STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1407T

) 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 administrative hearing in this case on September 16, 1986 in Deland, Florida. The transcript was filed on October 1, 1986, and the parties were allowed 30 days thereafter to submit proposed findings of fact and conclusions of law. To date nothing has been received from either party.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Haydon Burns Building, M.S. 58 Tallahassee, Florida 32302-8064

For Respondent: Gerald S. Livington, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

By Notice of Violation dated March 24, 1986, the Respondent's sign adjacent to U.S. 17/92, 1.75 miles north of SR 436 was cited for violations of the Outdoor Advertising Act by not having a state sign permit and for violating the spacing rule. The issue to be resolved is whether the subject sign violates the statutes and rules as alleged, and should be removed.

FINDINGS OF FACT

1. The Respondent's sign which is the subject of this proceeding was erected less than 100 feet from the right-of-way, of U.S. 17/92, one and one- half to two miles north of State Road 436, in Seminole County, Florida.

   
   

2. The subject sign is a steel monopole having two faces, one facing east and one facing west. The side facing east is visible from the main-traveled way of U.S. 17/92. The other side is not.

   
   

3. U.S. 17/92 is a federal-aid primary highway running north and south at the point where the subject sign is located.

4. The subject sign bears the copy "Spicewood - large wooded lots". This sign has no state sign permit, and none has been issued for it by the Department.

   
   

5. There is an outdoor advertising sign approximately 792 feet south of the Respondent's sign which has been permitted by the Department. Permit number ADO85-35 has been issued to Creative Signs for the sign 792 feet south of the Respondent's sign. The sign owned by Creative Signs is on the same side of U.S. 17/92 as the Respondent's sign.

   
   

   CONCLUSIONS OF LAW

   
   

6. 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.

   
   

7. Section 479.07(1), Florida Statutes, prohibits the erection of a sign on any portion of a federal-aid primary highway without a state sign permit. Pursuant to Section 479.105(1), Florida Statutes, a sign which is erected adjacent to any portion of the right-of-way of a federal-aid primary highway without the permit required by Section 479.07(1), is illegal and should be removed.

8.. The controlled portion of a federal-aid primary highway is that area which is within 660 feet of a federal-aid primary highway, pursuant to Section 479.11(1), Florida Statutes.

1. Section 479.07(9)(a)2., Florida Statutes, provides that a permit shall not be granted for any sign unless it is located at least 1,000 feet from any other permitted sign on the same side of a federal-aid primary highway.

   
   

2. Since the subject sign is within 660 feet of U.S. 17/92, a federal- aid primary highway, and is visible from the controlled road, it requires a state sign permit in order to be a legal sign. Without such a permit, the subject sign is illegal.

   
   

3. Since the Respondent's sign is not at least 1,000 feet from the sign that has been permitted to Creative Signs, located on the same side of U.S. 17/92, no state sign permit may be issued to the Respondent for the sign which is the subject of this proceeding. It should, therefore, be removed.

   
   

4. The Respondent contends that a notation on the Violation Notice incorrectly designating the location of its sign as in Orange County is a fatal error which should invalidate the Violation Notice. The actual sign location is in Seminole County, and thee remainder of the description of the sign location is accurate. A location adjacent to U.S. 17/92, 1.75 miles north of S.R. 436, is sufficient to identify the sign that was cited, and it can only place its location in Seminole County. There is no basis for any confusion over the signs's location.

RECOMMENDATION

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

RECOMMENDED that the sign owned by the Respondent, National Advertising Company, adjacent to U.S. 17/92, approximately 1.75 miles north of State Road 436, in Seminole County, be removed.

THIS Recommended Order entered on this 4th day of December, 1986, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1986.

COPIES FURNISHED:

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 323a1-8064

A. J. Spalla General Counsel

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Gerald S. Livingston, Esquire

P. O. Box 2151

Orlando, Florida 32802-2151

Docket for Case No: 86-001407

Orders for Case No: 86-001407