STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 86-0371T

) 86-0452T

NATIONAL ADVERTISING COMPANY, )

)

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 these consolidated cases on June 5, 1986, in Orlando, Florida. The transcript was filed on August 14, 1986, and the parties were allowed 30 days thereafter to submit proposed findings of fact and conclusions of law. These were received and have been considered. 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: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

By Violation Notice issued on December 16, 1985, the Respondent's sign on 1-95, 1.66 miles north of SR 50 in Brevard County, is charged with violation of the Outdoor Advertising Act by not having a state sign permit, by being located in an area without permittable zoning, and by violating the spacing rule. By separate notice issued on December 16, 1985, the Department seeks to revoke

permit number 4410-10 issued for the subject sign because this sign was removed, and as a non-conforming sign it could not be reerected.

The issue is whether the Respondent's sign violates the statutes and rules as alleged.

FINDINGS OF FACT

1. In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida.

   
   

2. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10.

3. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971.

   
   

4. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign.

   
   

5. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards.

   
   

6. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was

   $1,055.00.

   
   

7. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location.

   
   

8. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and 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 therefor, pursuant to Chapter 479, Florida Statutes.

   
   

10. In its Violation Notice, the Department charges the Respondent with violating Section 479.07(1), Florida Statutes (Supp. 1984), by not having a state sign permit for the subject outdoor advertising structure. This statute provides in part:

    
    

    A person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on any portion of the interstate without first obtaining a permit for the sign from the Department and paying the annual fee as provided.

    
    

    Since the Department issued permit number 4410-10 for the subject sign in 1971, and this sign has been maintained by the Respondents under the authority of permit number 4410-10 since 1971, this charge should be dismissed.

    
    

11. The Department also charges the Respondent with violating the provisions of Section 479.11(1), Florida Statutes (Supp. 1984), by having its outdoor advertising structure in an area with unpermitted zoning. This statute provides in part:

    
    

    No sign shall be erected, used, operated, or maintained within 660 feet of the nearest

    edge of the right-of-way of any portion of the interstate highway system or the federal- aid primary system, except as provided in Sections 479.111 and 479.16.

    
    

    The applicable provisions of Section 479.111, Florida Statutes, provide that signs shall be allowed within the controlled portions of the interstate highway system if located in commercially-zoned and industrially-zoned areas, or commercially- unzoned and industrially-unzoned areas. Section 479.16, Florida Statutes, does not pertain to the subject proceeding. The foregoing provisions of Chapter 479, Florida Statutes, regulating outdoor advertising structures located adjacent to interstate and federal-aid primary highways were enacted during a special legislative session held in December, 1971. The subject sign structure was Constructed by the Respondent in 1968, and, as a result of the 1971 legislative changes, became nonconforming. One of the Department's witnesses testified that the subject sign was permitted as a nonconforming sign because of the lack of permittable zoning., Thus, the Respondent has not violated the provisions of Section 479.11(1), Florida Statutes (Supp. 1984), and this charge should be dismissed.

    
    

12. The final charge contained in the Notice of Violation is that the Respondent violated Section 479.07(9)(a) 1, Florida Statutes (Supp. 1984), in that the sign in question violates the spacing rule pertaining to signs located adjacent to interstate highways. This statute provides in part:

    
    

    A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least 1,500 feet from any other permitted sign on the same side

    of the highway, if on an interstate highway.

    
    

    This statute did not become effective until July of 1984. The sign structure and the permit issued therefor predated the effective date of this statute. The spacing along interstate highways within the State of Florida prior to the effective date of F.S. 479.07(9)(a) l, Florida Statutes, was controlled by Rule 14-10.06, Florida Administrative Code, which provided that:

    
    

    Along interstate highways no two structures shall be spaced less than 1,000 feet apart on the same side of the highway facing the same direction.

    
    

    Since the closest sign that the Department alleges creates the spacing violation is 1,100 feet from the subject sign, the Respondent has not violated either Section 479.07(9)(a)1, Florida Statutes, or Rule 14.10.06, Florida Administrative Code, as they relate to spacing, and this charge should also be dismissed.

    
    

13. The Department's Notice of Intent to Revoke permit number 4410-10 charges the Respondent with violating Rule 14-10.07, Florida Administrative Code, by removing and re- erecting a nonconforming sign. Subsection (2)(c) of this rule provides:

Nonconforming signs which are destroyed by

an act of God may not be reerected. Destroyed is defined as when the new materials costs to

reerect the sign exceed 50 percent of the physically depreciated value of the structural materials in the sign, immediately prior to destruction.

The Respondent's witness offered precise testimony that the physically depreciated value of the structural materials in the sign immediately prior to the wind damage caused by Hurricane Elena was $1,055.00. This witness also testified in detail that the cost to repair the wind damage sustained as a result of the hurricane was $308.25. The Department offered no rebuttal evidence relating to the physically depreciated value of the structural materials in the sign immediately prior to the hurricane, or the cost to repair the wind damage sustained by the sign. The competent, substantial evidence in the record requires a finding that the cost to repair the subject sign did not exceed 50 percent of the physically depreciated value of the structural materials in the sign. The sign, therefore, was not destroyed by an act of God as contemplated by the provisions of Rule 14-10.07(2)(c), Florida Administrative Code and the revocation proceedings should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking

removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in

Brevard County, Florida, be DISMISSED; and it is further

RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED.

THIS RECOMMENDED ORDER entered this 16th day of October, 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 16th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T

86-0452T

Rulings on Petitioner's proposed findings of fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Rejected as contrary to the weight of the evidence.

6. Rejected as contrary to the weight of the evidence.

7. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact.

Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted.

COPIES FURNISHED:

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

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

A. J Spalla, Esquire General Counsel

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 86-000371

Orders for Case No: 86-000371