STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAEGELE OUTDOOR ADVERTISING ) COMPANY OF JACKSONVILLE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-729T

)

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 9 July 1980 at Lake City Florida.

APPEARANCES

For Petitioner: John M. McNatt, Esquire

1500 American Heritage Life Building Jacksonville, Florida 32202

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

By letter dated 3 March 1980, Naegele Outdoor Advertising Company of Jacksonville, Petitioner, requested a hearing on the denial of its application for a permit to erect an outdoor advertising sign on the northeast corner of Union Street and Jefferson Avenue in Jacksonville, Florida. At the hearing one witness was called by Petitioner, two witnesses were called by Respondent and 14 exhibits were offered into evidence. Exhibit 13 was withdrawn before its admissibility was ruled on, the other 13 exhibits were admitted into evidence, and the parties stipulated to certain facts. There is no dispute as to the facts herein involved. Proposed recommended orders submitted by the parties hereto have been considered.

FINDINGS OF FACT

1. Union Street at its intersection with Jefferson Avenue in Jacksonville, Florida, is also known as US 23 and is a federal-aid primary highway. It is a one-way street for east-bound traffic and is located within the corporate limits of Jacksonville.

   
   

2. The proposed sign would be located on the north side of Union Street 20 feet west of the intersection with Jefferson Street and would face west to be

   viewed by the eastbound traffic on Union Street. Zoning at the proposed location is commercial/industrial.

   
   

3. Criterion Advertising Company has been issued permits for two signs near the intersection of Union Street and Jefferson Avenue (Exhibits 5 and 6). These signs are on the south side of a building on the northeast corner of this intersection, thus making them parallel to Union Street 14 feet and 20 feet respectively east of the Jefferson Avenue pavement. Jefferson Avenue is not a federal-aid primary highway.

   
   

4. In their inventory the Department of Transportation (DOT) carries the Criterion signs as facing westerly because they can be seen by the eastbound traffic on US 23.

   
   

5. There are only four blocks on an application for a sign permit in which to mark the direction in which the sign faces. These are the four cardinal points of the compass. Highways in Florida, as well as the streets in most cities in Florida, run generally in a north/south or east/west direction. Signs alongside a federal-aid primary highway that are intended to be seen by northbound traffic are carried in DOT inventory as southerly facing signs whether they actually face in a southerly compass direction or not.

   
   

6. Advertising signs, the face of which are parallel to the highway from which they are viewed, are not as saleable as are signs at right angles, or nearly so, to the highway.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The sole issue here involved is the interpretation of Rule 14- 10.06(b)(3), Florida Administrative Code, which provides that on federal-aid primary highways:

   
   

   No two structures shall be spaced less than five hundred (500) feet apart on the same

   side of the highway facing the same direction.

   
   

9. Some rules established by the Federal Highway Administration relating to signs are applicable to states. 23 CFR 750.705 provides in part:

   
   

   In order to provide effective control of outdoor advertising signs the states must:

   (g) Establish criteria for establishing which signs have been erected for the purpose of their message being read from the main- traveled way of an Interstate or primary highway, except where State law makes such criteria unnecessary. Where a sign is erected with the purpose of its message

   being read from two or more highways, one or more of which is a controlled highway, the more stringent of applicable control requirements will apply.

10. Here both the existing signs and the proposed sign, which is within

    500 feet of the existing signs, are on the same side of US 23. The existing signs actually face in a southerly direction but can be seen by the eastbound traffic on US 23.

11. Section 479.01(1), Florida Statutes, under Definitions, provides: "Sign" means any outdoor sign, display,

    device, figure, painting, drawing, message,

    placard, poster, billboard, or other thing, whether placed individually or on a V-type, back-to-back, or double-faced display, designed, intended, or used to advertise or inform, any part of the advertising or infor- mation contents of which is visible from any place on the main-traveled way of the interstate, federal-aid primary highway system or the state highway system.

    (Emphasis supplied)

    
    

12. Pursuant to this definition of sign and Section 479.07, Florida Statutes, which requires anyone erecting or maintaining a sign along a federal- aid primary highway to secure a permit therefor, Criterion Advertising Company applied for and was issued permits for the two signs on the south side of the building at the intersection of US 23 and Jefferson Avenue. But for these signs being visible from US 23, no sign permit would have been required from DOT.

    
    

13. Section 479.01(1) and 479.02, Florida Statutes, requires signs on non- federal-aid primary highways which cross federal-aid primary highways and are clearly visible from the federal-aid primary highway to be permitted. The Criterion signs fit this category. These signs must therefore comply with the requirements for signs on federal-aid primary highways. Since the Criterion signs are within 500 feet of the proposed sign and on the same side of US 23, the proposed sign violates the spacing rule above quoted if both signs face the same direction.

    
    

14. The Agreement entered into between the Governor of Florida and the

    U.S. Department of Transportation is contained in Rule 14-10.09, Florida Administrative Code, and establishes various definitions and spacing requirements. Since compliance with the Agreement is necessary for the state to obtain certain federal funds for highway construction, Rule 10.06(b)(3) must be read to conform to the spacing requirements in the Agreement.

    
    

15. Among other things, the Agreement defines "sign" to mean:

    
    

    . . . any outdoor sign, display, device figure, painting, drawing message, placard poster, billboard or other thing, whether placed individually, or on a V-type, back- to-back or double spaced display, designed, or intended to be used to advertise or inform any part of the advertising or infor- mation contents of which is visible from any place on the main-traveled way of the Inter-

    state, Federal-aid Primary Highway Systems or the State Highway Systems. (Emphasis supplied)

    
    

    and "main-traveled way" to mean:

    
    

    . . . the traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separated roadways for traffic in opposite directions is a main-traveled way. It does not include such facilities as frontage roads, turning roadways or parking areas;

    
    

    and "visible" to mean:

    
    

    . . . that the advertising copy of infor- mation contents, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity.

    
    

16. Respondent's practice is to designate, log and inventory all signs visible from federal-aid primary and interstate highways and determine the direction from which they can be seen by travelers on the primary highways.

This has resulted in the designation of the Criterion signs as west-facing signs as seen from the primary highway, US 23. This policy and practice of Respondent is of long standing. Such long-standing interpretation made by officials charged with the administration of the outdoor advertising sign statutes are entitled to great weight. Austin v. Austin, 357 So.2d 102 (Fla. 1st DCA 1977). Such long-standing construction by those charged with the administration [of the outdoor advertising sign statutes and regulations] should be followed unless there are compelling indications that such construction is wrong. E. I. Dupont de Nemours & Co. v. Collins, 53 L.Ed. 2d 100; 97 S.Ct. 2229 (U.S. 1977); State of Vermont v. Brinegar, 379 F.Supp. 606 (D.C. Vt., 1974). No such compelling reasons were presented. The fact that these signs actually face south and are seen from an east/west federal-aid primary highway does not obviate the fact that insofar as the facing of the sign along US 23 is concerned it must be considered east, west, both or neither. Here the long-standing practice followed by Respondent is to give such signs a facing as seen from the direction of travel of the closest land of travel to the sign. Since this traffic is moving east the sign is deemed west-facing by Respondent. This interpretation of the rule by Respondent appears consonant with the requirements and definitions noted in the Agreement.

From the foregoing it is concluded that the west-facing sign for which Petitioner requested a permit is within 500 feet of a permitted sign on the same side of a federal-aid primary highway facing in the same direction and is not permitable. It is therefore

RECOMMENDED that the application of Naegele Outdoor Advertising Company for a west-facing sign along US 23 in Jacksonville, Florida, 20 feet west of the intersection with Jefferson Avenue be denied.

ENTERED this 7th day of August, 1980, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

John M. McNatt, Esquire 1500 American Heritage Life Building

Jacksonville, Florida 32202

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

Docket for Case No: 80-000729

Orders for Case No: 80-000729