STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0676T

) BAYLESS INSURANCE AGENCY, )

)

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 April 13, 1984, at Bartow, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: J. Michael Swaine, Esquire

Post Office Box 231 Sebring, Florida 33871-0231

By Notice of Alleged Violation dated January 10, 1984, the Department of Transportation, Petitioner, seeks to have Respondent's sign located on U.S. 17 near the city limits of Sebring, Florida, removed. As grounds therefor it is alleged the sign has no permit, is located within 500 feet of a permitted sign and is therefore unpermittable, and that the sign violates the statutes and rules pertaining to outdoor advertising signs.

At the hearing Petitioner called two witnesses, Respondent called one witness, and nine exhibits were admitted into evidence. Proposed findings submitted by the parties, to the extent they are incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. Respondent's sign was erected in 1974 on land leased by Respondent within the city limits of Sebring, Florida. At this time signs within the limits of incorporated towns and cities did not require permits or authorization from Petitioner.

2. In 1975 Chapter 479, Florida Statutes, was changed so as to require signs located on federal-aid primary highways within the city limits to have permits issued by the Department of Transportation at no cost to the sign owner.

   U.S. 17 is a federal-aid primary highway.

   
   

3. By application for outdoor advertising sign permit dated May 31, 1977 (Exhibit 4), Barnett Bank at Sebring applied for a permit to erect a sign along

   U.S. 17 some 200 feet from Respondent's existing sign. That application was approved by the Department of Transportation on July 12, 1977.

   
   

4. Either before or after the Barnett Bank application was approved, Petitioner notified Respondent that its sign was in violation. Respondent is not in the sign business and no evidence was presented that Respondent has other signs. Respondent then submitted an application for permit dated July 25, 1977 (Exhibit 6), which was denied by Petitioner because it was within 500 feet of the Barnett Bank sign. The application stated this sign was within 200 feet of an existing sign. Respondent's sign has remained in its present location from 1974 to present. The structure is concrete block, brick and stucco, cost approximately $2,800 to erect, and resembles the building in which Respondent's insurance business is housed.

   
   

5. A second application for a sign permit was submitted by Barnett Bank on April 20, 1978, and was approved by Petitioner on April 27, 1978 (Exhibit 5). The only apparent difference between Exhibits 4 and 5 is the location of the sign on Exhibit 4 is 0.24 mile north of U.S. 27 and Exhibit 5 shows this distance as 0.20 mile north of U.S. 27. No evidence was presented regarding the purpose of the second application by Barnett Bank.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Prior to January 1, 1975, Section 479.07, Florida Statutes (1973), provided in part:

   
   

   . . . no person shall construct . . . or maintain . . . any outdoor adverti- sing structure . . . outside any incor- porated town without first obtaining

   a permit therefor from the department

   
   

8. This provision was amended effective January 1, 1975, to add the requirement that along any federal-aid primary highway within any incorporated city or town any person erecting or maintaining an outdoor advertising sign shall apply for a permit for such sign which will be issued without charge by the Department. Thus, at the time Respondent's sign was erected in 1974 no permit was required for the sign and the sign was legal. When the statute was amended in 1974, effective January 1, 1975, Respondent's sign was required to have a permit and, without a permit, was a nonconforming sign.

   
   

9. This sign was in existence in 1977 when Barnett Bank applied for the permit to erect its sign along the same federal-aid primary highway (U.S. 17) as Respondent's sign and within 500 feet of Respondent's sign. At that time Respondent's sign had been legally erected but was nonconforming only in that the owner had not applied for a permit. All Respondent needed to do was apply for a permit and one should have been issued by Petitioner without charge.

10. Before a permit to erect the Barnett Bank sign within 500 feet of Respondent's sign was issued, Respondent should have been given notice that its sign required a permit for which Respondent need only apply. Instead, the permit was issued to Barnett Bank who erected a sign 200 feet from Respondent's existing sign. Respondent was then cited for violating the spacing rule by having a sign within 500 feet of a duly permitted sign on the same side of a federal-aid primary highway and facing in the same direction. Both Respondent's sign and Barnett Bank's sign are relatively large signs--not signs that could have been overlooked by an inspector checking for existing signs before issuing the permit for another sign in the vicinity.

    
    

11. Respondent is now faced with the prospect of having to remove a sign that was legal when erected, became nonconforming by not having a permit January 1, 1975, and in violation of the spacing rule when Barnett Bank was issued a permit and erected a sign 200 feet from Respondent's sign in 1977, all without actual notice to Respondent.

    
    

12. This case differs from Walker v. State Department of Transportation,

    366 So.2d 96 (Fla. 1st DCA 1979) in that Walker involved a renewal fee rather than an initial permit, and actual notice was mailed to Walker's residence while here no notice was given Respondent. Similarities in the cases involve Walker trying to pay the fee for those years omitted and Respondent applying for a permit; both of which the Department denied. Walker held that "In the absence of a showing that a particular outdoor advertising structure poses an imminent threat to the public safety, the Department must give notice and reasonable opportunity to renew sign permits on existing signs." This same rationale is applicable here where Respondent's sign was legal and conforming when erected and became nonconforming only after Petitioner granted a permit to Barnett Bank to erect a sign 200 feet from Respondent's sign without first notifying Respondent that its sign required a permit.

    
    

13. From the foregoing it is concluded that Respondent's sign is in violation of the statute requiring a permit and it is located within 500 feet of an existing sign. It is further concluded that Respondent's sign was legal when erected and did not require a state permit; that after the law was changed to require such signs to be permitted actual notice of such change was not given to Respondent; and that while Respondent's sign was in clear view Petitioner issued a permit to Barnett Bank to erect a sign 200 feet from Respondent's sign. It is therefore

RECOMMENDED that a permit be issued to Respondent for this sign, or, in the alternative, that Petitioner pay Respondent for the value of this sign upon removal.

ENTERED this 29th day of May, 1984, at Tallahassee, Florida

K. N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of May, 1984.

COPIES FURNISHED:

CHARLES G. GARDNER, ESQUIRE PATRICK GALVIN, ADMINISTRATOR DEPARTMENT OF TRANSPORTATION OUTDOOR ADVERTISING

HAYDON BURNS BUILDING DEPARTMENT OF TRANSPORTATION TALLAHASSEE, FLORIDA 32301-8064 HAYDON BURNS BUILDING

TALLAHASSEE, FLORIDA 32301

J. MICHAEL SWAINE, ESQUIRE

245 SOUTH COMMERCE PAUL A. PAPPAS, SECRETARY

POST OFFICE BOX 231 DEPARTMENT OF TRANSPORTATION SEBRING, FLORIDA 33871-0231 HAYDON BURNS BUILDING

TALLAHASSEE, FLORIDA 32301

Docket for Case No: 84-000676

Orders for Case No: 84-000676