STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-001T

)

LYMAN WALKER, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a public hearing was held at 2:00 P.M., March 1, 1977, in Room 104, Collins Building, Tallahassee, Florida before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32304

For Respondent: Ben H. Ervin, Sr., Esquire

850 South Waukeenah Street Monticello, Florida 32344

ISSUE

Whether the Respondent violated Chapter 479, Florida Statutes, by failure to obtain a state permit and whether Respondent is in violation of federal and state laws, rules and regulations applicable to outdoor advertising signs concerning setback and spacing restrictions.

INTRODUCTION

Petitioner contends: that the subject five signs owned by Respondent are in violation of the state and federal laws inasmuch as no permits were applied for or obtained for any of the five signs and that each of the five signs violate the setback requirements of Section 479.11(1) and that four of the five signs violate Section 479.02 spacing requirements, that one of the signs violates the setback requirements of Section 479.02 inasmuch as said sign is too close to the interchange of Interstate 10 and State Road 257.

Respondent contends: that he has met all the requirements of the farm use exemption of Section 479.16(2).

FINDINGS OF FACT

1. A notice of alleged violation of Chapter 479 and Section 335.13 and Section 339.301, Florida Statutes, and notice to show cause was furnished Petitioner by certified mail dated the 16th day of December, 1976, and stamped at the Lamont, Florida Post Office December 18, 1976.

   
   

2. The following signs are the subject of this hearing:

   
   

   1. A sign with copy reading "Pecans 3-lbs.

      $1.50" with an additional sign attached underneath reading "53.9" located at 1 and 6/10 miles west of Madison County line on Highway Interstate 10.

   2. A sign with copy reading "Pecans Fresh Shell $1.99) located 1 and 9/10 miles west of Madison County line on Highway Interstate 10.

   3. A sign with copy reading "Pecans 3-lbs.

      $1.50" located 2 miles west of Madison County line on Highway Interstate 10.

   4. A sign with copy reading "Exit Now Pecans Fresh Shell $1.99" located 2.05 miles west of Madison County line on Highway Interstate 10.

   5. A sign with copy reading "Exit Now Pecans 3-lbs. $1.50" located 2.2 miles west of Madison County line on Highway Interstate 10.

      
      

3. No permits were secured for any of the signs which were erected subsequent to December, 1976, and visible from Highway Interstate 10 on the north side thereof. Each sign is outside an urban area.

   
   

4. The distance and space between signs numbers 2, 3, 4 and 5 each is less than one thousand feet. Sign number 1 has the number 53.9 underneath the message advertising pecans. This number relates to the price of gasoline sold at Respondent's store wherein he sells gasoline and pecans among other things.

   
   

5. Sign number 1 is approximately 15 feet from the fence line at the north boundary of 1-10; sign number 2 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 3 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 4 is located approximately 15 feet from the right-of-way line, the fence, on the north side of 1-10; sign number 5 is approximately 2 feet from the fence line on the north side of 1-10. Sign number 5 is within the offramp section of the interchange of 1-10 and State Road 257.

   
   

6. The subject signs stand fully visible approximately 15 feet from the fence which is the north boundary line of Interstate 10 a federal aid primary highway except sign number 5 which is less than 15 feet from Interstate 10. They are placed in an old grove in which there are less than 20 old pecan trees which do not produce the product advertised for sale.

   
   

7. The subject signs advertise pecans that are sold at the business of Respondent which is a distance of at least 3/4 of a mile from the nearest sign.

   CONCLUSIONS OF LAW

   
   

8. Section 479.07(1)(2)(4)(6) Industrial device permits; fees; tags.- prohibits the erection of signs along federal aid highways outside any incorporated city or town without securing a permit from the Petitioner, State of Florida Department of Transportation. No permit has been applied for or secured for subject signs by the Respondent. The Respondent was denied permission to erect the signs by Mr. R. N. Lester, an outdoor advertising inspector for the Petitioner Florida Department of Transportation. Section 479.11(1) and (2) Certain outdoor advertising prohibited.- prohibits the erection of signs "outside of urban areas if such signs are erected "with the purpose of its message being read from the main-traveled ways of such system." Section 479.02 Enforcement of provisions by department.-, Florida Statutes, and the agreement between the United States Department of Transportation and the State of Florida dated January 27, 1972, ratified by the legislature by Senate concurrent Resolution No. 657 and filed in the office off the Secretary of State March 2, 1972, in zoned and unzoned commercial areas, require that signs along rural areas be spaced no closer than 1000 feet from each other. Signs numbers 2 through 5 violate this section of the Florida Statutes and sign 1 is spaced within 500 feet of the interchange of an Interstate highway contrary to the Governor's Agreement, Section III, State Control B3(2)b.

   
   

9. Respondent has willfully violated Chapter 449, Section 335.13 at the Highway Beautification Act, Title 23, Section 131, United States Code.

RECOMMENDATION

Take such action as the law permits including but not limited to the removal of subject signs.

DONE and ORDERED this 30th day of March, 1977, at Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1977.

COPIES FURNISHED:

Philip S. Bennett, Esquire Ben H. Ervin, Esquire George L. Waas, Esquire 850 South Waukeenah Street Department of Transportation Monticello, Florida 32344 Haydon Burns Building

Tallahassee, Florida 32304

Mr. O. E. Black, Administrator Outdoor Advertising

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. J. E. Jordan

District Sign Coordinator, DOT Post Office Box 607

Chipley, Florida 32428

================================================================= AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

IN RE: FLORIDA DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 77-001T

LYMAN WALKER, III,

Respondent.

/

FINAL ORDER

The record and evidence in this case having been fully and completely reviewed along with the Recommended Order of the Hearing Officer herein and the exceptions filed, and finding that said Recommended Order is correct in both fact and law supported by competent and substantial evidence,

IT IS ORDERED that the Recommended Order of Hearing Officer is adopted in its entirety and becomes the Order of this Agency on this 19th day of April, 1977

TOM WEBB, JR.

SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32304

COPIES FURNISHED:

Mr. O. E. Black, Administrator Jon D. Caminez, Esquire Outdoor Advertising 1030 E. Lafayette Street Department of Transportation Tallahassee, Florida 32301 Haydon Burns Bldg.

Tallahassee, Florida. 3230 . Philip S. Bennett, Esquire

Florida Department of

Mr. J. E. Jordan Transportation

District Sign Coordinator Haydon Burns Building Department of Transportation Tallahassee, Florida 3230

P. O. Box 607 Chipley, Florida 3228

Delphene C. Strickland Hearing Officer

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

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JULY TERM, A. D. 1977.

LYMAN WALKER, III, NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING PETITION AND

Petitioner, DISPOSITION THEREOF IF FILED.

STATE OF FLORIDA, DEPARTMENT CASE NO. GG-66

OF TRANSPORTATION, DOAH CASE NO 77-001T

Respondent.

/

Opinion filed November 18, 1977.

The petition for Review of an order of the Department of Transportation. Don D. Caminez and John D. Carlson, Tallahassee, for Petitioner.

Allen E. DeSerio and H. Reynolds Sampson, Tallahassee, for Respondent.

SMITH, J.

A signowner petitions for review of a Department of Transportation order adopting the proposed order of a hearing officer and finding that petitioner's signs adjacent to an interstate highway are in violation of section 479.11(1) and (2), Florida Statutes (1975). The signs were ordered removed.

Petitioner contended before the hearing officer and here that his signs, which advertise the sale of pecans at a stand on a nearby intersecting highway, were excepted from the proscription of Section 479.11(1) add (2) by Section 479.16(2), which permits signs

constructed, erected, operated,

used or maintained on any farm by the owner or lessee of such farm and relating

solely to farm produce, merchandise, service or entertainment sold, produced, manufactured or furnished on such farm.

The Department urges concerning farm produce that the exception restricts permissible on-site advertising to produce of the farm. The statute is not so limited. Given an active farm, the exception permits on-site advertising by the farm owner or lessee of farm produce sold there but obtained elsewhere.

The evidence does not qualify petitioner for the farm exemption. Although the transcript contains evidence the petitioner's signs stood near an old pecan grove of seventeen trees, there was no evidence that petitioner owned or leased the grove, or that the grove was actively farmed, or that the advertised sale of pecans took place on the farm. The burden of proving entitlement to the statutory exemption was on petitioner and he did not prove important elements of the exemption. The Department's final order should have so stated, in response to the exception to the recommended order filed by petitioner, Stuckey's of Eastman, Georgia v. Dep't of Transp., 340 So.2d 119 (Fla. 1st DCA 1976), but that omission in this case did not impair the fairness of the proceedings or the correctness of the action. Section 120.68(7), Florida Statutes (Supp. 1976).

No other error appears. The prayer of the petition for review is DENIED. MILLS, Acting Chief Judge, and MELVIN, J., CONCUR.

Docket for Case No: 77-000001

Orders for Case No: 77-000001