STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNSON AND JOHNSON, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 77-1676T

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the above styled cause was heard by State Hearing Officer, Delphene C. Strickland, Division of Administrative Hearings in the Department of Transportation District Office Conference Room, South Marion Street, Lake City, Florida, commencing at 12:30 p.m., March 29, 1978.

APPEARANCES

For Petitioner: Edwin B. Browning, Esquire

Browning and Hardee Post Office Box 652 Madison, Florida 32340

For Respondent: Philip S. Bennett, Esquire

Department of Transportation The Haydon Burns Building Tallahassee, Florida 32304

ISSUE

Whether the signs of Respondent are in violation of Chapter 479, Florida Statutes, for having added lights and increased the size and for having no permit tag.

FINDINGS OF FACT

1. Respondent, Florida Department of Transportation, filed an alleged violation of Chapter 479 and Section 35.13 and 339.30(1), Florida Statutes, and notice to show cause on August 11, 1977, alleging that four signs owned by the Petitioner, Johnson and Johnson, are in violation of Chapter 479, and rules promulgated thereunder for having added lights to the signs without obtaining a permit therefore and for increasing the size of each of the signs. The Petitioner, Johnson and Johnson, Inc., stipulated that the four signs were located in the location as shown on the violation notice, that there are lights on the signs and that there was some enlargement, albeit small. They stand along Interstate-10, and lights were added much later than the original signs were permitted and erected.

2. Sign number one was enlarged from 18' x 12' as permitted to 26' x 16'. Sign number two was enlarged from 18' x 12' as permitted to 23' x 16'. Sign number three was enlarged from 18' x 12' as permitted to 24' x 16'. Sign number four was enlarged from 18' x 12' as permitted to 25' x 16'. Pictures of the signs were admitted into evidence and evidence was submitted that the additions were made by "scabes" nailed up on the poles. Said additions were of newer timber than the original signs.

   
   

3. The applications requested a permit for category 12 through 20 and the applications did not include a request for a lighted sign. No lighting was requested by checking the application to denote lighting and the dimensions in feet on each sign as requested was 18' height and 12' width. Each permit fee was $4.00.

   
   

4. The signs of Petitioner were erected prior to 1971, and inasmuch as they do not conform to the current regulations or the regulations promulgated and effective on December 8, 1971, the signs were grandfathered in and are "nonconforming" signs, not subject to immediate removal under Section 479.23 and Rule 14-10.07, but are subject to Section 479.24 as long as they are maintained in substantially the same manner as when they became nonconforming.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 479.23, Florida Statutes, provides:

   
   

   479.23 Removal of signs.- All signs which are lawfully in existence or are lawfully erected and which do not conform to the pro- visions of this chapter shall not be required to be removed by the department until after the end of the fifth year after they have become nonconforming.

   
   

6. The subject signs are eligible to be removed and are subject to he "maintained" and to compensation under Section 479.24, having become nonconforming on December 8, 1971.

   
   

7. It was not disputed that the signs had been permitted prior to the effective date of the statutes which make them nonconforming to current law and that a permit has been issued for each sign. The foregoing statute allows a sign "lawfully erected" and "lawfully in existence" at the time the current statutes went into effect to remain temporarily. The signs violate many provisions of the law effective December 8, 1971. The definition of the word "erect" in Section 479.01, excepted the "customary maintenance or repair of a sign structure". The definition of "maintain" means "to allow to exist". Subject signs of Petitioner have had lights added to them and have been substantially enlarged. The enlargement and the addition of the lights can reasonably be determined under Section 479.23 as a violation of the nonconforming status. The statutes could not be construed to mean that a sign, which does not meet the current requirements of law could be embellished by lights and enlarged. Such additions further violate current law and regulations and increase the amount of compensation ascertainable under Section 479.24, Florida Statutes.

RECOMMENDATION

Remove subject signs if the enlargement and the lights have not been removed within 10 days after entry of the final order.

DONE AND ENTERED this 10th day of July, 1979, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

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

COPIES FURNISHED:

Edwin B. Browning, Esquire Browning & Hardee

Post Office Box 652 Madison, Florida 32340

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

Docket for Case No: 77-001676

Orders for Case No: 77-001676