side of Northwest 54th Street or State Road 25A, and since both of these signs are visible to and can be read by traffic travelling west on this highway, the Respondent's sign cannot be permitted because it violates the spacing requirement in Section 14-10.06(1)(b)3., Florida Administrative Code. Consequently, this sign should be removed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the

Respondent's sign which is the subject of this proceeding to be in violation of

the applicable statutes and rules, and ordering its removal.

THIS RECOMMENDED ORDER entered this 25th day of January, 1984, 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 25th day of January, 1984.

COPIES FURNISHED:

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

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

Palm Beach, Florida 33480

Docket for Case No: 83-002773

Orders for Case No: 83-002773