STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1047T

)

CANNON MOTEL, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before Delphene C. Strickland, Hearing Officer, in the Third District Office of the Department of Transportation, U.S. Highway 90, Chipley, Florida, on July 15, 1977, commencing at 2:00 P.M.

APPEARANCES

For Petitioner: George Wane, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: James E. Moore, Esquire

Moore and Anchors Post Office Fox 746

Niceville, Florida 32578

ISSUE

Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.

FINDINGS OF FACT

1. Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing.

   
   

2. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard.

3. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road

   85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation.

   
   

4. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 479.07, Florida Statutes, Individual device permits; fees; tags.-, provides in part:

   
   

   "(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 first 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 affixed to the sign in the manner provided in subsection (4) "

   
   

   No permits were applied for or secured by that Respondent.

   
   

6. Section 479.11, Florida Statutes, Certain outdoor advertising prohibited.-, provides in part:

   
   

   "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. . ." (The exceptions are inapplicable.)

      "(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, . . ." (Exceptions are inapplicable.)

      
      

7. The subject signs violated the foregoing set-hack requirements.

   
   

8. Section 479.02, Florida Statutes, Enforcement of provisions by department.-, provides in part:

   
   

   "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 28, U.S. Code."

      
      

9. The agreement executed pursuant to the foregoing section on January 27, 1972, (the full text of which can be found in Chapter 14-10.06, Florida Administrative Code) provides in part:

   
   

   "Section III. State Control

   
   

   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 erection and maintenance of outdoor advertising 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, (Section

   476.16 Certain advertisement excepted is not applicable) in accordance with tie following criteria:

   
   

   A. In zoned commercial and industrial areas, the State may notify the Administrator as notice of effective control that here has been established within such areas regulations which are enforced with respect to 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, size, lighting, and spacing requirements set forth below shall not apply."

10. Thus, local units of government, including Crescent City and Okaloosa County, must submit their zoning regulations to the Florida Department of Transportation, which is charged with the enforcement of all laws and rules involving out door advertising, for its review. It must in turn notify the federal highway administrator that there has been established within the zoned areas enforced regulations consistent with state laws and the Highway Beautification Act. The Respondent has not complied with the foregoing requirements.

RECOMMENDATION

Remove the subject signs within ten (10) days of the filing of the Final Order.

DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

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

James E. Moore, Esquire Moore and Anchors

Post Office Box 746 Niceville, Florida 32578

Docket for Case No: 77-001047

Orders for Case No: 77-001047