STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5221T

)

FIRST COAST OUTDOOR )

ADVERTISING, INC., )

)

Respondent. )

)

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7396T

)

MOTEL DELORES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matters were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 7, 1992, in Deland, Florida.

APPEARANCES

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

605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458

For Respondent Gerald S. Livingston, Esquire Case No. 91-5221T: Suite 1150

200 East Robinson Street Orlando, FL 32801

For Respondent Jerrald D. Schatz, pro se

Case No. 91-7396T: 5992 North Oceanside Boulevard

Hammock, FL 32137-2601 STATEMENT OF THE ISSUE

The issues are whether respondents' signs are in violation of the law as alleged in the notices to show cause issued on April 6, 1990, and November 1, 1991, and whether First Coast Outdoor Advertising, Inc.'s application for a sign permit should be approved.

PRELIMINARY STATEMENT

These proceedings began on April 6, 1990, when petitioner, Department of Transportation (DOT), issued two notices to show cause alleging that road signs owned by respondents, First Coast Outdoor Advertising, Inc. and Motel Delores, were in violation of Chapter 479, Florida Statutes, and should be removed. Just prior to that date, DOT had also denied an application for a sign permit filed on behalf of First Coast Outdoor Advertising, Inc. On April 19 and 23, 1990, respectively, respondents requested a formal hearing to contest the agency's action. The matter involving First Coast Outdoor Advertising, Inc. was eventually referred by petitioner to the Division of Administrative Hearings (DOAH) on August 20, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. That request was assigned Case No. 91-5221T. The notice to show cause issued against Motel Delores was later rescinded by DOT on October 17, 1991, and a new notice to show cause was issued on November 1, 1991. Respondent's second request for hearing was forwarded by DOT to DOAH on November 15, 1991, and was assigned Case No. 91-7396T. Because the two cases are interrelated, they were consolidated for hearing purposes on November 26, 1991.

By notice of hearing dated October 3, 1991, a final hearing in Case No. 91- 5221T was scheduled on October 21, 1991. At petitioner's request, the matter was rescheduled to November 26, 1991, and thereafter both cases were scheduled on February 7, 1992, in Deland, Florida.

At final hearing, petitioner presented the testimony of Peter W. Wright, DOT outdoor advertising district administrator, and William Terry, DOT outdoor advertising inspector. Also, it offered petitioner's exhibits 1 - 6. All exhibits were received in evidence. Respondent First Coast Outdoor Advertising, Inc. presented the testimony of Jerrald D. Schatz. Also, it offered respondent's exhibits 1 - 6. All exhibits were received in evidence.

Respondent Motel Delores was represented by Jerrald D. Schatz, a co-owner, who testified on its behalf.

The transcript of hearing was filed on February 18, 1992. At the request of the parties, the time for filing proposed findings of fact and conclusions of law was extended to and including March 18, 1992. However, none were filed.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Department of Transportation (DOT), is the state agency charged with the responsibility of administering and enforcing the Federal Highway Beautification Act, as amended, which pertains to lighting, design and spacing of signs on the interstate, federal and primary highway systems. Respondent, First Coast Outdoor Advertising, Inc. (First Coast), is an outdoor advertising firm located in St. Augustine Beach, Florida, and is the owner of a sign erected on State Road A1A in Flagler County, Florida. Respondent, Motel Delores, is a motel located at 5992 Oceanside Boulevard (State Road A1A) in Flagler County and has a sign erected near its place of business. Both signs are located on the same side of the highway and are subject to DOT's regulatory jurisdiction.

   
   

2. The underpinnings of this controversy began in 1966 when Motel Delores decided it would erect a sign with a message reading "Delores Motel & Restaurant". The actual location of the sign is 385 feet south of the

   intersection of Malacompra Road and State Road A1A, or 10.2 miles north of the intersection of State Roads 100 and A1A, in Flagler County, Florida. At that time, the property on which the sign was erected was owned by Malcolm Johnson. According to Jerrald D. Schatz, who is one of the motel owners, Motel Delores was given permission by Johnson for the sign to be erected on Johnson's property. In 1970, ITT Development Corporation (ITT) purchased Johnson's land. There is no indication in the record that ITT initially lodged any objections to Motel Delores continuing to have its sign located on ITT's property.

   
   

3. The date on which DOT began regulating outdoor advertising signs is not of record. However, Motel Delores first learned of the need to obtain a sign permit in early 1977 when a DOT representative advised it that a permit was necessary. Accordingly, respondent made application with DOT for a permit on March 9, 1977, and was issued tag number 5697-02 on March 16, 1977. Thereafter, the tagged sign remained at the same location until March 1990.

   
   

4. In 1984, ITT and DOT became embroiled in a civil action over ownership of land on and near State Road A1A where the two signs are now located. In 1986, the lawsuit was settled when DOT and ITT agreed to exchange land in the immediate area. As a result of that settlement, the land on which Motel Delores' sign was located was deeded from ITT to DOT and now constitutes right- of-way on State Road A1A. Without DOT's written permission, the placement of a sign on state right-of-way is prohibited.

   
   

5. In March 1990, Motel Delores' sign and tag were stolen by unknown individuals. Within a few days, Schatz began erecting a new sign a few feet closer to A1A. By chance, a DOT sign inspector, William Terry, happened to be traveling on A1A and observed the new sign. After a preliminary investigation was conducted, including contact by DOT with ITT, Terry concluded that the sign was within fifteen feet of DOT right-of-way on a federal primary highway and the sign owner did not have ITT's written permission to have the sign at that location. The inspector was unaware of the fact that DOT and ITT had exchanged land some four years earlier and was under the impression that the land on which the sign was located belonged to ITT. Accordingly, on March 29, 1990, Terry posted a cease work order on the sign and recommended that a notice of violation be issued. The recommendation was accepted by the district administrator of outdoor advertising and a notice to show cause was issued on April 6, 1990. On April 23, 1990, Schatz filed a request for hearing with the DOT district office.

   
   

6. In late February 1990 First Coast began erecting an outdoor advertising sign approximately 523 feet north of where the Motel Delores sign was located. In conjunction with this activity, on March 14, 1990, First Coast filed an application with DOT for a sign permit. However, A1A is designated as a part of the federal-aid primary highway system and state law prohibits two permitted signs from being located within 1,000 feet of one another on such a road. Because the DOT "inventory book" for permitted signs carried the tag number for the sign owned by Motel Delores, which was 523 feet south of First Coast's sign, the application was returned to First Coast on March 21, 1990, with a notation by the district administrator that it was "Dis-Approved" (sic). A short time later, Terry posted a cease work order on First Coast's uncompleted sign, and a notice to show cause was issued on April 6, 1990, on the ground the sign did not meet spacing requirements. However, because at that time Motel Delores' sign was on DOT right-of-way without DOT's permission, there was no lawful, permitted sign on the same side of the road within 1,000 feet of First Coast's sign and thus the notice was improvidently issued. Indeed, a DOT representative acknowledged at hearing that Motel Delores' sign was "illegal" at the time the

   notice to show cause was issued against First Coast. In view of this, First Coast's application for a sign permit should have been approved.

   
   

7. On April 19, 1990, First Coast requested a hearing to contest DOT's preliminary decision. Among other things, First Coast contended that the Motel Delores sign was illegally erected and thus its sign met all spacing requirements. For reasons not of record, DOT did not forward this and Motel Delores' first request for hearing to the Division of Administrative Hearings until more than a year later. During this period of time, both respondents completed construction of their new signs and have continued to use them pending the outcome of these proceedings. Even so, DOT agreed at hearing that respondents should not be charged with violating the cease work orders posted on the two signs.

   
   

8. On October 17, 1991, DOT advised Schatz by letter that it was "rescinding all violations issued under the (April 6, 1990) notice" because the notice had incorrectly identified the location of the sign as 385 feet north of Malacompra Road when in fact the actual location was 385 feet south of Malacompra Road. Schatz's happiness was short-lived, however, because DOT then issued another notice to show cause on November 1, 1991, alleging that the sign did not have a valid permit tag and was located on DOT's right-of-way. Motel Delores thereafter requested a hearing on November 8, 1991.

   
   

9. On November 20, 1991, Motel Delores filed with DOT an outdoor advertising permit affidavit form in which it represented that its sign tag had been stolen and a replacement tag was necessary. The request was approved by DOT on January 14, 1992, and replacement tag number BF 209-25 was issued.

   
   

10. On February 1, 1992, or less than a week prior to final hearing, DOT and Motel Delores executed a five year lease agreement whereby DOT agreed that the motel could keep its sign on DOT's property for $200 per year. According to Schatz, he had requested such a lease from DOT in late 1990 and it took more than a year for DOT to formalize the agreement.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

    
    

12. As the party seeking to remove respondents' signs, petitioner is obligated to prove by the preponderance of the evidence that the signs are illegally erected.

    
    

13. Although DOT has an outstanding notice to show cause against Motel Delores, it effectively abandoned that claim at hearing and essentially took the position that the sign is now legal since the sign owner and the agency have entered into a lease agreement authorizing the erection of a sign on DOT's property. As to First Coast's sign, DOT takes the position that, because First Coast's sign is within 1,000 feet of the sign owned by Motel Delores, the sign fails to meet spacing requirements and thus should be removed. This position is predicated upon Subsection 479.07(9)(a)2., Florida Statutes (1991) which provides that a sign permit shall not be granted for any sign unless that sign is:

    One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

    
    

    But in order for this statute to serve as an impediment to a permit, another legal, permitted sign would have to have been within 1,000 feet of First Coast's sign on the same side of the highway in April 1990. Although Motel Delores then had a sign and tag permit less than 1,000 feet away, the sign was not legal since the sign was on DOT's right-of-way and the sign owner did not have DOT's written permission. This being so, the provisions of subsection 479.07(9)(a)2. would not bar the issuance of a permit. Therefore, it is concluded that First Coast's sign was lawfully erected, and its application for a sign permit should be approved. In addition, the notice to show cause should be dismissed, with prejudice.

    
    

14. Although the sign of Motel Delores was technically illegal during the period from 1977 until February 1992 because of a lack of written permission from the property owner, it now conforms to all statutory requirements. Given the fact that the sign owner has maintained the sign in essentially the same location for more than 25 years, has paid for all necessary permits since being told to do so by DOT in 1977, and now has a lease with DOT, it would be patently unfair and inequitable to force the owner to remove its sign on the theory that it lies within 1,000 feet of another permitted sign. In addition, the grounds cited by DOT in the notice to show cause are that Motel Delores neither has a permit nor the landowner's permission to erect a sign. Both infirmities are now cured. Therefore, it is concluded that the notice to show cause issued against Motel Delores should be dismissed, with prejudice.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the notices to show cause issued against respondents on

April 6, 1990, and November 1, 1991, be dismissed with prejudice. It is further

recommended that a sign permit be issued to First Coast Outdoor Advertising, Inc. for its sign erected on State Road A1A in Flagler County.

DONE and ORDERED this 30 day of March, 1992, at Tallahassee, Florida.

COPIES FURNISHED:

DONALD R. ALEXANDER

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 30 day of March, 1992.

Vernon L. Whittier, Jr., Esquire 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458

Gerald S. Livingston, Esquire Suite 1150

200 East Robinson Street Orlando, FL 32801

Jerrald D. Schatz

5992 North Oceanside Boulevard Hammock, FL 32137-2601

Ben G. Watts, Secretary Department of Transportation

ATTN: Eleanor F. Turner, Agency Clerk 605 Suwannee Street, MS 58

Tallahassee, FL 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: 91-005221

Orders for Case No: 91-005221