STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

) CASE NO. 85-3021T

vs. )

) ATLANTIC 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 March 7, 1986, in Jacksonville, Florida. The transcript was filed on April 7, 1986, and the parties requested and were allowed 14 days thereafter to submit proposed findings of fact and conclusions of law. These have been received, and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

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

For Respondent: Paul M. Glenn, Esquire

2900 Independent Square

Jacksonville, Florida 32202

The Respondent requested a hearing when it was notified by the Department that its sign adjacent to Southside Boulevard near the intersection of Southside Boulevard and Atlantic Boulevard, in the City of Jacksonville, Florida, must be removed because this sign did not have issued to it a permit from the Department.

Subsequently, the Department filed a clarification stating that the location of the Respondent's sign was unpermittable because of the spacing rule. Thus, the issue is whether the Respondent's sign can be permitted by the Department, or should be removed.

FINDINGS OF FACT

1. The Respondent, Atlantic Outdoor Advertising, Inc., has erected a sign adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida. Atlantic Boulevard is a federal-aid primary highway, while Southside Boulevard is not.

   
   

2. The place where the Respondent erected the subject sign is within 660 feet from Atlantic Boulevard, and this sign is visible from the main-traveled way of Atlantic Boulevard.

   
   

3. The subject sign is approximately 300 feet from another sign, owned by Naegele Outdoor Advertising Company, which was permitted by the Department in 1980 and 1981. The Naegele permits are still valid, and they authorize a sign within 660 feet of Atlantic Boulevard on the same side of the road as the Respondent's subject sign.

   
   

4. When the Respondent erected its sign it had obtained a building permit from the City of Jacksonville, and it holds a lease to the site where the sign is located, but the Respondent does not have a state permit for its sign and no state sign permit has been applied for by the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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 authority to regulate outdoor advertising signs and issue permits there for throughout the State of Florida, pursuant to Chapter 479, Florida Statutes.

   
   

6. Section 479.07(1), Florida Statutes, prohibits the erection of an outdoor advertising sign on any portion of the federal-aid highway system without first obtaining a permit issued by the Department of Transportation.

   
   

7. Section 479.11(1), Florida Statutes, prohibits the erection of a sign within 660 feet of the nearest edge of the right-of-way of any portion of the federal-aid primary system without a state permit.

   
   

8. Thus, not only the federal-aid primary road is controlled, but the controlled area extends to any location within 660 feet of the federal-aid primary road. The Respondent's sign

   which is the subject of this proceeding is within 660 feet of Atlantic Boulevard, a federal-aid primary road; consequently if it is visible from the main-traveled way of Atlantic Boulevard, it is required to be permitted by the Department.

   
   

9. A "sign" is defined in Section 479.01(14), Florida Statutes, as any combination of structure and message in the form of an outdoor sign, any part of the copy of which is visible from any place on the main-traveled way. Subsection (23) of this statute defines "visible sign" as a sign whose copy is capable of being seen, whether or not legible, without visual aid by a person of normal visual acuity. The Respondent's subject sign can be seen from the main-traveled way of a federal-aid primary road, Atlantic Boulevard, and thus it cannot remain there without a state permit issued by the Department.

   
   

10. Section 479.07(9)(a), Florida Statutes, prohibits the issuance of a permit by the Department for any sign which was not permitted by July 1, 1984, unless such sign is located at least 1,000 feet from any other permitted sign on the same side of a federal-aid primary road. The subject sign is closer than 1,000 feet from the permitted Naegele sign, it is on the same side of the road, the site is within the controlled portion of the federal-aid primary highway, and the sign is visible from the main-traveled way of the federal-aid primary road. Consequently, the subject sign needs a state sign permit. However, such a

permit cannot be issued due to the spacing rule. Therefore, it is an illegal sign and should be removed.

RECOMMENDATION

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

RECOMMENDED that the outdoor advertising sign of the Respondent, Atlantic Outdoor Advertising, Inc., located adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida, be removed.

THIS RECOMMENDED ORDER entered this 18th day of June, 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 18th day of June, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3021T

Rulings on Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

Rulings on Respondent's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted, but irrelevant.

5. Accepted, but irrelevant.

6. Accepted, but irrelevant.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted.

COPIES FURNISHED:

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

Paul M. Glenn, Esquire 2900 Independent Square

Jacksonville, Florida 32202

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

A. J. Spalla, Esquire General Counsel

Department of Transportation

562 Haydon Burns Bldg. Tallahassee, Florida 32301

Docket for Case No: 85-003021

Orders for Case No: 85-003021