STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1473T

)

HENDERSON SIGN COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above-styled cause in the Conference Room of the Department of Transportation, Chipley, Florida, on September 16, 1976.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Office of Legal Operations Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Richard Wayne Grant, Esquire

Attorney at Law

209 North Jefferson Street Marianna, Florida 32446

ISSUE

Whether a sign owned by Henderson Sign Company located approximately one- tenth of a mile east of the junction of State Road 73 and U.S. 90 containing as old copy "Key Drug Center" and new copy "Best Western Motor Inn" is in violation of the permit (Section 479.07(1) and (6), F.S.), spacing (Sections 479.02 and 479.111(2), F.S.), and setback (Section 479.11(1),F.S.) requirements.

FINDINGS OF FACT

1. The respondent owns and maintains an outdoor advertising structure adjacent to U.S. Highway 90 approximately one-tenth mile east of its intersection with State Road No. 73 within the corporate limits of the City of Marianna. This structure is a double billboard, with one advertisement for "Key Drug Center," erected in August of 1974, and the other for "Best Western Motor Inn" erected in April of 1976. It is located approximately five (5) feet from the edge of the sidewalk approximately 10 to 15 feet from the edge of the north side of Highway 90.

   
   

2. At the time of the Respondent's erection of the first sign, he obtained a permit from the City of Marianna but not from Petitioner Department of

   Transportation. Before erection of the second sign, in 1976, the Respondent submitted an application to the Petitioner, but the application was denied.

   
   

3. There is no other outdoor advertising structure bearing a properly issued permit from the Petitioner in existence within 500 feet from the Respondent's advertising structure although there is a non-permitted sign within

   120 feet facing in the same direction.

   
   

4. Petitioner has entered into evidence a copy of the zoning ordinance of Marianna, Florida. Petitioner contends: that the signs of Respondent violate the set-back, space and permit section of Chapter 479, Florida Statutes, and of The Governor's Agreement of 1972.

   
   

5. Respondent contends: that the Petitioner has not proved where the edge of the right-of-way of Federal Highway 90 is located, that the other sign, if any, is not a lawful sign, having no permit, so the spacing violation, if any, is not enforceable and that the requirement of Chapter 479, Florida Statutes, does not apply to incorporated cities.

   
   

   CONCLUSIONS OF LAW

6. Section 479.16, Florida Statutes, Certain advertisements.- provides: "The following advertisements, advertising

   signs and the advertising structures, or parts

   thereof, upon which they are posted or displayed, are excepted from all the provisions of this chapter except those contained in s. 479.11(3)-(5).

   (12) Advertisements, advertising signs and advertising structures within the corporate limits of cities or towns, adjacent to highways other than interstate and

   federal-aid primary systems;"

   
   

7. Section 479.11(3)(4)(5), Certain outdoor advertising prohibited.- provides:

   
   

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

   "(3) Which displays intermittent lights not embodied in an outdoor advertising sign, or any rotating or flashing light within 100 feet of the state-owned right-of-way.

   1. Which uses the word "stop" or "danger," or presents or implies the need or requirement of stopping or the existence of danger, or which is a copy or imitation of official signs;

   2. Which is placed on the inside of a curve or in any manner that may prevent persons using the highway from obtaining an unobstructed view of approaching vehicles."

      
      

8. Subject sign is on a federal-aid primary system to-wit Highway 90, and, therefore, is not within the exception of Section 479.16(12) and is therefore subject to Section 479.11(1).

9. Section 479.111(2) Certain advertising signs permitted.- provides:

   
   

   "Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:

   (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

10. Section 479.02 Enforcement of provisions by department.- "It shall be the function 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; and

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

    
    

11. Subject sign is on a federal-aid primary highway and the Petitioner is required to enforce the agreements made under the foregoing statute.

    
    

12. A copy of the agreement of January 27, 1972 between the Governor of the State of Florida, Reubin O'D. Askew, and the Federal Highway Administrator which was drawn "for the purposes of carrying out national policy relative to control of outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways and the Federal-Aid Primary System, as authorized by Chapter 479, Florida Statutes, and Title 23, Section 131, United States Code." Said agreement was ratified by the Florida Legislature by Senate Concurrent Resolution No. 657 and filed in the Office of the Secretary of State on March 2, 1972. A copy is attached hereto and made a part hereof together with a copy of Senate Concurrent Resolution No. 657.

    
    

13. The City of Marianna, Florida has not shown that it has complied with The Governor's Agreement, Section III, A:

"The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria:

A. In zoned commercial and industrial areas, the State may notify the Administrator as notice of effective control that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply."

or that it has otherwise complied with the requirements of the said agreement.

RECOMMENDATION

Remove subject signs for violation of the 660 foot setback requirements of a federal aid highway, Section 479.11(1), and the spacing requirements of the Governor's Agreement of January 27, 1972. The zoning ordinance of Marianna, Florida does not show that there is effective control of outdoor advertising by the City of Marianna.

DONE and ORDERED this 13th 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 Office of Legal Operations Department of Transportation

Room 562 Haydon Burns Building Tallahassee, Florida 32304

Richard Wayne Grant, Esquire

209 North Jefferson Street Marianna, Florida 32446

Mr. O. E. Black, Administrator Outdoor Advertising

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Henderson Sign Service Post Office Box 887 Marianna, Florida

Mr. J. E. Jordan

District Sign Coordinator Department of Transportation Post Office Box 607

Chipley, Florida 32428

Docket for Case No: 76-001473

Orders for Case No: 76-001473