STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 85-1745T

) 85-2094T

) 85-2095T

) 85-2098T

PETERSON OUTDOOR ADVERTISING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officers William B. Thomas, held a formal hearing in these cases on October 29, 1985, in Orlando, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

APPEARANCES

FOR PETITIONER: Philip S. Bennett, Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee Florida 32301-8064

FOR RESPONDENT: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

By notice dated May 21, 1985, the Department advised the Respondent that its sign located in Orange County on I-4, approximately 1.5 miles west of U.S. 17/92/441, was in violation of Sections 479.07(1); 479.07(6), 479.07(9)(a)1.; and 479.02(1),

Florida Statutes (1984 Supplement). These statutes prohibit the following, respectively: (1) erecting a sign without a state permit, (2) displaying a permit issued for another location, (3) erecting a sign less than 1,500 feet from a permitted sign, and

(4) erecting a sign within 500 feet of a restricted interchange. By notices dated March 26 and May 10, 1985, the Department advised the Respondent that its permits numbered AM 267-12 and AM 268-12 were being revoked pursuant to Section 479.08, Florida Statutes (1984 Supplement), because the sign for which these permits were issued had been removed and could not be reerected. These permits had authorized a sign on I-4, 1.42 miles west of Orange Blossom Trail (U.S. 17/91/441) in Orange County.

The issues presented are whether the Respondent's sign on I- 4, 1.5 miles west of U.S. 17/92/441 should be removed, and whether the Respondent's permits for a location on I-4, 1.42 miles west of

1. 17/92/441 should be revoked.

   
   

   FINDINGS OF FACT

   
   

   1. In 1976 an outdoor advertising company named Outdoor Media applied to the Department to have permits issued for a sign that had been built in 1971 on the north side of I-4, 1.42 miles west of U.S. 17/92/441 (Orange Blossom Trail) inside the city limits of Orlando.

      
      

   2. Permit numbers 2259-12 and 2260-12 were issued by the Department to Outdoor Media for the west face and the east face of this sign.

      
      

   3. In 1978 the Respondent, Peterson Outdoor Advertising, Inc., purchased this sign from Outdoor Media. A request for replacement tags was made and granted, and tag number 2259-12 was replaced by 7553-12, and tag number 2260-12 was replaced by 7554-

1. In April of 1984 the Respondent again requested replacement tags, and tag number 7553-12 was replaced by AM 267-12, and tag number AM 7554-12 was replaced by AM 268-12.

   
   

   1. Sometime after April, 1984, this sign was removed, and the Respondent erected a new sign, a monopole, at a location on the north side of I-4, 1.5 miles west of U.S. 17/92/441 (Orange Blossom Trail). This is approximately 200 feet west of the place where the old sign had been located.

      
      

   2. The Respondent affixed tag numbers AM 267-12 and AM 268-

      12 to the new monopole structure, but these tags were not issued for this sign. They had been issued for the old sign which was removed.

      
      

   3. The city limits of Orlando are such that the location of the new monopole is outside the city; while the location where the

      old sign had been was inside the city limits. The county allows a taller sign than may be built inside the City of Orlando, and the Respondent wanted to enhance the visibility of its sign by raising its height. The Respondent obtained a variance from Orange County to extend the height of the monopole sign to a total of 65 feet.

      
      

   4. The monopole sign at 1.5 miles west of U.S. 17/92/441 percents adjacent to the ramp leading onto I-4 and is less than 1,000 feet from the nearest permitted sign. The distance between these signs is 898 feet as measured by the Department's inspector using a measuring wheel.

      
      

   5. The Department's inspector has more than 11 years of experience. He has measured signs, sites and locations over 1,000 times. He is familiar with the state and federal requirements for calculating point to point measurements between signs, and he followed them in making the measurements in this case.

      
      

   6. The Department's inspector measured the distance between the Respondent's new monopole and the nearest permitted sign three times with the same result. Be ran the measuring wheel along the right-of-way of I-4 at right angles to the two signs. Five of the Respondent's witnesses also measured the distance between these signs with results ranging from 955 feet to 1,016 feet. However, none of these witnesses had any experience in making measurements between signs pursuant to state and federal requirements, and some of these distances were obtained by measuring along the ramp instead of along the side of the highway. Thus, the testimony of the Department's inspector is found to be the credible evidence supporting the finding that the two subject signs are 898 feet apart.

      
      

   7. The Department's evidence relative to when the new monopole was erected is vague and imprecise, and thus not of sufficient quality to support a finding of fact on this issue. The Respondent presented evidence to show that the monopole was erected in April of 1984, and it contends that it applied for the county variance in preparation for relocation and reconstruction of this sign. However, the Respondent's evidence that the monopole was erected in April of 1984 is self-serving, and not corroborated. Even the variance notice indicates that it was applied for on October 4, 1984. Thus there is likewise insufficient credible evidence to support the Respondent's contention relative to when this sign was actually constructed.

      
      

   8. Nevertheless, the Respondent erected its new monopole structure at the point on the north side of I-4, 1.5 miles west of

      U.S. 17/92/441, without having first obtained a state sign permit for this location. The Respondent's manager and its president both admit that tags numbered AM 267-12 and AM 268-12 were issued for the sign at 1.42 miles west of U.S. 17/92/441.

      
      

   9. Peterson Outdoor Advertising is a licensed outdoor advertising company. The firm's manager has been in the business for 27 years. The company president has been engaged in the business of outdoor advertising for more than 25 years, and he claims to have a familiarity with the law. From these facts, and from all inferences that can be drawn therefrom, there is not sufficient evidence to support a finding that this experienced outdoor advertising company was misled into moving its sign 200 feet westward without a permit by the Department's approval of its request for replacement tags for the old sign structure.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1); Florida Statutes. The Department of Transportation has regulatory authority over outdoor advertising signs as prescribed by Chapter 479, Florida Statutes.

       
       

   11. Section 479.07(1); Florida Statutes (1984 Supplement), and Section 479.07(1), Florida Statutes, (1983), prohibit the erection of a sign along a regulated highway outside the limits of a city without first obtaining a permit issued by the Department. Although the Respondent applied for and was issued replacement tags for the sign at 1.42 miles west of U.S. 17/92/441, this sign was removed and these replacement tags were affixed to the new monopole at 1.5 miles west of U.S. 17/92/441 without any state sign permit having first been obtained for the new location. Therefore, whether the new monopole was erected before or after July 1, 1984, the effective date of the 1984 Supplement to Chapter 479; Florida Statutes; it was erected without a permit and the monopole is illegal.

       
       

   12. Section 479.07(6); Florida Statutes (1984 Supplement) stating explicitly that a permit is valid only for the location specified in the permit, became effective on July 1, 1984, and this provision is not contained in the prior statutes. Since it cannot be determined from the evidence whether the monopole was erected after the effective date of the new statute, this violation was not substantiated, and this charge should be dismissed.

   13. Section 479.07(9)(a)(1), Florida Statutes (1984 Supplement) prohibits the Department from granting a permit for any sign that had not been permitted by July 1, 1984, unless the sign is at least 1,500 feet from any other permitted sign on the same side of an interstate highway. Although this statute became effective on July 1, 1984; Section l4-l0.06(1)(b)2.a.; Florida Administrative Code required a minimum of 1,000 feet between permitted signs on the same side of an interstate highway prior to July 1, 1984. Since there is only 898 feet between the new monopole and the nearest permitted sign, no permit could be issued either before or after July l, 1984, for the new monopole.

       
       

   14. Section 479.02(1), Florida Statutes (1984 Supplement), prohibits the erection of a sign outside the city limit within 500 feet of a restricted interchange because this proscription is a part of the agreement between the state and the federal government recited in and made a part of Rule 14-10.09, Florida Administrative Code. Rule 14-10.09(2), Florida Administrative Code, under spacing of signs, at 2.b., prohibits the location of a sign outside incorporated cities or towns that is adjacent to or within 500 feet of an interchange. This Rule also specifies that the 500 feet distance is to be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way. The Respondent's new monopole at 1.5 miles west of U.S. 17/92/441 is adjacent to the ramp leading onto I-4 and this location is outside the city limits of Orlando. Thus either before or after July 1, 1984, the subject sign violated the rule against signs adjacent to restricted interchanges.

       
       

   15. Rule 14.10.06(1)(b)4.b., Florida Administrative Code, prescribes the way to measure minimum distances between structures to determine compliance with the spacing requirements. The distance must be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway. The Department's inspector complied with this measuring requirement.

       
       

   16. Rule 14-10.07, Florida Administrative Code, sets forth the requirements relative to the maintenance of non-conforming signs. In essence, this Rule prohibits the reerection of a nonconforming sign under many circumstances. However, there is insufficient evidence to support a conclusion that the Respondent's sign at 1.42 miles west of U.S. 17/92/441 was nonconforming when it was removed. Thus, this Rule cannot be found to be applicable, although the spacing requirements detailed

       above will not permit the reerection of the Respondent's sign at

       1.42 miles west of U.S. 17/92/441.

       
       

   17. Section 479.08, Florida Statutes (1984 Supplement) and Section 479.08, Florida Statutes (1983), deal with with revocation of permits either before or after July 1, 1984. Revocation is authorized pursuant to these statutes when the permit application contains knowingly false or misleading information, or when the permittee has violated any of the provisions of Chapter 479. The Respondent did not apply for a permit for the new monopole, and there is no evidence that the sign that was removed from the old location was permitted pursuant to false or misleading information. However, the Respondent erected the new monopole without having first obtained a sign permit from the Department, which was prohibited by Section 479.07 either before or after July 1, 1984. Thus, the Respondent has violated the provisions of Chapter 479; and its permits for the location 1.42 miles west of

       U.S. 17/92/441 may be revoked.

       
       

   18. The Respondent contends that the Department is estopped from removing its monopole sign at 1.5 miles west of U.S. 17/92/441 because the Department approved the issuance of replacement tags as requested; and because the Department's interpretation of the ramp rule led the Respondent to believe it could relocate its sign without being in violation of any requirement. This contention is untenable because there is no protectible property interest in an unpermitted sign. Department of Transportation v. Durden, 471 So.2d 1271 (Fla. 1985). The Respondent and its personnel are experienced and knowledgeable in matters relative to outdoor advertising laws, rules, regulations and requirements. The Respondent was not misled by the Department under the evidence; thus, the equitable doctrine of estoppel is not applicable in the circumstances.

RECOMMENDATIONS

Based upon the foregoing Findings of Fact and Conclusions of Law it is

RECOMMENDED that the Respondent's sign on the north side of I-4, 1.5 miles west of U.S. 17/92/441, in Orange County, Florida, be removed. And it is

RECOMMENDED that permits numbered AM 267-12 and AM 268-12 be REVOKED.

THIS RECOMMENDED ORDER entered this 26th day of February, 1986 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 26th day of February, 1986.

APPENDIX

Petitioner's Proposed Finding of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

Respondent's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Rejected as irrelevant.

7. Rejected as irrelevant.

8. Rejected as irrelevant.

9. Rejected as irrelevant.

10. Rejected as irrelevant.

11. Rejected as irrelevant.

12. Rejected as irrelevant. Replacement tags are not outdoor advertising sign permits.

13. Rejected as not supported by competent substantial evidence, or irrelevant. Last sentence is accepted.

14. Rejected as irrelevant. Lost tag application is not an application for outdoor advertising sign permit.

15. Accepted.

16. Rejected as not supported by competent substantial intent.

17. Rejected as irrelevant, except for raising the height of the sign to 65 feet which

    is accepted.

18. Rejected as irrelevant or not supported by competent substantial evidence, except for the granting of a variance and the building permit which are accepted.

19. Rejected, as not supported by competent substantial evidence.

20. Rejected, as not supported by competent substantial evidence.

COPIES FURNISHED:

Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32801-8064

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-001745

Orders for Case No: 85-001745