STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4956T

)

MARCENT FLORIDA, INC., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on November 19, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Jay O. Barber

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Thomas M. Ramsberger

Akerman, Senterfitt & Eidson Firstate Tower

255 Orange Avenue Post Office Box 231

Orlando, Florida 32802-0231 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent's sign located adjacent to I-4, 200 feet west of the centerline of State Road 482, in Orange County, Florida, violates Chapter 479, Florida Statutes, as alleged in the notice dated May 14, 1991; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on May 14, 1991, when the Department of Transportation (Department) issued a notice to show cause that identified a sign and alleged that it was being maintained in violation of Florida law. More specifically, the notice claimed that the sign violated Section 479.07(1), Florida Statutes, since it did not have a state sign permit; violated Section 479.07(9)(a)1, Florida Statutes, since it was only 1405 feet from another permitted sign (the regulation specifies 1500 feet as the minimum distance between permitted signs); and violated Section 479.02(1), Florida Statutes, since it was within 500 feet

of a restricted interchange. The Respondent filed a request for an administrative hearing with the Department on June 14, 1991. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on August 5, 1991.

At the hearing, the Department presented the testimony of Michael Dollery, the outdoor advertising inspector for the Department for Orange, Osceola, and Brevard counties. The Department's exhibits numbered 1 through 3 were admitted into evidence. Shneur Elgar, agent for Marcent Florida, Inc., testified for the Respondent, and its exhibits numbered 1 through 4 were admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on December 18, 1991. After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with the responsibility under law of regulating and controlling outdoor advertising signs such as the one at issue in these proceedings.

   
   

2. The Respondent, Marcent Florida, Inc., maintains or controls an outdoor advertising sign located at the intersection of Sandlake Road (State Road 482) and Interstate 4. The sign is located on property belonging to Grenada N.V. but Respondent has permission to maintain the sign at the location.

   
   

3. The sign is approximately 14 feet by 48 feet, is 30 feet above ground, and, according to Respondent, "looks similar to a standard roadside billboard."

   
   

4. At all times material to this case, the above-described sign did not have a valid DOT sign permit.

   
   

5. At all times material to this case, the above-described sign contained language advertising lakefront, lakeview, homesites at North Bay. Additionally, the sign advertised a development known as Park Terrace. Both of the referenced developments are off-site and not immediately adjacent to the subject property.

   
   

6. At all times material to this case, the above-referenced sign was located two hundred feet west of the center line of Sand Lake Road. Further, the sign was fifteen feet back from the right-of-way.

   
   

7. The subject sign was erected in approximately 1985 or 1986 and is within 1500 feet of a DOT permitted sign.

   
   

8. After Respondent received the notice of alleged violations, it made efforts to alter the language of the sign so that it would only advertise the availability of the property on which it is placed. To the date of the hearing, such changes had not been completed.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

10. Section 479.02(1), Florida Statutes, provides: It shall be the duty of the department to:

    
    

    1. Administer and enforce the provisions of this chapter and the agreement between the state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and federal regulations in effect as of the effective date of this act;

       
       

11. Section 479.07, Florida Statutes, provides, in pertinent 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.

       * * *

       (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.

          
          

12. Section 479.16, Florida Statutes, provides, 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 and which meet the minimum requirements of the Southern Building Code. If a sign located on the premises of an establishment consists principally of brand

       name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection.

       * * *

       (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. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.

       
       

13. The Department bears the burden of proof to establish the violations alleged in the notice to show cause. The record in this case establishes that the Respondent maintains a sign for which a valid permit has not been obtained. Additionally, the sign is located improperly as it is within 500 feet of the interchange at Sand Lake Road and I-4 and is within 1500 feet of another DOT permitted sign. While Respondent has made efforts to bring the sign within one of the exempted provisions of the statute, such efforts did not predate the violations established in this case and do not alter the facts found herein. The Respondent has not established that the sign was, or should be now deemed, exempt.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Transportation enter a final order finding the subject sign to be in violation of Chapter 479 as set forth above.

DONE and ENTERED this 21st day of January, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of

Administrative Hearings this 21st day of January, 1992.

APPENDIX TO RECOMMENDED ORDER

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 4 are accepted.

   
   

2. Paragraph 5 is rejected as irrelevant or contrary to the weight of the evidence.

   
   

3. Paragraphs 6 and 7 are accepted.

   
   

4. Paragraph 8 is rejected as irrelevant or argument.

   
   

5. Paragraphs 9 and 10 are accepted.

   
   

6. Paragraph 11 is accepted.

   
   

7. Paragraph 12 is rejected as irrelevant or argument.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 through 9 are rejected as irrelevant, argument or fact not supported by the weight of the evidence.

COPIES FURNISHED:

Jay O. Barber

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thomas M. Ramsberger Akerman, Senterfitt & Eidson Firstate Tower

255 Orange Avenue Post Office Box 231

Orlando, Florida 32802-0231

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

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: 91-004956

Orders for Case No: 91-004956