STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1783T

) EMPIRE ADVERTISING INDUSTRIES, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Fort Lauderdale, Florida, on November 4, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Jeffries H. Duval, Esquire

Office of General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32304

For Respondent: Robert Korner, Esquire

4790 Tamiami Trail

Coral Gables, Florida 33134 ISSUE PRESENTED

Respondent's alleged violation of Section 479.07(1) and 479.111(2), Florida Statutes.

FINDINGS OF FACT

1. On August 19, 1976, Petitioner's Outdoor Advertising Inspector inspected Respondent's signs located at 1038 N.W. 36th Street, Miami, Florida. The location is within the city limits of Miami. Northwest 36th Street is also

   U.S. Highway 27. Two signs of the Respondent each 6' by 12' facing east, one above the other, had been erected at the above location. A distance of approximately 135' separated Respondent's sign from the nearest other sign facing the same direction on that side of the highway. (Testimony of Conde, Stipulation, Exhibit 1)

   
   

2. Respondent had applied for a permit for the signs on January 12, 1976, but the application was denied by Petitioner because they did not meet the spacing requirements of Section 479.111, F.S. (Testimony of Conde)

3. Petitioner issued a Notice of alleged violations of Sections 479.07(1) and 479.111(2), Florida Statutes with respect to Respondent's above described signs on August 23, 1976.

   
   

   CONCLUSIONS OF LAW

   
   

4. As to alleged violation of Section 479.07(1), F.S. The stated basis for Respondent's violation of this provision is contained in the report of violation as "permit tag not obtained". The statutory provision in question, although requiring permits to be obtained prior to constructing signs outside of incorporated cities or towns, requires only that an application for a permit be made with regard to signs constructed along federal-aid primary highways within incorporated cities or towns. As held in a prior opinion of this Division, Department of Transportation vs. Empire Advertising Industries, Inc., Case No. 76-160, the signs in question were located within an incorporated city and did not require a permit prior to construction. Since Petitioner in the instant case had made application for a permit, he did all that was necessary under Section 479.07(1) and, accordingly, no violation of that provision has been established.

   
   

5. As to the alleged violation of Section 479.111(2), F.S. Petitioner claims that Respondent violated this provision as stated in the Notice of Violation "Signs permitted on commercial or industrial zoned property only." Section 479.111(2) provides as follows:

   
   

   "479.111 Certain advertising signs permitted.-- 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.

   
   

   Thus,, it can be seen that a sign located in a commercial and industrial zoned or commercial and industrial unzoned area is permitted if it conforms to the requirements of the agreement established in Section 479.02. That agreement between the Governor of the State of Florida and the Federal Highway Administrator was executed on January 27, 1972, and 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. Section 1 of the agreement defines unzoned commercial or industrial areas and commercial or industrial zones.

   Section 2 of the agreement provides that it shall apply to those areas under certain conditions, and Section 3B sets forth criteria for signs in such areas pertinently as follows:

   
   

   "SPACING OF SIGNS:

   3. Federal-aid Primary Highways

   No two structures shall be spaced less than five hundred (500) feet apart on the same

   side of the highway facing the same direction."

   
   

   The competent evidence establishes that Respondent's signs are in violation of the aforesaid spacing provision of the agreement. Although no competent evidence was presented to establish that the signs in question are located in either a commercial or industrial zoned or unzoned area, this cannot operate to

   the prejudice of the Respondent because signs in such areas are the only ones permitted within controlled positions of the Federal-aid primary highway system.

   
   

6. Although the Notice of Violation erroneously stated as a basis thereof that signs were permitted on "commercial or industrial zoned property only", administrative complaints and pleadings are not held to the technical standards of those in judicial proceedings and it is considered that Respondent was fairly apprised of the charge it had to meet. Respondent's only objection was to the fact that the State-Federal Agreement, provisions of which are incorporated in the Right of Way Bureau Operating Procedures of the Department of Transportation in Section 171-001, has never been promulgated as a rule under the Administrative Procedure Act. However, the pertinent restriction is set forth in paragraph 3A(11) of Section 171-001, which in turn is incorporated as a Rule by Rule 14-15.05, Florida Administrative Code. In view of the foregoing, it is concluded that Respondent's advertising signs are not permitted under Chapter 479, F.S.

RECOMMENDATION

1. That Respondent's alleged violation of Section 479.07(1), F.S. be dismissed.

   
   

2. That Respondent's sign located at 1038 N.W. 36th Street, Miami, Florida, be removed under the authority of Section 479.17, Florida Statutes, as not permitted under Section 479.111(2), F.S.

DONE and ENTERED this 23rd day of November, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Mr. O.E. Black, Administrator Outdoor Advertising Section Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32304

Jeffries H. Duval, Esquire Office of General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32304

Robert Korner, Esquire 4790 Tamiami Trail

Coral Gables, Florida 33134

Docket for Case No: 76-001783

Orders for Case No: 76-001783