STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPTAIN DOUG'S RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1054T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Stephen Pfeiffer, held a public hearing in this case on September 23, 1978, in Key West, Florida.

The following appearances were entered: John Rimes, Tallahassee, Florida, for the Florida Department of Transportation, and Douglas W. Newell, the President of Captain Doug's Restaurant, Key Largo, Florida, for Captain Doug's Restaurant.

On March 27, 1978, the Florida Department of Transportation issued a notice of alleged violation against Captain Doug's Restaurant in Key Largo, Florida.

In the notice it is alleged that Captain Doug's Restaurant maintained a sign in violation of Florida Statutes Chapters 335 and 479. It was alleged that the sign conveys the message of a hazard, was built in an improperly zoned area without a county or state permit, and the sign is in the highway right of way. On May 22, 1978, Captain Doug's Restaurant requested an administrative hearing pursuant to Florida Statutes 120.57(1). In accordance with the provisions of 120.57(1)(b)(3), the Department of Transportation forwarded the matter to the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing.

The final hearing was scheduled by notice dated July 12, 1978. At the final hearing the Department of Transportation called the following witnesses: Glenda Schmidt, an outdoor advertising inspector employed by the Department; and Harey Wachob, a survey crew chief employed by the Department. Douglas Newell testified on behalf of Captain Doug's Restaurant. DOT Exhibits 1-5 were received into evidence.

At the final hearing, the Department of Transportation stipulated that Monroe County issued a permit for the sign which is the subject of this proceeding, and that the zoning is correct. The Department therefore dropped its contention that the sign was not permitted by the appropriate local governments, and that it was erected in a location that was not properly zoned for it.

FINDINGS OF FACT

1. Captain Doug's Restaurant is located on Key Largo, Florida, at approximately Mile Marker 99.5. The restaurant does business as a corporation. Douglas W. Newell is the President of the corporation, and the manager of Captain Doug's Restaurant. The restaurant is located on the ocean side of the northbound lane of U.S. Highway 1. The highway is a four-lane divided highway at that location. The median is quite broad. The median serves as a location for numerous busineses and structures, and only a portion of it serves as the highway right-of-way. Mr. Newell maintains a sign advertising Captain Doug's Restaurant just east of the southbound lane of the highway in the median. The sign, which, totals approximately twenty feet in height, has the neon letters "restaurant" on a top section. A bottom section specifies menu items available at the restaurant, and is topped by a flashing arrow which points the direction to the restaurant. The sign is essential to the restaurant's business because otherwise the restaurant would not be visible from the southbound lane of the highway.

   
   

2. The flashing arrow on the sign is an integral part of the design of the sign. It does not imply the need or requirement of stopping, or the existence of danger, but it is brighter than other parts of the sign and is likely to be distracting to motorists. The arrow would have the same advertising effects if the lights on it were on, but not flashing, and would not, with a non-flashing configuration, be as distracting to motorists. There are numerous signs located along Highway 1 in the Keys that have flashing parts, but none were observed with the flashing arrow pattern of this sign.

   
   

3. The Department of Transportation owns a right-of- way along the southbound lane of U.S. Highway 1 which extends seventy feet from the center line toward the northbound lane. The sign advertising Captain Doug's Restaurant lies totally within this right-of-way. The front of the sign is 46.2 feet from the center and the back post is 57.1 feet from the center.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.57(1), Florida Statutes (1977).

5. Section 335.13(2), Florida Statutes (1977) provides: No person shall erect any billboard,

   advertisement, advertising sign, advertising

   structure or light within the right-of-way limits of any road in the state road system. provided the Department of Transportation is authorized to adopt rules and regulations concerning the placement of signs, canopies, and other overhanging encroachments along and over all state roads which are within corporate limits of municipalities, or which are of curb and decker construction outside corporate limits, provided that no supports are located within the right-of-way. . . .

   The sign advertising Captain Doug's Restaurant violates the provisions of the statute. Rule 14-10.05, Florida Administrative Code, provides in pertinent part as follows:

   
   

   1. Certain Outdoor Advertising Prohibited; no advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

      * * *

      1. That displays intermittent lights which are not an integral part of the design or

         art of the sign or that are brighter when at full intensity than any other lights on the sign and located within one hundred feet of the right-of-way.

      2. That displays rotating or flashing lights which by their presence implies the need or requirement of stopping or the existence

         of danger or interferes with safety on the highway, and located within one hundred feet of the right-of-way.

      3. That uses the word "stop" or "danger" which presents or implies the need or requirement of stopping at the existence of danger, or which is a copy or imitation of official signs.

         
         

         The sign advertising Captain Doug's Restaurant does not violate the provisions of paragraph (e) of the rule. It does, however, contain intermittent lights that are brighter than other lights on the sign, and it could interfere with safety on the highway because it is distracting. The sign does therefore violate the provisions of paragraphs (c) and (d) of the rule. If the arrow on the sign were set so that it did not flash, it would not violate the rules.

         
         

6. A final order should be entered requiring Captain Doug's Restaurant to move its sign from the right-of-way of the southbound land of U.S. Highway 1, and requiring that when the sign is re-erected outside the right-of-way, it does not utilize a flashing arrow configuration.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

That a final order be entered directing Captain Doug's Restaurant to move its sign from the right-of-way of the southbound lane of U.S. Highway 1, and directing that if the sign is re-erected off of the right-of-way it does not utilize a flashing arrow configuration as is presently on the sign. The final order should direct that the sign be removed from the right-of-way within thirty

(30) days of the date of the final order, failing which, the Department should remove the sign.

RECOMMENDED this 25th day of October, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1979.

COPIES FURNISHED:

John Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida

Mr. Douglas W. Newell President

Captain Doug's Restaurant Post Office Box 457

Key Largo, Florida 33037

Mr. Richard C. Hurst Outdoor Advertising Haydon Burns Building

Tallahassee, Florida 32304

Mr. Tom B. Webb, Jr.

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 78-001054

Orders for Case No: 78-001054