STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILLBOARD CONSULTANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4174T

) DEPARTMENT OF TRANSPORTATION, )

)

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 27, 1985 in Jacksonville, Florida. The transcript was filed on March 21, 1985, 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: Paul M. Harden, Esquire

2601 Gulf Life Tower Jacksonville, Florida 32307

FOR RESPONDENT: Charles G. Gardner, Esquire

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

By Memorandum of Returned Application dated October 10, 1984, the Department of Transportation notified the Petitioner that the applications for sign permits that had been received on October 3, 1984, were denied. These applications sought permits for two signs on Prudential Drive (U.S. 1), 90 feet south of Flagler Avenue, facing south, in Jacksonville (Duval County), Florida. The Petitioner's applications were denied because the proposed location was alleged to be within 1,000 feet of two permits issued to DFL Corporation for a location approximately .7 mile southerly of Main Street on the southbound side of U.S. 1 in Jacksonville. Thus, the Department contends that the spacing rule for signs visible from a federal-aid primary highway would be violated by issuance of the requested permits.

FINDINGS OF FACT 1/

1. The Petitioner has applied for permits, and proposes to erect outdoor advertising signs on Prudential Drive, 90 feet south of Flagler Avenue, facing south, in Jacksonville (Duval County), Florida. Prudential Drive is also designated U.S. 1.

2. U.S. 1 is a federal-aid primary highway, and it is open for traffic.

   
   

3. The Department of Transportation has issued two permits to DFL Corporation for outdoor advertising signs located approximately .7 mile southerly of Main Street on the southbound side of U.S. 1 in Jacksonville. A sign has been erected at this location which advertises "Sun Bank."

   
   

4. The "Sun Bank" sign can be seen by traffic on Prudential Drive, although this sign does not face the flow of traffic on Prudential Drive. It is situated within 660 feet of U.S. 1 or Prudential Drive.

   
   

5. The Petitioner's signs as proposed could be seen by the same traffic as can see the "Sun Bank" sign.

   
   

6. The proposed location of the Petitioner's signs is also within 660 feet of U.S. 1 or Prudential Drive.

   
   

7. The distance between the "Sun Bank" sign and the site where the Petitioner's signs are proposed to be erected is 446 feet.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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 therefor pursuant to the provisions of Chapter 479, Florida Statutes.

   
   

9. Section 479.11(1), Florida Statutes, prohibits the erection of outdoor advertising signs within 660 feet of the right-of-way of any portion of the federal-aid primary highway system, except as allowed by Sections 479.111 and 479.16, Florida Statutes. These exceptions are not applicable to this proceeding.

   
   

10. Section 479.07(9)(a)2, Florida Statutes, prohibits the permitting of an outdoor advertising sign within 1,000 feet from any other permitted sign on the same side of the highway, if the location is on a federal-aid primary highway.

    
    

11. Section 479.01(1), Florida Statutes, under Definitions, provides:

    
    

    (14) "Sign" means any . . . outdoor sign . . . designed, intended, or used to advertise or inform, any part of the advertising message . . . of which is visible from any place on the main- traveled way. (Emphasis added)

    
    

12. The "Sun Bank" sign which is the sign with which the Petitioner's proposed signs would conflict, is visible to traffic on the main-traveled way of Prudential Drive (U.S. 1). The Petitioner's signs would be seen by the same traffic as can view the "Sun Bank" sign. The location where the Petitioner proposes to erect its signs is within 1,000 feet from the site where the Sun Bank" sign has been erected. Therefore, the approval of the Petitioner's requested permits would allow it to erect signs which would violate the spacing rule as set forth in Section 479.07(9)(a)2, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Billboard Consultants for permits to erect

outdoor advertising signs on Prudential Drive (U.S. 1), 90 feet south of Flagler Avenue, facing south, in Jacksonville (Duval County), Florida, be denied.

THIS RECOMMENDED ORDER entered this 22nd day of April, 1985 in Tallahassee, Leon County, 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 22nd day of April, 1985.

ENDNOTE

1/ The parties requested the Hearing Officer to view the locations which are the subject of this proceeding, but this request was denied. Section 120.57(7), Florida Statutes, requires that findings of fact be based exclusively on evidence in the record and matters officially recognized.

COPIES FURNISHED:

Paul M. Harden, Esquire 2601 Gulf Life Tower Jacksonville, Florida 32301

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

Hon. Paul A. Pappas Secretary

Department of Transporation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-004174

Orders for Case No: 84-004174