STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1735T

)

JOE BRYANT, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1736T

)

JOE BRYANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on May 20, 1987, in Bartow, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

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

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Joe Bryant, pro se

Post Office Box 805

Dade City, Florida 33525

ISSUES

Case No. 87-1735T: Whether respondent's sign located .14 miles east of Old San Ann Road on State Road 52 violates the spacing rule and was erected without a required permit.

Case No. 87-1736T: Whether respondent's sign located .07 miles west of Ann Road, on State Road 52 was erected without the required permit.

BACKGROUND

On March 11, 1987, respondent was notified that his sign on State Road 52,

1. miles west of Ann Road was in violation of Section 479.105, Florida

   Statutes, in that the sign was erected without the required permit. By notice dated March 12, 1987, respondent was notified that his sign .14 miles east of Old San Ann Road on State Road 52 was in violation of Section 479.105, Florida Statutes, in that it was erected without the required permit, and in violation of Section 479.07(9)(2)2, [sic], in that the sign violated the spacing rule. On April 17, 1987, respondent filed an answer to both notices requesting an administrative hearing. On April 22, 1987, the Department of Transportation referred both cases to the Division of Administrative Hearings for further proceedings. The two cases were consolidated at the hearing.

   
   

   At the hearing the petitioner presented the testimony of Linda K. Brown, and introduced eight exhibits into evidence. Exhibit 1 relates to both cases, Exhibits 2 through 5 relate to Case No. 87-1735T, and Exhibits 6 through 8 relate to Case No. 87-1736T. The respondent testified on his own behalf. No exhibits were offered by the respondent.

   
   

   The petitioner filed proposed findings of fact and conclusions of law, and a ruling on each of the proposed findings of fact has been made in the appendix to this order. Respondent filed an "Answer To Hearing & Complaint", which has been treated as proposed conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   Case No. 87-1735T:

   
   

   1. Respondent owns an outdoor advertising sign adjacent to State Road 52 and .14 miles east of Old San Ann Road. The sign advertises Dick Jarrett Ford, Dade City. The sign site is located within the corporate limits of Dade City, Florida. At the site of the sign, State Road 52 is a federal-aid primary highway. The sign is located approximately 100 feet from the edge of the highway pavement, and the edge of the highway pavement is 12 feet from the center line of the road. There is a 50-foot right-of-way on the eastbound side of the road, which places the sign approximately 62 feet from the right-of-way. The sign is visible to traffic on State Road 52.

      
      

   2. When the sign was observed by Linda K. Brown, an Outdoor Advertising Inspector for the Department of Transportation, the sign had no permit tag attached to it. Further, the sign was located 460 feet from a permitted sign on the same side of the highway. A review of Department of Transportation records revealed that no permit had been issued for the sign in question. The inspection and review by Ms. Brown resulted in the issuance of the Notice of Violation dated March 12, 1987. Case No. 87-1736T:

      
      

   3. Respondent owns a sign located on the eastbound side of State Road 52,

      .07 miles west of Ann Road, in Pasco County, Florida. At that location, State Road 52 is a federal-aid primary highway. The sign is located approximately 50 feet from the edge of the road pavement, which is 12 feet from the center line of the road. There is 50-foot right-of-way on the eastbound side of the road. Thus, the sign is approximately 12 feet from the road right-of-way. The sign is visible to traffic on State Road 52.

      
      

   4. The sign is owned by Joe Bryant, the respondent, and is located on property where Mr. Bryant has his residence. The sign is located approximately

      50 feet from his front door. When Ms. Brown initially observed the sign, on March 11, 1987, the sign contained an advertisement for General Home Development and the model center located on the 98 Bypass. The model center is approximately 2 miles from Mr. Bryant's property. Mr. Bryant does not work as a

      sales representative for General Home Development and General Home Development has no offices or sales representatives on his property. Respondent's intent is to receive revenue for the subject sign.

      
      

   5. On March 11, 1987, the subject sign had no permit tag attached to it, and a subsequent review of the records of the Department of Transportation showed that no permit had been issued for the sign. Based on the inspection and review by Ms. Brown, the Notice of Violation was issued. Subsequently, the face of the sign was removed by Mr. Bryant.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   7. The Department of Transportation has the authority to regulate outdoor advertising signs pursuant to the provisions of Chapter 479, Florida Statutes. Section 479.07, Florida Statutes, provides as follows:

      
      

      1. Except as provided in s.479.16, a person may not erect, operate, use, or maintain. 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....

         (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway....

         (9)(a) A permit shall not be granted for any sign...unless such sign is located at least:

         2. One thousand feet from any other permitted sign on the

         same side of the highway, if on a federal-aid primary highway.

         
         

   8. Section 479.105(1), Florida Statutes, provides as follows:

      
      

      Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside outside an incorporated area or adjacent to the right-of-way on any

      portion of the interstate or federal- aid primary highway system, which sign was erected, operated, or

      maintained without the permit required by 5.479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

      
      

   9. Both of the signs in question are located adjacent to the right-of-way of State Road 52, a federal-aid primary highway and are visible to traffic traveling on State Road 52. Thus a permit was required for each of the signs as provided by Section 479.07(1), Florida Statutes.

      
      

   10. Respondent argues that the sign located .14 miles east of Old San Ann Road does not require a permit because the sign is located within the corporate limits of Dade City, Florida. However, Section 479.07 requires a permit to be obtained for any sign "on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system State Road 52 is a federal-aid primary highway, and therefore the fact that the sign is located within the corporate limits of Dade City does not exempt the sign from the permitting requirements. The Department of Transportation controls advertising structures along state road systems outside of cities and towns and advertising structures along all interstate and federal-aid primary highway systems whether within incorporated cities or outside the city limits. Florida Department of Transportation v. E. T. Legg & Co. 472 So 2nd 1336 (Fla. 4th DCA, 1985)

       
       

   11. Respondent also argues that the Department of Transportation does not have jurisdiction over the sign located .07 miles west of Ann Road because the sign is located on the same property as his residence. The only exceptions to the permit requirement are stated in Section 479.16. None of the exemptions listed in Section 479.16 apply in this case. There is no exemption for signs located on the same property as the owners' residence. Respondent cited to Marshall v. Kansas City, 355 S.W.2d 877 (Mo. 1962) to support his argument that the Department of Transportation could not constitutionally regulate a sign located on his home property. However, it is difficult to find the relationship between that case and respondent's argument. That case merely held that an ordinance designed to prevent discrimination by race or color in restaurants was valid and a proper exercise of the police power of the municipality. Both of the outdoor advertising signs owned by the respondent were erected without the appropriate permits required by Chapter 479. Further, the sign located .14 miles east of Old San Ann Road was erected within one thousand feet from a permitted sign which violates the spacing requirements of Section 479.07(9)(a)2. Section 479.105, Florida Statutes states that any sign located adjacent to the right-of-way on any portion of the federal-aid primary highway system which was erected without the permit required by Section 479.07(1) is declared to be a public nuisance and a private nuisance and shall be removed. Both these signs were erected and maintained without the permit required by Section 479.07(1), and therefore both signs are public and private nuisances and should be removed as statutorily mandated. Although respondent removed the face of the sign involved in Case No. 87-1736T, the sign includes both the face and structure. Therefore removal of the sign requires removal of both the face and the structure.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that the signs involved

in Case No. 87-1735T and 87-1736T were erected without the permits required by statute, directing that respondent remove both signs, including the structures, within thirty (30) days from the day of the Final Order, and providing that should respondent fail to comply with the order, the petitioner shall remove the signs and charge the respondent for the cost of removal.

DONE and ORDERED this 25th day of June, 1987, in Tallahassee, Florida.

DIANE A GRUBBS

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 25th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1735T & 87-1736T

Petitioner's Proposed Findings of Fact

1. Accepted in paragraph 1

2. Accepted in paragraphs 1 & 2

3. Accepted in paragraph 3

4. Accepted in paragraphs 4 & 5

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, Florida 3299-0458

Joe Bryant

Post Office Box 805

Dade City, Florida 33525

Kaye Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Docket for Case No: 87-001735

Orders for Case No: 87-001735