STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-039T

)

CHEVRON, U.S.A., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in this case on February 6, 1980, in Bartow, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: J. A. Scott

Chevron, U.S.A., Inc. 3908 10th Avenue

Tampa, Florida 33605

For Respondent: Charles Gardner, Esquire

State of Florida, Department of Transportation

Haydon Burns Building Tallahassee, Florida 32301

On January 7, 1980, the State of Florida, Department of Transportation (Department) forwarded to the Division of Administrative Hearings, pursuant to Section 120.57(1) Florida Statutes, a petition contesting the Department's intention to remove an outdoor advertising sign. The hearing was requested by Chevron, Inc., the owner of the sign.

FINDINGS OF FACT

1. By notice of alleged violation dated January 19, 1979, the Department charged that the Respondent, Chevron, U.S.A., installed a sign on 1-4, 23.86 miles east of U.S. 301, without a permit in violation of Rule 14-10.04, Florida Administrative Code. The notice also alleged that the sign was too close to an off ramp of 1-4, in violation of Title 23, Section 13, U.S. Code Para. 2(B). The parties stipulated that the sign is located along 1-4, a part of the Federal Interstate Highway Systems which was open to vehicular traffic in 1959-1960 and that the sign is located in the unincorporated area of Polk County.

   
   

2. On or about October 22, 1969, the Respondent contracted with Pickett and Associates, of Tampa1 Florida, a general contractor, to construct a complete

   operating service station at 1-4 and SR 35-A. Included in the contract price was the cost of constructing the sign in question. An engineer for Chevron, J.

   L. Edgar, requested on June 4, 1969, that Pickett and Associates proceed to obtain all permits prior to construction.

   
   

3. Due to no direct fault of the Respondent, the necessary permits to install the sign were never obtained from the Department. This fact was discovered when a sign inspector noticed the sign to be in poor condition and in need of repair. The contractor who erected the sign was contacted regarding the permits but all records relating to this particular job have been discarded. Chevron was unaware that the sign was never permitted until the notice was issued by the Department.

   
   

4. The sign is located within five hundred (500) feet of the exit ramp off 1-4 to Kathleen Road (SR 35-A) , as measured from the spot where the road widens to the exit.

   
   

5. No evidence was submitted to show that the sign was on the same property of the station or within one hundred (100) feet thereof.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 479.07, Florida Statutes, requires a permit be applied for by any person erecting an outdoor advertising sign alongside any federal aid primary highway. At the time the sign was erected, it was eligible to be permitted. See and compare Sections 479.04, 479.11 and 479.16(1); Florida Statutes (1969). In 1972, the Governor and United States Department of Transportation executed an agreement pursuant to Section 339.05, Florida Statutes, which authorized the incorporation of 23 U.S. Code 131, Federal Aid Highway Program Manual, Vol. 7, Chapter 6, Section 2, into the Florida Statutes. Pursuant to this agreement, Rule 14-10.06(1)(b)(2)(b), Florida Administrative Code was promulgated which prohibits signs located outside incorporated cities and towns from being placed within five hundred (500) feet of an interchange. The five hundred (500) feet is to be measured from the beginning or ending of the pavement where it widens at the exit or entrance to the main traveled way. Since the sign in question is within five hundred (500) feet of an interchange as measured from the beginning of the pavement where it widens at the entrance to the exit at Kathleen Road (SR 35-A) , the sign is in violation of the rule.

   
   

8. Moreover, because the sign could have been permitted since the time of its erection, the sign is also in violation of Section 479.07, Florida Statutes. It is recognized that after 1972, the sign would have been considered nonconforming and given until 1977 to be removed pursuant to the highway Beautification Act of 1965. See Section 479.23, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent's sign be found in violation of Rule 14- 10.06(1)(b)(2)(b) , Florida Administrative Code and Section 479.07, Florida Statutes.

DONE and ORDERED this 18th day of August, 1980. in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

J. A. Scott

Chevron, U.S.A., Inc. 3908 10th Avenue

Tampa, Florida 33605

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

Docket for Case No: 80-000039

Orders for Case No: 80-000039