Judges: SHARYN L. SMITH
Agency: Department of Transportation
Latest Update: Jan. 26, 1981
Summary: Respondent's sign was nonconforming and unpermitted in statutory violation on federal primary aid highway. Yet, it should be allowed for five years.
79-1360.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF )
TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1360T
)
RON SORG, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held in Bartow, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on February 6, 1980. The parties were represented as follows:
APPEARANCES
For Petitioner: Charles Gardner, Esquire
State of Florida, Department of Transportation
Haydon Burns Building 605 Suwannee Street
Tallahassee, Florida 32301
For Respondent: Ron Sorg
c/o Sorg and Son, Inc.
105 Ravenway Drive Seffner, Florida 33584
The issue involved in this case is whether the Respondent's sign is in violation of Sections 479.07 and 479.111, Florida Statutes and Rules 14-10.04 and 14-10.05, Florida Administrative Code.
FINDINGS OF FACT
By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg installed a sign on U.S. 301, 7.19 miles south of I-4 in violation of Rules 14-
10.04 and 14-10.05, Florida Administrative Code.
The sign in question is an outdoor advertising, sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years.
The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road.
Until 1976, the road on which the sign borders was a federal-aid secondary road.
Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979.
Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign.
Both parties agreed to submit the legal issue to the Hearing Officer for determination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1) and Section 120.65, Florida Statutes (1979).
Section 479.01, Florida Statutes requires that outdoor advertising signs which are operated, used or maintained outside any incorporated city or town or which are along any federal aid primary highway within an incorporated city or town, shall he permitted by the Department. The failure to affix a tag to an outdoor advertising sign which is required to 110 permitted is prima facie evidence that the sign is being operated in violation of Chapter 479, Florida Statutes. The burden of proving entitlement to any exceptions of the chapter's advertising requirements is upon the Petitioner. Walker v. State Department of Transportation, 352 So.2d 126, 127 (1st DCA 1977).
The sign in question was in existence in 1971. The law in effect at that time did not prohibit the sign but did require that it be permitted. Subsequently, Section 6, Chapter 71-971, was enacted which limited the type and location of signs which could be permitted. See Section 479.111, Florida Statutes, 1973. This statute was limited, however, to controlled areas within the interstate and federal-aid primary system. At the time of enactment of Section 479.111, Florida Statutes, the sign in question was not subject to the statute because it was not within a controlled position of a federal aid primary road and hence, could have been permitted.
In 1976, he highway adjacent to the sign was reclassified as a federal aid primary road and the sign became nonconforming. Section 479.23, Florida Statutes, 1973 provides that all signs lawfully in existence or that are lawfully erected and which do not conform to the provisions of Chapter 479 shall be removed by the Department by the end of the fifth year after they have become nonconforming. This provision has recently been construed to mean that if the sign was lawfully in existence prior to December 8, 1971 and thereafter became nonconforming it is not subject to removal until after the fifth year of its nonconformity and then only upon the payment of compensation. Henderson Sign Service v. Department of Transportation, Case No. NN-112, District Court of Appeal, First District, opinion filed November 19, 1980.
Therefore, the sign in question is nonconforming and subject to removal five years from the date the adjacent highway was reclassified to become part of the federal-aid primary system. This conclusion is not inconsistent with the result reached in Henderson, supra. In that case, unlike the present one, the appellants never established the date of the erection of the unpermitted sign or the date the adjacent highway became part of the interstate system. Under such circumstances, the statutory presumption that an unpermitted
sign is illegal was never overcome and hence the sign was required to be removed.
Therefore, it is RECOMMENDED that the sign in question be considered nonconforming until December 31, 1981.
DONE and RECOMMENDED this 12th day of December, 1980.
SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1980.
COPIES FURNISHED:
Charles Gardner, Esquire Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32301
Ron Sorg
c/o Sorg and Son, Inc.
105 Ravenway Drive Seffner, Florida 33584
================================================================= AGENCY FINAL ORDER
=================================================================
NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL REVIEW AND DISPOSITION THEREOF IF FILED
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
FLORIDA DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 79-1360T
RON SORG,
Respondent.
/
FINAL ORDER
The record in this cause has been reviewed together with the Recommended Order of the Hearing Officer.
The Findings of Fact of the Bearing Officer are supported by the evidence and are accepted as correct. However, the Conclusions of Law and the recommendation that the sign be considered nonconforming until December 31, 1981, are not accepted. The Findings of Fact and Conclusions of Law are as follows:
FINDINGS OF FACT
By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg, installed a sign on U.S 301, 7.19 miles south of 1-4 in violation of Rules 14-
10.04 and 14-10.05, Florida Administrative Code.
The sign in question is an outdoor advertising sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years.
The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road.
Until 1976, the road on which the sign borders was a federal-aid secondary road.
Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979.
Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign.
Both parties agreed to submit the legal issue to the Hearing Officer for determination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1) and Section 120.65, Florida Statutes (1979).
Section 479.01, Florida Statutes, requires that outdoor advertising signs which are operated, used, or maintained outside any incorporated city or town or which are along any federal aid primary highway within an incorporated city or town, shall be permitted by the Department. The failure to affix a tag to an outdoor advertising sign which is required to be permitted is prima facie evidence that the sign is being operated in violation of Chapter 479, Florida Statutes. The burden of proving entitlement to any exceptions of the chapter's advertising requirements is upon the Petitioner. Walker v. State Department of Transportation, 352 So.2d 126, 127 (1st DCA 1977).
The sign in question was in existence in 1971. The law in effect at that time did not prohibit the sign but did require that it be permitted.
Subsequently, Section 6, Chapter 71-971, was enacted which limited the type and location of signs which could be permitted. See Section 479.111, Florida Statutes, 1973. This statute was limited, however, to controlled areas within the interstate and federal-aid primary system. At the time of enactment of Section 479.111, Florida Statutes, the sign in question was not subject to the statute because it was not within a controlled position of a federal aid primary road and hence, could have been permitted.
In 1976, the highway adjacent to the sign was reclassified as a federal aid primary road and the sign became nonconforming. Section 479.23, Florida Statutes, 1973, provides that all signs lawfully in existence or that are lawfully erected and which do not conform to the provisions of Chapter 479 shall be removed by the Department by the end of the fifth year after they have become nonconforming. This provision has recently been construed to mean that if the sign was lawfully in existence prior to December 8, 1971, and thereafter became nonconforming it is not subject to removal until after the fifth year of its nonconformity and then only upon payment of compensation. Henderson Sign Service v. Department of Transportation, Case No. NN-112, District Court of Appeal, First District, opinion filed November 19, 1980.
Therefore, the sign in question is nonconforming and subject to removal five years from the date the adjacent highway was reclassified to become part of the federal-aid primary system. This conclusion is not inconsistent with the result reached in Henderson, supra. In that case, unlike the present one, the appellants never established the date of the erection of the unpermitted sign or the date the adjacent highway became part of the interstate system. Under such circumstances, the statutory presumption that an unpermitted sign is illegal was never overcome and hence the sign was required to be removed.
Therefore, it is RECOMMENDED that the sign in question be considered nonconforming until December 31, 1981.
The difficulty arises with the finding that the sign owner did not obtain the required permit at the time of erection of the sign or at any time during the period it was conforming and a permit could have been issued. That being the case, the sign was not legally erected and never legally in existence; now the use of the site for a sign is prohibited and it is not eligible for a permit.
ORDERED that the sign be removed this 22nd day of January, 1981.
WILLIAM N. ROSE SECRETARY
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301
Sharyn L. Smith, Esquire Mr. Ron Sorg
Hearing Officer c/o Sorg and Son, Inc. Division of Administrative Hearings 105 Ravenway Drive
101 Collins Building Seffner, Florida 33584 Tallahassee, Florida 32301
Patrick D. Galvin, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Charles G. Gardner, Esquire
Florida Department of Transportation Haydon Burns Building
Tallahassee, Florida 32301
Docket for Case No: 79-001360
Orders for Case No: 79-001360
| Issue Date |
Document |
Summary |
|
Jan. 22, 1981 |
Agency Final Order
|
|
|
Dec. 12, 1980 |
Recommended Order
|
Respondent's sign was nonconforming and unpermitted in statutory violation on federal primary aid highway. Yet, it should be allowed for five years.
|
