STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-626T

) LAPOINTE OUTDOOR ADVERTISING, )

)

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 at 1317 Northeast Fourth Avenue, Fort Lauderdale, Florida, on the 20th of September, 1977, commencing at 1:40 p.m.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Robert D. Korner, Esquire

4790 Tamiami Trail, Southwest 8th Street Coral Gables, Florida 33134

FINDINGS OF FACT

1. Respondent is the owner of an outdoor advertising sign located 1200 feet north of Lipton Boulevard, West Palm Beach County, Florida, on Interstate 95.

   
   

2. No permit from the Florida Department of Transportation was applied for or secured but the subject sign was erected between July 6th and July 12th, 1976. This sign is less than 1000 feet from another outdoor advertising sign which had been permitted by the Florida Department of Transportation. The subject sign owned by the Respondent was completed before the sign which is less than 1000 feet away was completed.

   
   

3. Notice of violation regarding subject sign was properly sent by the Department of Transportation and received by the Respondent.

   
   

4. No application was made prior to the erection of the subject sign to the Florida Department of Transportation and no permit was secured.

   
   

5. The Respondent secured a permit from the Palm Beach County Building Department before erection of subject sign.

6. The Petitioner contends that the sign should be removed because the Respondent erected the sign without a permit as required by the State Statutes and the erection of the sign violates the spacing requirements of the Statutes. Respondent contends that it did not apply for a permit from the Petitioner before it constructed the sign, but it did secure a building permit in Palm Beach County; that there was confusion as to the spacing requirements under Section 479.02.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 479.07 Individual Device Permits; fees; tags. --

   
   

   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 adver- tisement, outside any incorporated city or town, without first obtaining a permit there- for from the department, and paying the annual fee there for, as herein provided."

      
      

      The Respondent failed to apply for and secure a permit as required by the foregoing Statute.

      
      

8. Section 479.02 Enforcement of Provisions by Department. -- 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."

The foregoing section is discussed in the recent decision Walter P. Brazil v. Division of Administration, State of Florida, Department of Transportation, 347 So.2d 755, opinion filed June 1st, 1977. The spacing requirements of the governor's agreement promulgated pursuant to to the foregoing statute was upheld in the foregoing opinion. The requirement as pertaining to the subject sign is that no sign shall be spaced closer than 1000 feet in an area such as that in which subject sign is erected.

The fact that no sign was actually constructed before the subject sign was constructed does not deprive the owner of the sign that now stands within 1000 feet of the subject sign from his right to erect his sign inasmuch as he had properly applied and secured a permit as required in Section 479.07, Supra.

RECOMMENDATION OF LAW

Require the removal of subject sign within 30 days of the Final Order.

DONE and ENTERED this 15th day of December, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Robert D. Korner, Esquire 4790 Tamiami Trail, S. W. 8th Street

Coral Gables, Florida 33134

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-626T

) LaPOINTE OUTDOOR ADVERTISING, )

)

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, at 780 Southwest 24th Street, Ft. Lauderdale, Florida on the 19th of May, 1978, commencing at 3:20 P.M.

APPEARANCES

For Petitioner: Margaret-Ray Kemper, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Robert D. Korner, Esquire

4790 Tamiami Trail, Southwest 8th Street Coral Cables, Florida 33134

ISSUE

Whether the outdoor advertising structure of Respondent LaPointe Outdoor Advertising should be removed for failure to obtain a statue permit for building and for violation of the spacing laws.

Whether Respondent received sufficient notice that it was charged with having no currently valid permit under Section 479.07(1) Florida Statutes.

By what authority does the Department of Transportation seek to enforce a 1000 foot spacing requirement along interstate and federal aid primary roads in zoned and unzoned commercial and industrial areas?

Is the authorization in Section 479.02, Florida Statutes, originally enacted by Chapter 71-971, Laws of Florida, to the Governor and the Department of Transportation to enter into agreements in accordance with Title I of the Highway Beautification Act of 1965 an unlawful delegation of legislative authority?

Does Section III(A) of the Governor's Agreement exempt Respondent from the 1000 foot spacing requirement?

Whether the 1000 foot spacing requirement in zoned and unzoned commercial and industrial areas therein control over the 500 foot spacing requirement imposed by the Palm Beach County Sign Code.

FINDINGS OF FACT

1. Respondent LaPointe Outdoor Advertising requested an administrative hearing by letter dated March 24, 1977 after being cited by certified mail for a violation of Section 479.02, erecting a double-faced sign along Interstate I-95 within 1000 feet of another permitted sign. A follow-up violation notice was sent to Respondent by certified mail April 24, 1977 adding an additional violation for the same sign: violation of Section 479.07(1), erecting a sign without a valid permit. An administrative hearing was set and notice was mailed for a hearing on July 12, 1977. This hearing was continued on July 5, 1977. It was reset and a hearing was held with counsel for both parties present on September 20, 1977. Counsel at the hearing for Petitioner and despondent stipulated that the advertising structure in question is erected in West Palm Beach County as cited in the violation notice and is less than 1000 feet from an outdoor media sign. Pursuant to this stipulation and after considering the argument of counsel for both parties, a recommended order was entered finding that the erection of subject sign without a permit within 1000 feet of another permitted sign violated Section 479.07(1), Florida Statutes, and also Section 479.02, Florida Statutes. The Final Order of the Florida Department of Transportation adopted the Recommended Order in its entirety and issued its Final Order February 1, 1978. Then Respondent LaPointe Outdoor Advertising appealed the Final Order to the District Court of Appeal, Fourth District and the Department of Transportation thereupon moved to Remand the cause for further agency action. The motion was granted and a further hearing was held May 19, 1978, pursuant to notice dated May 5, 1978.

2. Counsel for both parties were duly noticed of the issues presented at this hearing and had ample time (in excess of a year) to prepare for hearing.

   
   

3. The outdoor advertising structure which is the subject of these proceedings is located in Palm Beach County, outside city limits, in an area zoned I-L, 1200 feet north of Linton Boulevard on the east side of I-95, approximately 75 feet east of the limited access right of way fence.

   
   

4. The subject structure was erected and is owned by LaPointe Outdoor Advertising.

   
   

5. The subject structure has never been permitted by the Department and therefore does not bear a currently valid permit tag from the state.

   
   

6. An outdoor advertising structure erected by Outdoor Media is located within 1000 feet of the subject structure. The two structures are on the same side of I-95 and are facing in the same direction.

   
   

7. Outdoor Media applied to the Department for a permit tag by application dated July 7, 1976. That application was approved by the Department's District Office on July 12, 1976 and a permanent permit tag sent to Outdoor Media by the Department's Central Office on July 26, 1976.

   
   

8. At the time Outdoor Media submitted its application there were no other existing outdoor advertising structures within 1000 feet of the proposed site and no other permit applications pending within the Florida Department of Transportation for that site or a site within 1000 feet of it. The Outdoor Media structure bears a currently valid permit tag.

   
   

9. Respondent LaPointe applied to the Department for a permit for the subject structure by application dated July 12, 1976.

   
   

10. The Department notified LaPointe, by letter dated September 9, 1976, that the Department was denying LaPointe's application because an application by Outdoor Media had been approved for a site within 1000 feet of that selected by LaPointe. Prior to September 9, 1976, LaPointe had been notified orally that its application might be denied.

    
    

11. Respondent LaPointe applied to Palm Beach County for a building permit for the subject sign on June 21, 1976 and a building permit was issued by the County on July 6, 1976. Approximately two weeks later LaPointe began construction of the subject sign. The application to the state was dated July 12, 1976.

    
    

12. Outdoor Media applied to Palm Beach County for a building permit on July 7, 1976, was issued a county permit on August 2, 1976 and began construction on or about September 20, 1976. The application to the state was dated July 7, 1976.

    
    

13. LaPointe began and completed construction of its sign prior to the time Outdoor Media began its construction.

    
    

    CONCLUSIONS OF LAW

14. Section 497.07 provides in part:

    
    

    479.07 Individual device permits; fees; tags.-

    (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 adver- tisement, outside any incorporated city or town, without first obtaining a permit there for 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 struc- ture, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any in- corporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind herein- after provided shall be issued by the depart- ment without charge and shall be affixed to the sign in the manner provided in subsection (4). . . .

    
    

15. The sign of LaPointe Outdoor Advertising was constructed along an interstate highway outside a city "without first obtaining a permit therefor" and is in violation of the foregoing statute.

    
    

16. Section 479.02 provides:

    
    

    1. Enforcement of provisions by department.-

       It shall be the function and duty of the de- partment 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 com- mercial and zoned and unzoned industrial area;

       3. Determine unzoned commercial and indus- trial areas; and

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

       
       

17. Consistent with the foregoing statute the Governor, acting for The State of Florida and the United States of America, represented by the United

    States Department of Transportation, acting by and through the Federal Highway Administration entered into an agreement on the 27th day of January, 1972

    
    

    for the purposes of carrying out national policy relative to control of outdoor adver- tising 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, Title 23, Section 131, United States Code.

    
    

    This agreement was ratified by concurrent resolution of the legislature (SCR 657) February 14, 1972 and filed in the office of the Secretary of State March 2, 1972. The agreement was promulgated by rules in the Florida Administrative Code first as 14ER77-10-11 and then as 14-10.09. The DCA, 1 on June 21, 1977 in Brazil v. Department of Administration, State of Florida, Department of Transportation, 347 So2d 755 upheld Section 479.02, F.S., as amended effective April 21, 1972 and upheld the Governor's Agreement of January 27, 1972 and the 1000 foot spacing requirement. The court noted "DOT has sufficient authority not only to enforce the agreement but also the remaining provisions of 479.02".

    
    

18. (Section 479.025 Execution of Agreement: Construction Moratorium enacted as Chapter 71-971, having served its purpose authorizing the negotiation and execution of the agreement mentioned in Section 479.02 and placing a moratorium on construction of signs until such agreement was ratified, was repealed in 1977.)

    
    

19. Respondent's sign is within 1000 feet of a properly permitted Outdoor Media sign and therefore violates the foregoing statute and the agreement promulgated thereunder.

    
    

20. The Brazil case, supra upheld the foregoing statute and the agreement. There was dicta by way of footnote in Brazil, referred to in Respondent's brief, noting that editorial changes in Section 479.02, might result in confusion as to the phrase "subject to current federal regulations". Respondent contends that the editing change made under authority of Section 11.2421, F.S., divested the Department of Transportation's authority to enforce the spacing requirements of the Section and the Agreement. This is a specious argument but such a substantive change in the statute would have to be made by legislative action rather than by a body employed to edit and compile. In any event, the statute as it appeared in Chapter 72-274, was held in Brazil to "pass muster" as to constitutionality. The spacing requirements were held to be 1000 feet between interstate signs as required by the then "current federal regulation" 23 C.F.R. Section 20.7(b)(2). The same holding would result from the statute as "reworked" as it did before editing inasmuch as there was no change in the statute and would be no change in interpretation, C.F. 72-274; Section 479.02, 1973; Section 479.02, 1975; Section 479.02, 1977. Legislative intent has been established through statute and the agreement.

    
    

21. Respondent has also argued that Section III(A) of the Governor's Agreement exempts Respondent from the 1000 foot spacing requirement and that the

    500 foot spacing requirement imposed by the Palm Beach County Sign Code controls. Both arguments are without merit. Section III(A) of the Governor's Agreement places it within the Department's discretion whether to certify an area as an area of effective local control and there is no evidence that Palm Beach County has been so certified under the agreement of January 27, 1972 and paragraph 7c(4) of the Federal-Aid Highway Program Manual 7-6-2:

    (4) the State shall notify the FHWA in writing of those zoning jurisdictions wherein local control applies. It will not be necessary to furnish a copy of the zoning ordinance. The State shall periodically assure itself that the size, lighting, and spacing control provisions of zoning ordi- nances accepted under this paragraph are actually being enforced by the local authorities,

    
    

    Further, Section 479.15(1) provides:

    
    

    No zoning board or commission nor any other public officer or agency shall permit any advertisement or advertising structure which is prohibited under the provisions of this chapter . . .

    
    

    That section clearly precludes a county from authorizing outdoor advertising prohibited pursuant to Chapter 479. Section 479.15(1) therefore precludes a county from enacting less stringent controls than those imposed pursuant to Chapter 479.

    
    

22. Section 16(A) of the Palm Beach County Sign Code provides:

    
    

    Where other signs or outdoor advertising regulations are in effect and are more restrictive than the provisions of this Code, the more restrictive provisions shall prevail. . .

    
    

    This provision accords with Section 479.15(1) and has the effect of imposing, by ordinance, the more stringent 1000 foot spacing requirement. Counties have no authority under Chapter 125, F.S., or otherwise, to pre-empt or circumvent the state's general law and authority to regulate outdoor advertising in the State of Florida inasmuch as the legislature has specifically placed the control of outdoor advertising in the state:

    
    

    1. Territory to which act applies; entries, examinations and surveys.-

    The territory under the jurisdiction of the department for the purpose of this chapter shall include all the state.

    
    

    See also Section 335.13; Section 339.301; DOT v. Wainwright, 41 FDOAH 108, F/O 55DOAH 11, now on appeal.

    
    

23. Respondent contends that the structure cannot be moved without compensation. Section 479.24(1) provides in part:

Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or

signs lawfully erected which later become nonconforming.

Section 479.24 contemplates compensation only for signs lawfully erected. The instant sign was erected in violation of 479.07(1), Section 479.02 and the Governor's Agreement of 1972. It is therefore an illegal sign subject to removal without compensation.

RECOMMENDED ORDER

Dismiss the petition and remove subject sign within ten (10) days of the date of the Final Order. The state through its Department of Transportation is charged by the legislature to administer and enforce outdoor advertising rather than the individual counties in the state. Once a permit has been granted to an advertiser by the Department, no other permit could be granted within 1,000 feet thereof.

DONE AND ENTERED this 9th day of June, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Margaret-Ray Kemper, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Robert D. Korner, Esquire

4790 Tamiami Trail, S.W. 8th Street Coral Gables, Florida 33134

Docket for Case No: 77-000626

Orders for Case No: 77-000626