STATE OF FLORIDA

DIVISION OF ADMINISTATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 90-2817T

)

WILLIAM O. SALTER, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, this Matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 5, 1991.

APPEARANCES

The parties were represented as follows:

For Petitioner: Vernon Whittier, Jr.

Department of Transpotation 605 Suwanee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

For Respondent: Stephen R. Moorhead

700 South Palafox Street Suite 3C

Pensacola, Florida 32501 STATEMENT OF THE ISSUES

The issue at the hearing was whether the structure located in Escambia County on the west side of U.S. Highway 29, 0.89 mile north of Interstate 10 should be removed pursuant to Sect. 479.105, Florida Statutes.

PRELIMINARY STATEMENT

On March 20, 1990, Respondent was served with a Notice of Violation by the Department of Transportation. The Notice of Violation required the removal of an outdoor advertising sign, with a north and south facing, located in Escambia County on the west side of U.S. Highway 29, 0.89 mile north of Interstate 10.

Petitioner requested a formal hearing to contest the Department's order to remove the sign.

At the hearing, the parties stipulated to the basic facts of the case and the admission of eight exhibits into evidence. Additionally, Respondent testified in his own behalf.

Petitioner and Respondent filed Proposed Recommended Orders on July 10, 1991 and July 11, 1991, respectively. Petitioner's and Respondent's proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cummulative or subordinate. Specific rulings on the parties' proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, William O. Salter, is the owner of a parcel of property in Escambia County, Florida located adjacent to the west right-of-way of U.S. Highway 29 and approximately six-tenths of a mile north of Interstate 10 (the property). The property has approximately 50 feet of frontage on U.S. Highway 29.

   
   

2. U.S. Highway 29 is a federal-aid primary highway.

   
   

3. Around April 5, 1984, Respondent erected a structure on the property consisting of a 36 inch metal monopole and supports. The structure was primarily erected for the purpose of supporting an on-premise outdoor advertising sign and specifically to place a sign on the structure advertising the property for sale. No state permit was required for either the structure, by itself, or for the for sale sign.

   
   

4. On February 23, 1989, Respondent entered into an agreement for the sale of the property with Rick Downs d/b/a Rick Downs Custom Paint and Body. Mr. Downs intended to use the property in his paint and body shop business. The main business was located slightly further down U.S. Highway 29.

   
   

5. As part of the agreement for sale, Respondent placed an advertisement on the structure on the property. The advertisement read: "Coming soon Rick Downs Custom Paint and Body". The advertisement consisted of a north and south facing. No state permit was obtained for the body shop sign. Importantly, at this point in time because the sale had not closed, no state permit could have been obtained since the sign's location was within 1000 feet of another permitted. See Sects. 479.07(9)(a) and 479.16(1), Florida Statutes. Therefore, unless the body shop sign fell within one of the exceptions to Sect. 479.07, Florida Statutes, the body shop sign violated the provisions of Chapter 479, Florida Statutes, which require signs along federal-aid primary highways to have permits.

   
   

6. On March 20, 1990, the Department notified Respondent of the violation and required that the sign be removed.

   
   

7. On March 27, 1990, Respondnet removed the billboard facings containing the message portion of the advertisement for the body shop. The removal of the message portion of the sign effectively removed the remaining structure from the jurisdiction of the Department under Chapter 479, Florida Statutes.

   
   

8. At some time, either during the time period discussed above or shortly after the removal of the billboard facings, Rick Downs decided not to purchase Respondent's property due to some financial difficulties he was experiencing.

9. After Mr. Downs backed out of the agreement to purchase the property, Respondent placed a billboard size advertisement on the structure, advertising the property for sale. Such an on-premise for sale sign does not require a state permit. See Sect. 479.16(3), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Department has the authority to regulate outdoor advertising along State and federally maintained roadways under the provisions of Chapter 479, Florida Statutes. Section 479.07, Florida Statutes, states in pertinent part:

    
    

    1. Except as provided in s. 479.16, a person may not erect, operate, use, 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 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 479.16, Florida Statutes, states in pertinent part:

    
    

    The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter, but are required to comply with the provisions of s. 479.11(4)-(8):

    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 entertainment sold produced, manufactured, or furnished on the premises of the establishment. . .

       (3) Signs posted or displayed on real property by the owner or by the

       authority of the owner, stating that the real property is for sale or rent.

       
       

13. Section 479.01, Florida Statutes, provides in pertinent part:

    
    

    (14) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, . . . advertising structure, . . . designed, intended, or used to advertise or inform, any part of the adverising message or informative contents of which is visible from any place on the main traveled way.

    . . .

    (16) "Sign face" means the part of the sign, including trim and background, which contains the message or informative contents.

    (18) "Sign structure" means all the interrelated parts and material, such as beams, poles, and stringers, which are constructed for the purpose of supporting or displaying a message or informative contents.

    
    

14. As can be seen from the above definition of a sign, a sign structure, such as the monopole in this case, without some form of a message which is not exempt from Chapter 479, Florida Statutes, is not a sign for purposes of the permitting requirements of Chapter 479, Florida Statutes. See also National Advertising Company v. Florida Department of Transportation, 418 So.2d 1142 (Fla. 1st DCA 1982). Moreover, the status of a sign structure as either part of a sign within the Department's permitting jurisdiction or not part of a sign within the Department's permitting jurisdiction depends on the presence of a message on that structure and the contents of that message. Since sign messages can change over a period of time, the status of a sign structure as being part of a sign requiring a permit can also change over time along with the changing messages. Given the fact that whether a sign requires a permit and can be subjected to removal if it does not have such a permit, requires both a sign structure and a certain type of message, Chapter 479, Florida Statutes, cannot be interpreted as permanently fixing the character of a sign structure simply because at some point during the life of that structure a message was placed upon it which caused the message and struacture to fall within the permitting requirements of Sect. 479.07(1), Florida Statutes. 1/ Once the offending message is removed the sign structure is not within the jurisdiction of the Department of Transportation to regulate in an effort to force the owner of the structure to tear down. 2/

    
    

15. Clearly, at the time the Notice of Violation was issued, the sign structure with its body shop sign facings required a state permit. 3/ Since the body shop sign did not have a state permit and could not have obtained such a permit, the body shop sign was subject to removal. See Sect. 479.105, Florida Statutes. However, at the present time, the sign structure with its for sale sign facings does not require a state permit and is not subject to removal under 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 finding that the structure does not presently violate Chapter 479, Florida Statutes, and is not subject to removal.

DONE and ENTERED this 19th day of August, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1991.

ENDNOTES

1/ An important consideration in the analysis of Chapter 479, Florida Statutes, is the fact that this monopole structure, by itself, requires no permit and is simply property of the Respondent. Consideration must be given to taking that property without compensation by forcing its removal because the said property temporarily fell within Chapter 479, Florida Statutes.

2/ Clearly, the statute does not prohibit the Department from seeking appropriate relief in the civil courts if it can establish that Respondent is utilizing his property in a manner contrary to the law. Such relief is simply not cognizable in an administrative forum and Chapter 479, Florida Statutes, does not contain any provisions which grant the Department the authority to force the destruction of private property not currently under its jurisdiction without the intervention of a circuit court.

3/ Aguably, if the sale to Mr. Downs had closed and the property become a part of his body shop business, the sign would not have required a permit because of the exemption for such signs contained in Sect. 479.16(1), Florida Statutes. If this had been these had been the facts, such a case would be a good example of how a change in the circumstances over time surrounding a sign effectively changes the legal status of a sign regarding whether such a sign requires a permit and may be subject to removal if it does not have such a permit.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-2817T

1. The facts contained in paragraphs 1 and 2 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

2. The facts contained in paragraphs 1, 2, 3, 4, 5, 6 and 7 of Respondent's Proposed Findings of Facts are adopted in substance, in so far as material.

COPIES FURNISHED:

Vernon Whittier, Jr. Department of Transpotation 605 Suwanee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Stephen R. Moorhead

700 South Palafox Street Suite 3C

Pensacola, Florida 32501

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, FL 32399-0458

Thorton Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-002817

Orders for Case No: 90-002817