STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-705T

)

ARMSTRONG SHELL SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above styled cause was heard before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration, in the District Office Conference Room, Department of Transportation, 222 South Marion Street, Lake City, Florida, beginning at 11:12 a.m.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: No appearance for Respondent

ISSUE

Whether Respondent is in violation of the state and federal laws, rules and regulations by enlarging, lighting and changing copy on a privileged sign without obtaining a permit for a sign less than 660 feet from the nearest edge of an interstate highway.

FINDINGS OF FACT

1. A formal notice of violation was given Mr. R. Armstrong on October 27, 1975, notifying him that he was in violation of Chapter 479 and Section 335.13 and Section 339.301, Florida Statutes, as well as Chapter 1, Title 23, Subparagraph G, U.S.C., inasmuch as no application for a sign permit was made and the Respondent changed, enlarged, and lighted a sign formerly owned by the Callahan Chamber of Commerce. The sign is nearer than 660 feet of the nearest edge of the right-of-way of Interstate 95, a Federal Aid Highway. The sign was first lighted on August 27, 1975 and continues to be lighted.

   
   

2. A sign in the approximate location had been allowed to stand as a privileged sign. Copy thereon read: "Next Exit, U.S. 301 North, Callahan Chamber of Commerce." This sign was changed by the Respondent from a 16 X 62 foot sign to a 20 X 62 foot sign. Lights were added and the power turned on August 27, 1975 according to the records of the Florida Light and Power Company.

   The sign had been transferred to the Respondent and copy changed to read: "Shell Gas."

   
   

3. The sign is located on State Road 8 (I-95) 12.65 miles of North Dunn Avenue. Said sign has no permit and no permit was applied for, and it is in violation of the setback requirements of Section 479.11, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

4. Section 479.02 Enforcement of provisions by department, provides: "It shall be the function and duty of the

   department to:

   1. Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the governor in accordance with title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code;

   2. Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial area;

   3. Determine unzoned commercial and industrial areas;

   4. Regulate signs relating to food, lodging, camping, vehicle service, and attractions, subject to current federal regulations."

      
      

5. Subject sign violates this statute inasmuch as it violates the setback requirements of the Governor's Agreement of January 27, 1972, which was adopted under Subsection 1 above and ratified by the State Legislature.

   
   

6. Section 479.07 Individual device permits; fees; tags, provides as follows:

   
   

   "(1) Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without firt obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use or maintain, or cause or permit to be constructed, erected, operated, used or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department.

   A permanent permit tag of the kind hereinafter provided shall be issued by the department

   without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s. 479.04."

   
   

7. Petitioner is in violation of Subsection (1) above inasmuch as no application was made to erect subject sign and no permit was granted.

   
   

8. Section 479.11 Certain outdoor advertising prohibited, provides as follows:

   
   

   "No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   1. Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111, or within 15 feet of the outside boundary of any other federal or state highway or within 100 feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, or railroad intersection outside the limits of any incorporated city or town.

   2. Beyond 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary systems outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system, unless it is of a class or type permitted in subsection 479.111(1) or subsection 479.16(1) or (3)."

      
      

9. Subject sign violates setback requirements of the above subsections.

RECOMMENDATION

Remove subject sign if said sign has not been removed by the owner within ten (10) days after the entry of the final order herein.

DONE and ORDERED this 5th day of January, 1977 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. R. Armstrong Shell Service Post Office Box 2

Yulee, Florida 32097

Mr. Frank Whitesell Post Office Box 1089

Lake City, Florida 32055

Mr. O. E. Black, Administrator Outdoor Advertising

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 76-000705

Orders for Case No: 76-000705