STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 89-3819T

) 89-3820T

MAXMEDIA OUTDOOR ADVERTISING, ) 89-3821T

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 15, 1989, in Orlando, Florida.

APPEARANCES

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

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Mac Davidson

Maxmedia Outdoor Advertising Post Office Box 847

Winter Park, Florida 32790 STATEMENT OF THE ISSUES

This consolidated proceeding concerns three notices of violations of Chapter 479, Florida Statutes, relating to outdoor advertising. The issue is whether those violations have occurred, and, if so, what remedial action should be taken with regard to the offending sign.

PRELIMINARY STATEMENT

On June 1, 1989, the Florida Department of Transportation issued violation notices #5-75-013-89 and #5-75-014-89 to Maxmedia Outdoor Advertising. A third violation notice #5-77-002-89 was issued on June 9, 1989.

After timely requests for hearing, the cases were referred to the Division of Administrative Hearings, and were consolidated, sua sponte, in an order dated August 15, 1989.

At the hearing, the agency presented the testimony of two witnesses, Michael Dollery and Peter W. Wright. Of eleven exhibits offered by the agency, all were received in evidence, without objection, except for exhibit #7, which was rejected as lacking probative value. This latter exhibit was a rough hand- sketched diagram of the sign and roadway in issue.

Mac Davidson, owner of Maxmedia, testified in his own behalf, and presented the testimony of his wife, Riki Davidson. Respondent's composite exhibit #1, a series of photographs, was received in evidence.

After the hearing the transcript was prepared and filed, and Petitioner submitted a proposed recommended order. The proposed order includes two lengthy findings of fact which are substantially adopted herein.

FINDINGS OF FACT

1. Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50.

   
   

2. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way.

   
   

3. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made.

   
   

4. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way.

   
   

5. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T.

   
   

6. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection.

   
   

7. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard.

   
   

8. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high.

   
   

9. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4.

   
   

   DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate.

   As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4.

   
   

10. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4.

    
    

    Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation.

    
    

11. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader."

    
    

    The sign was permitted by the City of Lake Mary on October 17, 1984.

    
    

12. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

14. The Department of Transportation has the authority to administer and enforce the provisions of Chapter 479, Florida Statutes, relating to the regulation of outdoor advertising along the highways of the state, pursuant to Section 479.02, Florida Statutes.

    
    

15. The notices of violation in Cases #89-3819T and #89-3820T cite the following violations by the sign on State Road 551, in Orange County:

    
    

    Section 479.07(5)(a), F.S. "Failure to Display Current Valid Permit Tag" Section 479.11(8), F.S. "Within State Right-of-Way"

    Section 479.11(3), F.S. "Failure to Observe 15 feet Set-Back"

    
    

16. Those sections provide, in pertinent part:

    
    

    479.07 Sign permits --

    (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; and it shall be attached in such a manner as to be plainly visible from the main- traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted

    site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted

    site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void.

    * * *

    479.11 Specified signs prohibited.--No sign shall be erected, used, operated, or maintained:

    * * *

    (3) Within 15 feet of the outside boundary of the right-of-way of any highway on the State Highway System outside of an incorporated area or on the interstate or federal-aid primary highway system outside an incorporated area.

    * * *

    (8) Which is located upon the right-of-way of any highway on the State Highway System, interstate highway system, or federal-aid primary highway system.

    * * *

    
    

17. The agency proved that the sign in question, both sides, failed to display its permits and encroached on the right-of-way, thus violating the cited provisions of Chapter 479, F.S.

18. The notice of violation in Case #89-3821T cites these violations: Section 479.07(1), F.S. "No State Sign

    Permit"

    Section 479.07(9)(a)1., F.S. "Violates Spacing Rule (Interstate)."

    Section 479.02(1), F.S. "Within 500' of Restricted Interchange"

    
    

19. In its proposed conclusions of law DOT concedes that the latter provision regarding 500 feet does not apply when the sign site is within a city's corporate limits.

    
    

20. The cited portions of Section 479.07, F.S. provide:

    
    

    479.07 Sign permits.--

    (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.

    * * *

    (9)(a) 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. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. (emphasis added)

    
    

21. Respondent's evidence relating to the visibility of the sign from 1-4 is more persuasive than that of the department. DOT's witness never stated that he personally viewed the sign from the interstate or when or how he personally inspected the sign. DOT did not present photographs showing the sign from 1-4.

    
    

22. Moreover, the critical issue is whether the sign is "on" the interstate, not whether it is visible from the interstate.

    
    

23. In a recent case precisely on point, Hancock Advertising, Inc. v. Department of Transportation, 14 FLW 2285 (opinion filed on 10/26/89, in 3rd DCA Case #88-480), the court held that the statutory language, cited above, regarding signs on an interstate highway, did not mean visible from the interstate. The Hancock sign, like Maxmedia's, was double-faced and at the intersection of 1-95 and State Road 836, with its eastern face running parallel to the interstate. Applying ordinary usage of the word, "on," and considering evidence that the sign was placed to be seen by vehicles on State Road 836, the court held that the Hancock sign was on State Road 836, and not on the interstate, and reversed DOT's order for its removal.

    
    

24. The agency failed to prove the violations cited in Case #89-3821T.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T.

DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

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 27th day of October, 1989.

COPIES FURNISHED:

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

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Mac Davidson

Maxmedia Outdoor Advertising Post Office Box 847

Winter Park, Florida 32790

Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation

Haydon Burns Bldg.

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Bldg. 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-003819

Orders for Case No: 89-003819