STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEATH AND COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2215T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 18, 1980, in Daytona Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the denial by the Department of Transportation of a permit to alter a nonconforming sign of the Petitioner, Heath and Company. The Petitioner requested a hearing, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57, Florida Statutes.

APPEARANCES

For Petitioner: Mr. Harry Bahner

Heath and Company Post Office Box 22066 Tampa, Florida 33022

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

ISSUE

The parties are in agreement regarding the facts surrounding this application as presented in their stipulation read into the record at caring. The only issue is a legal issue, whether the sign as it would be altered would "remain substantially the same."

FINDINGS OF FACT

Pursuant to stipulation, the following findings of fact are made:

1. The applications for the modifications to the two faces of the existing sign were received as Exhibits 1 and 2, together with the blueprint drawing of the proposed sign together with a photograph of the existing sign, which was received as Exhibit 3.

   
   

2. The signs in question, two faces on the same sign, are located within the city limits.

3. The signs are off-site nonconforming signs and do not conform to spacing requirements, i.e. the distance between signs.

   
   

4. The signs are located on an interstate highway.

   
   

5. Chevron requests the change in order to make the signs conform to its corporate identity.

   
   

6. The Department of Transportation opposes the change because the signs are grandfathered "legal" nonconforming signs, and the Department asserts that Section 14-10.07(2)(a), Florida Administrative Code, prohibits the requested modification.

   
   

7. The proposed alteration would not exceed 25 percent of the preexisting value of the signs, they would be reduced in height from 58 feet to 50 feet, and the size of each face would be reduced in size from 570 square feet to 408 square feet. 1/

   
   

   Based upon the evidence presented, the following findings of fact are made:

   
   

8. The existing signs are in excellent condition and, given the permitted maintenance, would last an indefinite length of time.

   
   

9. Because of the reduction in height and face size of the signs, the value of the altered signs as it is computed by the Department for purposes of purchasing the signs would be less than the value of the unaltered signs.

   
   

10. The Department has an obligation to purchase nonconforming signs as funds become available in order to comply with the Federal Highway Beautification Act.

    
    

    CONCLUSIONS OF LAW

    
    

11. The sign faces in question are regulated by the Department of Transportation, which has the authority to approve the Petitioner's application to modify the signs.

    
    

12. The issue is whether the proposed modification is prohibited by Rule 14-10.07, Florida Administrative Code. Paragraph (2)(a) of this rule provides as follows:

    
    

    1. The following shall apply to noncon- forming signs:

       1. A nonconforming sign must remain substantially the same as it was as of the date it became nonconforming. Reasonable repair and maintenance, including change of advertising message, is not a change which would terminate non- conforming right. ...

13. This provision is amplified and further defined by Paragraph (f) of tie same rule, which provides:

    
    

    (f) For purposes of (1) above, the term "change of advertising message" shall include situations involving "rotate bulletins" wherein the entire face of the sign is changed or replaced, pro- vided the basic dimensions of the new face are substantially the same as the original sign face. The addition of cutouts, exten- ions or embellishments to the

    new face will be considered a substantial change. (Emphasis supplied)

    
    

14. Although exemptions to a general provision of broad scope such as Paragraph (a) must be construed strictly, clearly Paragraph (f) implicitly recognizes that changes in advertising message may include changes other than "rotate bulletins." See language emphasized above in Paragraph (f).

    
    

15. The proposed change constitutes a change in advertising message of a type other than rotating a bulletin. It changes the corporation and its products advertised to the public from Chevron-Standard to Chevron. However, the proposed change must comply with the latter provisions of Paragraph (f) , which specifically prohibits expansion of the sign face when an advertisement is changed. However, the instant case involves a smaller sign face. In this regard, Paragraph (f) further provides that when the entire face is changed or replaced, the basic dimensions of the new face shall be substantially the same as the original sign face.

    
    

16. The rule does not state specifically what dimensions are basic, nor amplify what is considered a substantial change when a sign face is reduced in size; however, the rule does implicitly recognize that dimensions may change to some degree.

    
    

17. As stated in the Findings of Fact, the parties erred by failing to divide the size of the sign faces by the number of faces. The existing sign face, including the "This Exit" sign, is 285 square feet. The size of the proposed sign face, including the "This Exit" sign is 204 square feet.

    
    

18. The rough dimensions of the irregularly-shaped original sign are 12 by

    40 feet. The rough dimensions of the proposed sign are 14 by 12 feet. A comparison of the square footage of the two signs' areas provide another rough means of comparing the actual dimensions of irregularly-shaped signs. The square footage of the existing sign including the "This Exit" sign is 285 square feet, compared to 204 square feet for the proposed sign. Whether one compares the area or the maximum linear dimensions, clearly there is a substantial change. In addition, the proposed sign would be reduced eight feet in overall height from 58 feet to 50 feet.

    
    

19. Therefore, although the proposed change in advertising message is an exception to Rule 14-10.07(2)(a), Florida Administrative Code, the new face has substantially different dimensions than the original face, although clearly smaller and lower. Failing to meet the criteria for this exception because of

the substantial change in dimensions of the existing sign, the proposed alteration is prohibited by Rule 14-10.07(2)(a), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the application of Heath and Company be denied.

DONE and ORDERED this 16th day of January, 1981, 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 16th day of January, 1981.

ENDNOTE

1/ The stipulation of the parties regarding size of the signs has been compared with the blueprints and found to be in error as follows: The size of the face on one side, to include the "This Exit" sign, is 204 square feet, or one-half the size stated in the stipulation. The size of one face of the existing sign, including the existing "This Exit" sign, would be approximately 285 square feet. These size figures are adopted as the actual figures for the findings of fact due to the obvious error in the stipulation.

COPIES FURNISHED:

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

Mr. Harry Bahner Heath and Company Post Office Box 22066 Tampa, Florida 33622

Docket for Case No: 80-002215

Orders for Case No: 80-002215