STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETERSON OUTDOOR ADVERTISING ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-643T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the above styled cause was heard on the 1st day of June, 1978 at 2:00 p.m. at the Department of Transportation District Office, Conference Room, 719 South Boulevard, Deland, Florida before Delphene C. Strickland, State Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

217 North Eola Drive Post Office Box 2151 Orlando, Florida 32802

For Respondent: Philip Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

ISSUE

Whether the sign of Petitioner should be removed for violation of Section 479.11(7) and Rule 14-10.07(2)(e), maintaining a sign in an unsafe, insecure or unsightly condition and without face or topic for over twelve months.

FINDINGS OF FACT

1. A notice of violation and notice to show cause alleging violation of the statutes and rules under Chapter 479, Outdoor Advertising, was sent to Petitioner February 16, 1978, citing a structure located .24 miles east of State Road 44 w/s on Interstate 4 with "blank" copy.

   
   

2. Petitioner requested an administrative hearing.

   
   

3. There was no dispute as to the location of the subject sign or that subject sign had carried no copy for a period of time beginning before October, 1975 and continuing until sometime immediately prior to March 13, 1978, at which time the sign structure was cleaned and an outdoor advertising copy placed thereon.

4. The sign structure carries permit tag number 4836-10, 1974. The proper fee has been paid to keep the tag current.

   
   

5. Petitioner contends: that the statute, Section 479.11 (7), is unconstitutional because it is vague; that Rule 14-10.07(2)(e), is a "prospective rule"; and, that Petitioner's sign is not in violation of the rule inasmuch as the effective date of the rule was December 10, 1977, that the sign currently is in violation of no law.

   
   

6. Respondent contends: That the sign has stood along the side of the highway in a rusted and unsightly condition, without copy for a period in excess of three years and that the rule is applicable; that the Petitioner's sign has lost its "grandfather status", which allows a sign that does not conform to current laws to stand until compensation for such sign has been paid to the owner.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 479.11(7), Florida Statutes, provides in part:

   
   

   479.11 Certain outdoor advertising prohibited.- No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   (7) Which is erected or maintained in an unsafe, insecure or unsightly condition.

   
   

   The subject sign was net unsafe or insecure but a sign structure which stands without copy is unsightly and offensive to those traveling the highways of the State of Florida, marring the natural beauty of the landscape. Petitioner's sign its not now unsightly.

8. Florida Administrative Rule 14-10.07(2)(e), provides in part: 14-10.07 Maintenance of Nonconforming Signs.

(2) The following shall apply to nonconforming signs.

(e) When a sign face remains blank, which is defined as void of advertising matter for 12 months or longer, it loses its nonconforming status and rights and must be treated as an abandoned or discontinued sign. Signs displaying bona fide public interest messages covering the entire sign face with art work done in a professional manner will retain their nonconforming status if lawfully maintained.

Signs displaying an "available for lease" or similar message and partially obliterated signs which do not identify a particular product, service, or facility are considered to be blank signs.

When the outdoor advertising inspector first observes a blank sign as described in paragraph (e) above, he will complete a

description of the sign on Form Number 178-502, attach a dated photograph of the

sign in the blank condition, and enter the date in the sign inventory that the sign was first observed to be blank. The above data should be appropriately filed for follow-up inspection at the end of the 12 month period. If the sign remains blank at the end of the

12 month period, a violation notice will be issued to the sign owner.

This rule was promulgated March 28, 1977 and amended December 10, 1977. The 12 month period covered by the amended rule is effective beginning December 10, 1977. At the time of the violation notice the sign of the Petitioner was not in violation of the 12 month period so it had not at that time lost its nonconforming status. The Respondent continued to accept payment for and kept current the permit of Petitioner. The sign had hen in violation of Chapter 479.11(7), as being allowed to stand in an unsightly condition along the Interstate Highway, hut no citation was issued against Petitioner. The Rule promulgated by the Respondent is a prospertive rule and the 12 month period during which time the Petitioner had to rectify the blank status of its sign had not run when the sign was refurbished and copy attached.

RECOMMENDATION

Dismiss the complaint against the Petitioner.

DONE AND ENTERED this 21st day of August, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Gerald S. Livingston, Esquire

217 North Eola Drive Post Office Box 2151 Orlando, Florida 32802

Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 78-000643

Orders for Case No: 78-000643