STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2943T

)

McDONALD'S CORP., )

)

Respondent, )

and )

)

EDDY CORP., )

)

Intervenor. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on December 10, 1986, in Holly Hill, Florida, by Stephen F. Dean, assigned Hearing officer of the Division of Administrative Hearings. This hearing arose on a Notice of Alleged Violation filed by the Department of Transportation against the Respondent asserting that the Respondent's sign located .17 mile east of State Road 46 on the east bound side of Interstate 4 had no State sign permit, violated the spacing requirements, and located too close to a restricted interchange. The Respondent filed a request for an administrative hearing and Eddy Corp. was subsequently permitted to intervene.

Prior to the hearing, the Department moved to dismiss McDonald's for having filed its request for an administrative hearing over 30 days from the Notice of Alleged Violation. However, at the hearing the Department withdrew its Motion to Dismiss.

The proposed findings submitted by the Department were read, considered, and adopted with some minor grammatical changes and reorganization. The Respondent and Intervenor did not file any proposed findings.

Proposed Findings of Fact and Conclusions of Law were filed by the Department of Transportation and are treated in the Appendix attached hereto. McDonald's filed as a late filed exhibit a plan of their proposed use of the property on which the sign is located. The Department moved to strike the late filed exhibit. The Department's motion is denied.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

For Respondent: Jerry B. Smith, Esquire

Post Office Box 9166

Coral Springs, Florida 33075

For Intervenor: Frederick B. Karl, Jr., Esquire

COBB & COLE

Post Office Box 191

Daytona Beach, Florida 32015 ISSUES

The Respondent admits that the sign does not possess a permit, is too close to a restricted intersection, and is too close to another permitted sign to be legally permitted. McDonald's asserts that the sign is an on-premises sign. A sign which is an on-premises sign is not subject to regulation. Therefore, the sole issue is whether the sign in question is an on-premises sign.

FINDINGS OF FACT

1. The sign in question is located .17 mile east of State Road 46 on the east bound side of Interstate 4 in Seminole County. The sign is a two-sided sign bearing the McDonald's logo and name, mounted on the top of a high monopole located adjacent to the interchange ramp 56 feet from the highway right of way. The sign is visible from the main traveled way of both lanes of the interstate highway.

   
   

2. The Respondent, McDonald's, obtained a permit from Seminole County for the erection of the sign but did not apply to the Department for an outdoor advertising permit.

   
   

3. The subject sign was noticed for violation on April 15, 1986, for having no State permit, for violating the spacing rules for signs on interstate highways, and for being within 500 feet of a restricted interchange.

   
   

4. The McDonald's restaurant, owned by the Respondent and advertised by the subject sign, is located on a 1.6 acre parcel of land with 250 feet of frontage on Heckman Drive and approximately 425 feet deep. Heckman Drive runs north and south parallel to Interstate 4 and intersects State Road 46 east of Interstate 4. From the 1.6 acre parcel of land, a "7" shaped piece of land 10 feet wide runs over 400 feet to the north and approximately 160 feet to the west to a point 56 feet from the right of way of Interstate 4 where the subject sign is erected. The strip of property is not developed and contains no buildings or structures except the subject sign.

   
   

5. There is no activity currently at the sign site. A drainage ditch separates the sign from the restaurant and a power line right of way intersects the strip.

   
   

6. McDonald's offered a plan to use the connecting property for pedestrian walkway. No contracts were introduced

   showing any planned development in accordance with the plans presented.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case and this Recommended Order is entered pursuant to provisions of Chapter 120.57(1), Florida Statutes. The Department

   of Transportation is authorized to regulate outdoor advertising pursuant to Chapter 479, Florida Statutes. Section 479.02, Florida Statutes, provides that the Department will regulate outdoor advertising signs; however, Section 479.16, Florida Statutes, provides an exemption for:

   
   

   "(1) Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment, or which identify the principal or accessory merchandise, services, activities, or enter- tainment sold, produced, manufactured, or furnished on the premises of the establish- ment..."

   "Premises" is defined by Section 479.01, Florida Statutes, as: "(13) 'Premises' means an area of land

   occupied by the buildings or other physical uses which are an integral part of the activity conducted upon the land in such open spaces as are arranged and designed to be used in conjunction with that activity."

   
   

   The sign in question is erected on a "7" shaped strip of land 10 feet wide connected to the parcel upon which the restaurant is located. It is approximately 580 feet along the 10 foot wide strip from the restaurant to where the sign is located 56 feet from the Interstate right of way. The narrow width of the strip and the power line easement make it impractical to develop the strip as "an integral part of the activity conducted" at the restaurant.

   
   

8. Although McDonald's submitted plans for the development of the strip, as a pedestrian walk, it was clear that this use of the strip was an after thought and an attempt to fit within the exemptions to Chapter 479, Florida Statutes. The facts in this case do not support a finding that the subject sign is an on-premises sign within the meaning of Chapter 479, Florida Statutes.

   
   

9. Having determined that the sign is not an on-premises sign, the evidence presented and the stipulation of the parties establish that the sign is located approximately 56 feet from the nearest right of way of the Interstate highway, that the sign is located on the same side of the Interstate highway within 1500 feet of a permitted sign, is located within 500 feet of a restricted intersection, and does not have an outdoor advertising permit.

   
   

10. Section 479.07(9)(a), Florida Statutes, provides that an outdoor advertising sign may not be erected without first obtaining a permit from the Department and that, for a permit to be granted, the sign may not be located within 1500 feet from any other permitted sign the same side of the highway if it is an Interstate highway. Section 479.11, Florida Statutes, provides that no sign shall be erected, used, operated or maintained within 600 feet of the nearest edge of the right of way of any portion of the Interstate highway system. Rule 14-10.09, Florida Administrative Code, provides that outside of incorporated towns and cities no structure may be located adjacent to or within

500 feet of an interchange on an Interstate highway. The subject sign violates all three of the provisions cited above. In addition to which the subject sign does not have a permit as required by Section 479.07, Florida Statutes.

RECOMMENDATION

Having found that the subject sign is in violation of Section 479.07, Florida Statutes, and fails to qualify for the exemptions of Section 479.16 and may not be permitted because it violates the provisions of Section 479.07(9)(a), Section 479.11, Florida Statutes, and Rule 14-10.09, Florida Administrative Code, it is

RECOMMENDED that the Department enter a Final Order directing the Respondent to remove the subject sign and give the Respondent notice that if the sign is not removed within 30 days, the Department will remove the sign and take action to recover the cost of removal from the Respondent.

DONE and ORDERED this 16th day of February, 1987, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1987.

COPIES FURNISHED:

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Jerry B. Smith, Esquire Post Office Box 9166

Coral Springs, Florida 33075

Frederick B. Karl, Jr., Esquire COBB & COLE

Post Office Box 191

Daytona Beach, Florida 32015

Kaye Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Thomas Bateman, Esquire General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs.

McDONALD'S CORP., CASE NO. 86-2943T

Respondent,

and

EDDY CORP.,

Intervenor.

/

FINAL ORDER

The Record in these proceedings and the Recommended Order of the Hearing Officer have been reviewed. The Recommended Order is considered correct both in fact and in law, with the exception of the finding that the strip of land that the Respondent's sign was shaped. Actually, the strip was shaped. The Recommended Order as corrected is incorporated as part of this Final Order.

On February 24, 1987, the Intervenor Eddy Corp. ("Eddy") filed exceptions to the Recommended Order. All exceptions are considered to be without merit.

The first three exceptions pertain to the Hearing Officer's statement that the

`Respondent and Intervenor did not file any proposed findings.' Eddy did not affirmatively state that it actually sent the Hearing Officer a copy of the Proposed Findings. The Certificate of Service only reflects that counsel were provided copies. The Hearing Officer has no remand authority to consider proposed findings of fact submitted after the fact.

The final exception (Number 4) is without merit since it is an attempt to invade the Hearing Officer's prerogatives as a finder of fact in considering motive and credibility in weighing substantive evidence. The Hearing Officer enumerated at page 3 and 4 of the Recommended Order facts and circumstances that indicated that there was insufficient evidence to support a finding that the

sign in question was an on-premises sign. In addition to the Hearing Officer`s findings, it was clearly established that the proposed walkway would be a secondary and not a primary use of the property that the sign was located on. (R: 54) Thus, the proposed walkway would not be an intergal activity within the meaning of Section 479.01(13), Florida Statutes (1985).

Furthermore, Eddy's reliance on Harrison v. State, 349 So.2d 726 (Fla. 1st DCA 1977) is misplaced. Harrison interprets Section 479.16, Florida Statutes (1983), which has since been amended. With regard to the statutes governing `on premises signs' the applicable law is that which is in effect at the time of the adoption of the final order. Fuqua & Davis, Inc. v. State of Florida, Department of Transportation, 490 So.2d 1010 (Fla. 1st DCA 1986).

ACCORDINGLY, IT IS ORDERED that the sign structure owned by McDonald's Corp. located 1.7 miles east of State Road 46 on the east bound side of Interstate 4 in Seminole County, Florida is ILLEGAL and shall be removed from its present location within 20 days of the date of this order of the Department shall remove the sign.

DONE AND ORDERED this 18th day of May, 1987.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

Stephen F. Dean, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32399-0450

Jerry B. Smith, Esquire Post Office Box 9166

Coral Springs, Florida 33075

Frederick B. Karl, Jr., Esquire COBB & COLE

Post Office Box 191

Daytona Beach, Florida 32015

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 86-002943

Orders for Case No: 86-002943