STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-707T

) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

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 23 July 1980 at Bartow, Florida.

APPEARANCES

For Petitioner: James A. Scott

3908 Tenth Avenue Tampa, Florida

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

By letter dated March 28, 1980, Chevron USA, Petitioner, requested an administrative hearing on the denial by the Florida Department of Transportation (DOT or Respondent) of its application for a permit for a high-rise sign located at the intersection of 1-4 and US 98 near Lakeland, Florida. Grounds given for the denial of the application by DOT was that the sign was located within the interchange.

At the hearing one witness was called by Petitioner, two witnesses were called by Respondent, and two exhibits were admitted into evidence. There is no dispute regarding the facts here presented.

FINDING OF FACT

1. In 1968 Standard Oil Company entered into a contract with Puckett and Associates, a general contractor, to construct a Standard station near the intersection of 1-4 and US 98 and the erection of a "high-rise" sign visible from the 1-4 to alert motorists of the availability of a Standard station at this intersection. The contract provided for the contractor to procure all necessary permits.

   
   

2. At or about the same time Standard Oil Company, predecessor of Petitioner, purchased the property upon which the sign was erected. The

   property on which the sign was erected is within 660 feet of the right-of-way of 1-4, in an unincorporated area zoned commercial or industrial.

   
   

3. No permit for this sign was applied for by the contractor, and no permit has ever been issued to Petitioner by Respondent for this sign.

   
   

4. The sign is located in an area nearer to the US 98 intersection with the 1-4 than the beginning of the pavement widening at this exit from the 1-4. Thus, the sign is between the beginning of the off ramp from the 1-4 and US 98 when measured normal to the 1-4.

   
   

5. The sign is one of three or four similar signs owned by other oil companies in this same vicinity, none of which has ever been permitted. These signs are within 500 feet of each other.

   
   

6. No evidence was submitted upon which to predicate a finding that the sign was on the same property with the Chevron station or within 100 feet of this station.

   
   

7. Respondent has invested nearly $14,000 in this sign since its erection was commenced.

   
   

8. The sign is some five feet in height, 31 feet long, is illuminated, bears the copy STANDARD, and the bottom of the sign is some 38 feet from the ground. The sign does not interfere with visibility from the vehicles exiting or entering the 1-4 at this intersection.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Rule 14-10.09(2) , Florida Administrative Code, contains the Agreement entered between the Governor of Florida and the Federal Highway Administrator on

    27 January 1972, which provides in pertinent part under Spacing of Signs:

    
    

    2. Interstate Highway

    b. Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or safety rest area. Said five hundred (500) feet to be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.

    
    

11. At the time this sign was erected it would have been permittable, and such a permit would probably have been issued had proper application been made by Chevron USA. The fact that Chevron USA contracted with a general contractor to procure the necessary permits is indicative that Petitioner attempted to comply with all governmental requirements; however, the contractor apparently breached the contract. The fact that Respondent did not advise Petitioner during nearly 12 years of this sign's existance that the sign needed a permit does not confer any prescriptive rights upon Petitioner so as to require a permit be issued for this sign.

12. Also the fact that Respondent's sign administrator led Petitioner's representative to believe that a permit would be issued if Petitioner promptly submitted his application, does not create any estoppel or other condition now requiring the permit to be granted. Petitioner took no action to its detriment as a result of the indication the application would be approved.

    
    

13. Assuming arguendo, that this sign, and all similarly located signs, is a nonconforming sign, then ultimately all of these signs will have to be removed pursuant to the Highway Beautification Act of 1965. While this requirement has been extended by Section 479.23, Florida Statutes, until after the fifth year in which these signs become nonconforming, that time would have passed in this case had a permit been applied for and issued in 1970. The same is perhaps true for most of the existing high-rise oil company signs.

    
    

14. These high-rise signs are normally above the tree line, topography or landscape where they are located, and they serve a beneficial purpose for motorists on the interstate by alerting them to the availability of gas stations for which the motorist may carry a credit card. Being above the surrounding landscape, it could be argued that they do not mar the beauty of this landscape and therefore do not offend the policy of the Highway Beautification Act. Naturally, others would disagree with this argument.

    
    

15. If one purpose of the rule prohibiting the erection of signs within an interchange is to preclude interference with the motorists' vision or attention while in this area, these signs would not conflict with that purpose. Their height and distance from the interstate and off-ramps is such that they would block no driver's view, nor would the time needed to read the copy on these signs distract a driver's attention from the road.

    
    

16. From the foregoing it is concluded that Chevron USA's sign on the 1-4 near US 98 is within the boundaries of the intersection and is in an unincorporated area. Accordingly, this sign is not permittable. It is therefore

RECOMMENDED that the application be denied. It is further

RECOMMENDED that the Department adopt a policy applicable to all such high- rise nonconforming signs, which policy will be applied to permitted as well as presently unpermitted existing high-rise signs.

K. N. AYERS, 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 15th day of August, 1980.

COPIES FURNISHED:

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

Mr. James A. Scott

Property Management Specialist Chevron USA, Inc.

Post Office Box 520187 Miami, Florida 33152

Docket for Case No: 80-000707

Orders for Case No: 80-000707