STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 76-156T

)

HULME ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to proper notice this cause came on for final hearing before the undersigned Hearing Officer on May 20, 1976. Frank H. King, Esquire, appeared on behalf of Petitioner, and William B. Rowland, Esquire, appeared on behalf of Respondent.

Respondent is charged with violation of Section 479.02, Florida Statutes, and Subsections 339.25(1) and 338.03(2), Florida Statutes. At the outset of the final hearing counsel for Petitioner stated for the record that the Petitioner would withdraw and not present any evidence with relation to the charges involving Subsections 339.25(1) and 338.03(2), Florida Statutes. Therefore, the final hearing in this Recommended Order is concerned solely with the charge involving Section 479.02, Florida Statutes, wherein Petitioner alleges Respondent violated the foregoing by raising the face of the subject sign.

Having considered the testimony and evidence presented in this cause the Hearing Officer enters the following:

FINDINGS OF FACT

1. Respondent maintains an outdoor advertising structure on the I-95 southbound lane facing north, 13.94 miles north of the Brevard-Volusia County line. Sometime between August 6, 1975 and January 12, 1976, the face of this advertising structure was raised six to eight feet in height. This was done by extensions being placed on the original poles upon which the structure sits. The structure retained its same face size and lighting. The face of this structure was raised at the request of Respondent's client in order to retain that client's business.

   
   

2. No evidence was presented to show when this sign was originally erected.

   
   

3. No evidence was presented by Petitioner, Department of Transportation, which would establish that the subject sign is or is not located at a "commercial or industrial zone" or an "unzoned commercial or industrial area" as those terms are defined in Section 479.01, Florida Statutes. The subject sign is located approximately 15 feet outside the right-of-way of I-95.

   CONCLUSIONS OF LAW

   
   

4. Counsel for both Petitioner and Respondent, at the close of the final hearing herein, waived their right to oral argument on the facts and law and requested time in which to submit to the Hearing Officer proposed Recommended Orders and Memoranda of Law in support of those Recommended Orders. Counsel were given such a time period, but have not filed any proposed Recommended Orders or Memoranda of Law. Without benefit of those Memoranda it is not clear to the Hearing Officer on what legal theory the Petitioner, Department of Transportation, bases it charge against Respondent. It does appear to the Hearing Officer that were an outdoor advertising structure a "non-conforming" sign, as that term is used in Policy and Procedure Memorandum 90-6, United States Department of Transportation, Federal Highway Administration, it must probably remain substantially the same as it was when it became such a non- conforming sign and that the raising of such a sign could constitute a change in its existing use subjecting it to removal. However, it is not necessary to determine whether the raising of the face of the subject outdoor advertising structure is normal maintenance or a change in its existing use, to dispose of the matter presented in this cause. Subsection 479.111(2), Florida Statutes, states that

"Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement

established by s. 479.02 [Florida Statutes]"

shall be permitted within controlled portions of the interstate and federal aid primary systems. As noted in the findings of fact above, no evidence has been presented in this cause to show that the subject sign is or is not within such a commercial and industrial zone or commercial and industrial unzoned area. If the subject sign is within such am area it is not a "non-conforming" sign, and, presumably, its face could be raised legally. Therefore, absent a showing that it is not in such an area, it may not be legally concluded that the raising of the face of the outdoor advertising structure is in violation of the law.

RECOMMENDED ORDER

Therefore, it is hereby RECOMMENDED that the Respondent herein should prevail and the charges be hereinafter forever withdrawn.

ENTERED this 3rd day of September, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1976.

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

William D. Rowland, Esquire Post Office Box 539

Winter Park, Florida

Docket for Case No: 76-000156

Orders for Case No: 76-000156