STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1678T

)

FOSTER & KLEISER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 14, 1979 at Bartow, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

For Respondent: Horace A. Andrews, Esquire

Post Office Drawer 1441

St. Petersburg, Florida 33731

By Notice of Alleged Violation dated July 11, 1979, Petitioner seeks removal of Respondent's signs (one structure facing both north and south) on SR 60, 2.73 miles west of U.S 41. As grounds there for it is alleged that the signs have no permit and violate the spacing requirements so as to be not permittable.

One witness was called by Petitioner, four witnesses were called by Respondent and five exhibits were admitted into evidence. In addition the parties stipulated that the lease for the property on which the sign was erected and the building permit to erect this sign were executed in August, 1974.

FINDINGS OF FACT

1. There is no dispute regarding the facts here involved.

   
   

2. SR 60 is a federal aid primary highway and the signs are located within the city limits of Tampa, Florida. No permit has been issued and the sign structure is located 150 feet from a permitted sign. Accordingly the signs violate the spacing requirements of the statutes.

   
   

3. This is really the only issue here involved; however, both parties presented evidence and Respondent submitted a proposed recommended order on

   whether or not an application for a permit for these signs should be approved. Resolving this issue would be premature and result in an advisory opinion.

   However, to preserve the evidence and save having to repeat the hearing when, and if, Respondent submits an application for a permit the following is submitted.

   
   

4. The signs in question were erected within the city limits of Tampa in 1974. At the time these signs were erected no state permit was required.

   
   

5. In 1976 an application was submitted for a permit for these signs. This application was returned to the applicant to resubmit on new forms and be sure to complete the application (Exhibit 2).

   
   

6. The permitted sign, from which the instant sign is not the required spacing, is located on the right of way of the cross town expressway, and when construction starts, this sign will be removed.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

   
   

8. No permit has ever been issued for these signs and the signs are located less than 500 feet from a permitted sign. Accordingly Petitioner has clearly shown the sign to be in violation as alleged.

   
   

9. Although the permittability of those signs was not before the Hearing Officer, evidence and legal arguments On this issue were presented. To preclude having to resubmit these issues the following is submitted.

   
   

10. Prior to 1972 Section 479.03 Florida Statutes clearly limited the jurisdiction of the department respecting outdoor advertising signs to areas in this state outside the corporate limits of any city or town.

    
    

11. In Laws, 1971, c.71-971, Section 479.03 was amended by deleting the reference to corporate limits so the first sentence of that section read:

    
    

    The territory under the jurisdiction of the department for the purposes of this chapter shall include all of the state.

    
    

    However, Section 479.07 excluded from the requirement of a permit signs located within the corporate limits of a city or town by providing:

    
    

    1. Except as in this chapter otherwise provided, no person shall construct, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided.

12. Laws, 1974, c.74-90 added, inter alia, the following two sentences to Section 479.07(1).

    
    

    Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or Interstate Highway within any incorporated city or town shall apply for a permit on a form provided by the department.

    The permanent permit tag of the kind hereafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4).

    
    

13. The change to section 479.03 to give the department jurisdiction over signs throughout the state became effective February 28, 1972. However, no permits were required for signs in incorporated areas of cities and towns until the 1974 change became effective on July 1, 1975, and then only along federal aid primary highways and Interstate Highways. Thus, although the department had jurisdiction within incorporated cities and towns after 1972, no permit from the department was required to erect a sign within incorporated limits. All that was required was the sign owner get the necessary building permit from the city. Spacing or other requirements were not applicable unless made so by city ordinances.

    
    

14. However, following the statutory change effective July 1, 1975 all signs within incorporated cities and towns along federal aid primary highways and Interstate Highways were required to have a state issued permit. During the period following July 1, 1975 until the present some confusion has existed respecting the treatment of nonconforming signs erected prior to February 28, 1972 and July 1, 1975.

    
    

15. Petitioner contends that only nonconforming signs located within incorporated cities or towns erected before February 28, 1972 have grandfather status and can be permitted at this time. Nonconforming signs along federal aid primary and Interstate Highways in incorporated cities and towns erected after February 28, 1972 and which have not been permitted, Petitioner now contends are not permittable. Respondent contends that nonconforming signs erected in incorporated cities or towns prior to July 1, 1975 have grandfather status and are presently permittable. In this case Respondent also claims the denial of its application for a permit in 1976 was wrong and the applied for permit should have been issued then. Denial of the permit in 1976 constituted final agency action, and cannot be reviewed at this time which is more than three years after the action was taken.

    
    

16. In the case of Lamar Citrus Outdoor v. Department of Transportation, Case No. 79-940T the following Conclusion of Law was adopted by the department:

    
    

    Petitioner's signs were erected prior to the time permits were required for signs located within city limits and as such enjoy grandfather status as nonconforming signs.

17. As noted above the only issue presented by the pleadings is whether or not the sign is in violation as alleged. The issue as to whether these signs are permittable, although argued, is not before me.

    
    

18. From the foregoing it is concluded that Respondent's signs located on SR 60, 2.73 miles west of U.S. 41 have no permit as alleged and that they are located within 500 feet of a permitted sign in violation of Rule 14-10.06 Florida Administrative Code. It is therefore

RECOMMENDED that the signs be removed.

DONE and ENTERED this 20th day of December, 1979, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

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

Horace A. Andrews, Esquire Harris, Barrett & Dew

Post Office Drawer 1441

St. Petersburg, Florida 33731

Docket for Case No: 79-001678

Orders for Case No: 79-001678