STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1431T

)

MELWEB SIGNS, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 18, 1979, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the filing of a Notice of Violation on the Respondent, which alleged that a sign located on US Highway 1, 1.8 miles south of State Road 404, had been erected without a permit and completely rebuilt contrary to Section 479.07(1), Florida Statutes, and Rules 14-10.04(1) and 14-10.07(1) and (2)(a), Florida Administrative Code.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Was not represented

ISSUE

The issue in this case is whether the subject sign was in violation of Section 479.07(1), Florida Statutes, and Rules 14-10.04(1) and 14-10.07(1) and (2)(a), Florida Administrative Code.

FINDINGS OF FACT

1. Notice as required by the statutes and rules was provided the Respondent.

   
   

2. The sign in question bears the name of Melweb, the Respondent in this cause, on its face as required by law.

   
   

3. The sign in question was constructed on or about January 13, 1978. It was constructed in the same location as a pre-existing sign which had been destroyed. See Exhibits 3, 4 and 5. This destruction was the result of a windstorm the day before the pictures, Exhibits 3, 4 and 5, were taken.

4. The subject sign is located on US Highway 1 outside an incorporated city or town within the State of Florida, a roadway open to the public at all times relevant to the other testimony received.

   
   

5. The sign which was destroyed bore the licensing tag issued by the Department of Transportation in 1974, 442-12, and all fees were current on the sign which was destroyed. This permit is currently attached to the subject sign which is newly constructed.

   
   

6. The subject sign was constructed with new poles and new facing, and is slightly smaller than the original sign.

   
   

7. The subject sign is located 250 feet from another sign owned by Melweb on US Highway 1.

   
   

8. Melweb has not applied for a new license or permit for the subject sign, which would have been required because the original sign which was destroyed did not conform to existing standards of spacing.

   
   

   CONCLUSIONS OF LAW

   
   

9. The subject sign is alleged to violate Section 479.07(1), Florida Statutes. This section requires that the subject sign have a permit issued by the Department of Transportation attached to it. In this case the sign has a permit attached, but it is the one issued to the sign destroyed by the windstorm. This brings into play Rule 14-10.07, Florida Administrative Code.

   
   

10. This rule would provide that nonconforming signs must be retained in essentially an unaltered state, and that while they can be repaired, they cannot be reconstructed. It specifically provides that a sign destroyed by an act of God, as this one was, cannot be re-erected.

    
    

11. The rule defines "destroyed" as when the cost of the new materials to re-erect the sign exceeds 50 percent of the physically depreciated value of the structural materials in the sign immediately prior to destruction. While no evidence was presented by the Department of Transportation regarding the cost of materials, clearly the replacement of the major structural elements of the sign and its face constitutes reconstruction of the sign. The subject sign was reconstructed contrary to Rule 14-10.07.

    
    

12. The subject sign, as a "new" sign, is required to comply with Rule 14- 10.04, Florida Administrative Code, and because it would be within 250 feet of another sign it could not be permitted. The provisions of Section 479.07(1), Florida Statutes, are violated, because no application for permitting of the subject sign has been made.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the subject sign be removed by the Department of Transportation.

DONE and ORDERED this 5th day of February, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1980.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Mr. Tom Yates, Bulletin Manager Melweb Signs, Inc.

300 Fentress Boulevard Post Office Box 9130

Daytona Beach, Florida 32020

Docket for Case No: 79-001431

Orders for Case No: 79-001431