STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL ADVERTISING COMPANY, )

)

Petitioners )

)

vs. ) CASE NO. 86-4739T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 27, 1987 in Fort Lauderdale, Florida. The parties were allowed through August 5, 1987 to submit post-hearing memoranda supportive of their respective positions. The parties proposed memoranda were considered by me in preparation of this Recommended Order. The proposed findings of fact are incorporated herein.

APPEARANCES

For Petitioner: Gerald S. Livingston Esquire

200 East Robinson Street 1150 Hartford Building Orlando, Florida 32801

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

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 ISSUE

The issue presented for decision herein is whether or not the sign sites in question, adjacent to 1-95 in Martin County, Florida, qualify for the issuance of outdoor advertising sign permits or, alternatively, whether the proposed outdoor advertising structures at the proposed locations are prohibited from being permitted because of restrictions contained in Section 479.11(10), Florida Statutes.

INTRODUCTION AND BACKGROUND

On or about September 24, 1986, Petitioner, National Advertising Company, made application for three outdoor advertising sign permits for sign structures to be located adjacent to 1-95 in Martin County, Florida, south of State Road

1. By Memorandum of Returned Application dated October 27, 1986, the Department of Transportation, State of Florida, (Respondent), advised Petitioner

   that the sign permit applications, as submitted, were unpermittable based upon Section 479.11(10), Florida Statutes, which prohibits signs from being erected on new highways outside of urban areas.

   
   

   At the commencement of the hearing, the parties stipulated to the following facts and exhibits:

   
   

   1. Petitioner's Composite Exhibit 1, consisting of four pages. The first two pages being the applications for outdoor

      advertising sign permits facing north and south, 20 feet from the right-of-way of 1-95, 1 mile south of State Road 76. The third page being the Martin County Building Permit for the sign structure and the fourth page being the land lease between National Advertising Company and the property owner.

   2. Petitioner's Composite Exhibit 2, consisting of four pages. The first two pages being the applications for outdoor

      advertising sign permits facing north and south, and 20 feet from the right-of-way of I-95; 2300 feet south of State Road 76. The third page being the Martin County Building Permit for the sign structure and the fourth page being the land lease between National Advertising Company and the property owner.

   3. Petitioner's Composite Exhibit 3, consisting of four pages. The first two pages being the applications for outdoor

      advertising sign permits facing north and south, 20 feet from the right-of-way of 1-95, 3800 feet south of State Road 76. The third page being the Martin County Building Permit for the sign structure and the fourth page being the land lease between National Advertising Company and the property owner.

   4. Petitioner's Exhibit 4, being a one page Memorandum of Returned Application from the Department of Transportation, State of Florida,

      to National Advertising Company, dated October 27, 1986, and signed by Fred Harper.

   5. A stipulation that the area in question is adjacent to Interstate

      95, and the portion of Interstate

      95 in question is a part of the Interstate Highway System as defined by Chapter 479; Florida Statutes.

   6. Respondent's Exhibit i; depicting the Federal Systems Map for Martin County reflecting the Federal-Aid Primary Urban, Secondary and Urban Boundaries with the most recent revision date being October 8, 1985.

   7. Respondent's Exhibit 2, consisting of a three page map of the urban area for Martin County, Florida, which was approved by the Federal Highway Administration on October 8, 1985.

FINDINGS OF FACT

1. Petitioner, National Advertising Company, submitted applications for outdoor advertising sign permits to construct three (3) back-to-back outdoor advertising structures displaying six (6) outdoor advertising faces. One structure was to be located on the west side of 1-95, one mile south of State Road 76; the next structure was to be located on the west side of I- 95, 2300 feet south of State Road 76; and, the third structure was to be located on the west side of 1-95, 3800 feet south of State Road 76, all in Martin County, Florida. The applications submitted to the Department of Transportation by National Advertising Company had attached to them appropriate land leases and copies of appropriate Martin County Building Permits. The applications submitted to the Department by National Advertising Company were received by the Department on September 24, 1986.

   
   

2. On October 27, 1986, the Department, acting by and through its District Administrator for Outdoor Advertising for District IV, Mr. Fred J. Harper, issued its Memorandum of Returned Application rejecting the applications submitted by National Advertising Company for the permits in question, based on Section 479.11(10), Florida Statutes.

   
   

3. The first two sites in question are located on a segment of the Interstate Highway System in Martin County which was recently completed. The remaining site, one mile south, is slated to be open to the motoring public during December, 1987.

   
   

4. Current urban area Boundaries are based on the 1980 U.S. Census designations, recommendations of the Metropolitan Planning Agency and approval by the Department and the Federal Highway Administration. Urban area boundaries can be inside or outside of the city limit, depending on population density.

   The current urban area designation for Martin County shows the area south of SR76, adjacent to the west side of 1-95, (the proposed site locations) to be outside the urban boundary.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this action. Section 120.57(1), Florida Statutes.

   
   

6. The parties were duly noticed pursuant to notice provisions of Chapter 120, Florida Statutes.

   
   

7. The Department of Transportation derives its authority to regulate outdoor advertising signs and issue permits therefor pursuant to Chapter 479, Florida Statutes.

   
   

8. Section 479.01, Florida Statutes (1985) provides in part:

   
   

   1. "New Highway" means the construction of any roads paved or unpaved, where no road previously existed or the act of paving any previously unpaved road.

      7. Section 334.03(25), Florida Statutes (1985) provides in part:

      
      

      "Urban Area" - a geographical region comprising as a minimum the United State Bureau of Census boundary of an urban place with a population of 5,000 or more persons, expanded to include adjacent areas as provided for by Federal Highway Administration Regulations.

9. Additionally, Section 479.01(21), Florida Statutes (1985) provides: "Urban area" has the same meaning

   as defined in s. 334.03(25).

   
   

10. The location of the sign sites in question herein is in an area, adjacent to an interstate highway, outside of a designated urban area.

    
    

11. Section 479.07, Florida Statutes, provides in part:

    
    

    1. Except as provided in

       s. 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section.

12. Section 479.11, Florida Statutes provides in pertinent parts as follow:

    
    

    No sign shall be erected, used, operated or maintained:

    
    

    (10) which is on a new highway outside an urban area and otherwise would have been subject to the permit requirements of this chapter.

    
    

13. Competent and substantial evidence was offered herein to establish that the subject sites in question are located on a new highway outside an urban area and are subject to the permit requirements of Chapter 479, Florida Statutes. As such, Section 479.11(10), Florida Statutes prohibits the erection or maintenance of the signs in question since they are adjacent to a new highway of the interstate highway systems specified in Chapter 479, Florida Statutes. Finally, the subject signs are not otherwise permittable pursuant to Chapter 479, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Transportation enter a Final Order denying Petitioner's permit applications.

RECOMMENDED this 29th day of September, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

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 29th day of September, 1987.

COPIES FURNISHED:

Gerald S. Livingston, Esquire

200 East Robinson Street Post Office Box 2151 Orlando, Florida 32802

Vernon L. Whittier, Jr., Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

NATIONAL ADVERTISING COMPANY,

Petitioner,

vs. CASE NO. 86-4739T

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Petitioner, NATIONAL ADVERTISING, has filed Exceptions to Recommended Order which are considered and addressed below.

The Findings of Fact in the Recommended Order are considered correct and are incorporated as a part of this Final Order. The Conclusions of Law are also considered correct with the following exception.

The last sentence of the Conclusions of Law is rejected. The Record is unclear as to whether the proposed sign sites would meet all of the criteria of Chapter 479, i.e., spacing, commercial area, etc. However, the issue presented in applying Section 479.11(10), Fla. Stat. (1985) is not whether the proposed signs meet the permit requirements of Chapter 479, but whether they are subject to the permit requirements. Clearly, the sign sites in question being within 660 feet of Interstate 95 are subject to the permit requirements of Chapter 479.

Petitioner's exception to the Hearing Officer's interpretation of Section 479.11(10), Fla. Stat. (1985) is without merit. The phrase "new highway" is not restricted to the state highway system as argued by Petitioner. Rather the term "new highway" as defined in Section 479.01(11), Fla. Stat. (1985) includes the "construction of any road" (underlining added) which the Department interprets

as including new interstate construction. The provisions of Section 479.11(10), Fla. Stat. (1985) prohibit the erection of outdoor advertising signs adjacent to new interstate highways.

ACCORDINGLY, IT IS ORDERED that Petitioners applications to erect three outdoor advertising signs on the west side of 1-95, 1 mile 2,300 feet and 3,800 feet south of State Road 76, in Martin County, Florida, are DENIED.

DONE AND ORDERED this 4th day of December, 1987.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

JAMES E. BRAEDWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

GERALD LIVINGSTON, ESQUIRE

Post Office Box 2151 Orlando, Florida 32802

V. L. WHITTIER, ESQUIRE Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458

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: 86-004739

Orders for Case No: 86-004739