STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-749T

)

HENDERSON SIGNS (2.17 miles east ) of SR 176 facing east), )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-750T

) HENDERSON SIGNS and UNION 76 ) AUTO/TRUCK STOP, INC. (2.17 miles)

east of SR 276 facing west), )

)

Respondent. )

)

RECOMMENDED ORDER

Prior to the final hearing, Respondent Henderson Signs moved to consolidate Cases No. 80-749T and 80-750T for hearing, which was granted. Final hearing in these cases was held pursuant to notice on October 1, 1980, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. These cases arose upon Notices of Violation served upon the Respondent Henderson Signs and others. Respondent Henderson Signs requested a formal hearing pursuant to Chapter 120, Florida Statutes, and the matter was forwarded to the Division of Administrative Hearings.

These cases concern allegations contained in the Notices of Violation that the two outdoor advertising structures located 2.17 miles east of State Road 276 on Interstate Highway 10 in Jackson County, Florida, and facing east and west are in violation of Sections 479.07(1), (6) and (7) and 479.11(1), Florida Statutes, and Rule 14-10.05(1)(a) , Florida Administrative Cede.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondents: Henderson Signs

James P. Appleman, Esquire

206 Market Street

Post Office Box 385 Marianna, Florida 32446

Union 76 Auto/Truck Step, Inc. No appearance

FINDING OF FACT

1. The signs in question are located in Jackson County, Florida, 2.17 miles east of State Read 276 on a read known as 1-10.

   
   

2. At the time the signs were cited for violation, they lacked any identification of their owner. The advertising message on the sign facing west was for Union 76 Auto/Truck Stop, and the advertising message on the sign facing east was for Western Motel. The Department of Transportation's inspector made inquiries at the businesses advertised and obtained information which led the inspector to believe that Henderson Signs had an ownership interest in the sign. The inspector searched the property and tax records of Jackson County and determined that the signs were located on real property belonging to Harvey Sexton.

   
   

3. Notice of Violation on the sign facing west was sent to Union 76 Auto/Truck Stop, Inc., Henderson Signs, Harvey Sexton, Florida Public Utilities Corporation and West Florida Utilities Corporation Notice of Violation on the sign facing east was sent to Western Motel, Henderson Signs, Harvey Sexton, Florida Public Utilities Corporation and West Florida Utilities Corporation. Formal hearings were requested by Respondent Henderson Signs in both cases and by Respondent Union 76 Autos Truck Step, Inc. in Case No. 80-750T. Respondent Henderson Signs appeared through in both cases. Respondent Union 76 Auto/Truck Stop, Inc. did not appear at formal hearing.

   
   

4. The Department of Transportation presented right-of-way maps, other documents, and the testimony of the District Right-of-Way Engineer showing that the Department designated a road construction project as part of the interstate system, that right-of-way maps were prepared by the Department for this project, that the Federal Highway Administrative approved the acquisition of the right- of-way for construction of this project, that the project was designated State Road 8/Interstate 10, and that the road commonly known in Jackson County as 1-10 was built on the right-of-way approved for acquisition by the Federal Highway Administration. The signs in question are located within 300 feet of the right- of-way of Interstate 10, and are visible from the traveled lanes of this roadway. The portion of Interstate 10 adjacent to the signs' location was open to public travel prior to the signs' construction in 1979.

   
   

5. The signs in question are located in an unzoned area of Jackson County, and the area in which they are located is not unzoned commercial or industrial property.

   
   

6. The signs have no permit, and the records of the Department reveal that no applications for permits have ever been submitted by their owner. At the time they were cited for violation, the signs did not bear the name of their owner.

   
   

7. The Department has made a good faith attempt to locate and notify those with a possible ownership interest in the signs, to include the businesses advertising on the signs, the owner of the land upon which the signs are located, and Henderson Signs, believed to own the signs.

   CONCLUSIONS OF LAW

   
   

8. The Department of Transportation alleges that the signs in question violate Sections 479.07(1), (6) and (7) and 479.11(1), Florida Statutes, and Rule 14-10.05(1)(a) , Florida Administrative Code. Section 479.07(1), Florida Statutes, prohibits erection of any sign without first obtaining a permit, and requires that the permit tag be attached to the sign. Section 479.07(6), Florida Statutes, prohibits a person from erecting a sign without first obtaining the written permission of the owner or lessee of the property where the sign is to be located, and requires application for and receipt of a current permit tag. Section 479.07(7), Florida Statutes, requires that any person who erects, uses or maintains a sign to affix their name to the front of the sign so that it is visible from the front surface of the structure.

   
   

9. The evidence shows that the road known in Jackson County, Florida, as 1-10 was designated prior to construction as an interstate project and assigned the designation of Interstate 10. Acquisition of the right-of-way for this project was approved by the Federal Highway Administration, and the road known as 1-10 was constructed within this approved right-of-way. Section 479.01(13), Florida Statutes, defines interstate highway as any highway designated as part of the national system of interstate and defense highways by the Department of Transportation and approved by the appropriate authority of the federal

   government. The evidence adequately established that the road known as 1-10 was designated part of the national interstate system by the Department and approved by the appropriate authority of the federal government.

   
   

10. The evidence presented also shows that the subject signs are outdoor advertising structures bearing advertising messages visible from the main traveled way of an interstate highway. The structures are sins within the definition of Section 479.01(1), Florida Statutes, and the Department has jurisdiction to regulate the signs in question under Chapter 479, Florida Statutes. The evidence also shows that the signs lack permits, that no applications were made for permits for the signs, and that at the time the signs were cited they did not bear the name of the person who erected, used or maintained the signs. No evidence was presented, regarding whether the landowner had given written permission for the signs to be erected on his property; however, the evidence does show a clear violation of Section 479.07(1), (6) and (7) , Florida Statutes.

    
    

11. The Department further alleges that the signs violate Section 479.11(1), Florida Statutes, which prohibits erection of any sign within 600 feet of the nearest edge of the right-of-way of an interstate highway. The signs are located within 600 feet of the right-of-way of Interstate 10, and are visible from the traveled way or the lanes of Interstate 10. The signs are not located within an area zoned commercial or industrial, or, in an unzoned commercial or industrial area. No evidence was presented that the signs meet any exception provided in Section 479.111, Florida Statutes. The evidence shows a violation of Section 479.11(1), Florida Statutes, and Rule 14-10.05(1)(a), Florida Administrative Code, which essentially restates the provisions of Section 479.11, Florida Statutes.

    
    

12. Section 479.17, Florida Statutes, would authorize the Department of Transportation to proceed to remove any sign erected in violation of Chapter

479. The Department has demonstrated the signs were erected in violation of Chapter 479. Pursuant to Section 479.17, the Department is only required to give notice to the owner when the owner's name appears on the sign. The signs in question did not bear the owner's name when cited, contrary to Section

479.07(?), Florida Statutes, and the Department had the obligation to notify the owner. The Department exercised reasonable diligence in attempting to locate and notice persons who might have any interest in these signs. Based upon the evidence presented, the persons noticed of the violation and those in privity with them would be bound by the orders arising out of these proceedings.

13. The issue of compensation of owners for the removal of signs is a complex issue which is now before the Supreme Court of Florida. However, it does not appear that any appellate decision has approved compensation to a sign owner for the removal of a sign which was erected after 1971 in total disregard of the law. The facts in the instant cases show the signs were illegally erected, and the Department has exercised restraint in enforcing the provisions of Chapter 479. It would appear that the removal of the subject signs should be without compensation to the owner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of both signs to include the entire advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structures after the 30-day period without compensation to the owner.

DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 31st day of October, 1980.

COPIES FURNISHED:

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

James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446

Charles M. Wynn, Esquire

310 East Jackson Street Post Office Box 793 Marianna, Florida 32446

Docket for Case No: 80-000749

Orders for Case No: 80-000749