STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-021T

) AMERICAN SIGN AND INDICATOR ) CORPORATION, )

)

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 at Lake City, Florida, on June 5, 1981.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Frederick R. Brock, Esquire

701 Fisk Street, Suite 300

Jacksonville, Florida 32204

By Notice of Alleged Violation dated October 21, 1980, the Department of Transportation, Petitioner or DOT, seeks removal of a sign owned by Respondent on State Road A1A 1.72 miles north of St. Johns County line. As grounds for the removal it is alleged that the sign was rebuilt by Respondent without applying for a permit and the sign has moving lights. At the hearing, Petitioner stipulated that if the lighting on this sign is not prohibited by the statutes and rules promulgated thereunder, the sign is eligible for a permit and one will issue if application therefor is submitted by Respondent. The parties stipulated that Respondent is the owner of the sign involved, that this sign is an advertising sign located within 600 feet of State Road A1A, can be seen from A1A, and that the sign is located within the city limits of Jacksonville Beach, Florida. DOT further stipulated that an earlier sign at this location was permitted.

Two witnesses were called by Petitioner, two witnesses were called by Respondent, and ten exhibits were admitted into evidence. Proposed findings submitted by the parties and not included herein were not supported by the evidence, were irrelevant, or were deemed immaterial to the result reached.

FINDINGS OF FACT

1. American Sign and Indicator Corporation (Respondent or ASI), and owner of the sign involved, has rebuilt a sign on State Road A1A 1.72 miles north of St. Johns County line in the vicinity of the Sheraton Inn and within the city limits of Jacksonville Beach, Florida.

   
   

2. The construction resulted in a different type structure and not simply repairs to an existing sign which had previously been permitted by DOT.

   
   

3. State Road A1A in the vicinity of this sign is federal-aid primary highway, and the sign requires a permit to be a lawful sign.

   
   

4. This sign is a visual display sign with internal lighting to produce the message. The sign's internal lights present the name "Sheraton Inn" and the temperature on the display panel (Exhibit 4). In addition the panel can be programmed to produce any desired combination of letters or numbers, and thereby produce a message. This message can be displayed in the fixed mode or in a traveling mode. Since the matrix of lights comprising the message section is computer controlled, the various types of presentations can be programmed for the desired message and mode of presentation by sequencing the times the lights come on and go off.

   
   

5. Prior to rebuilding this sign Respondent obtained a building permit from the City of Jacksonville Beach. At this time Respondent was unaware that a DOT-issued permit for this sign was also required.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Respondent's contention that it acted in good faith when erecting the sign, that it obtained a building permit from the City of Jacksonville Beach, and that it had no reason to believe a permit was needed for this sign erected along a state road is wholly without merit. In the first place, Respondent is in the sign business, and it can hardly be deemed unreasonable to require one in a business to be cognizant of the laws specifically related to that business with which it must comply. The individual sign owner who is not in the business of erecting signs is not excused, and his sign legitimized, just because he was unaware he could not erect a sign along a federal-aid primary highway in an area not zoned or unzoned commercial and industrial.

   
   

8. The single, meritorious issue in these proceedings is whether the sign erected by Respondent is a permissible sign. The area is properly zoned to permit the erection of an outdoor advertising sign provided it complies with the provisions of Chapter 479, Florida Statutes. Section 479.11, Florida Statutes, provides in pertinent part:

   
   

   No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   (3) Which displays intermittent lights not embodied in an outdoor advertising sign, or any rotating or flashing light within lOO feet of the state-owned right-of-way.

9. There is no external lighting for this sign as all lighting is embodied in the sign. Nor does this sign contain rotating or flashing lights as contemplated by this statute. If no other provision respecting lighting on signs existed, this sign would be permissible as Section 479.11 would not prohibit a sign of the type proposed by Respondent.

   
   

   Section 479.02, Florida Statutes, provides in part:

   1. It shall be the function and duty of the department, subject to current federal regulations, to:

      1. Administer and enforce the provisions of this chapter, including, but not limited to, executing agree ments in conjunction with the Governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code....

         
         

10. In 1972 the Governor of Florida entered into an Agreement with the Federal Highway Administration to carry out national policy respecting outdoor advertising signs along designated highways. This Agreement which is contained in Rule 14-10.09, Florida Administrative Code, is entitled Agreement Relating to Size, Lighting and Spacing of Signs Along Interstate and Federal Aid Highways.

    
    

11. With respect to the lighting of signs on federal-aid primary highways, this rule provides:

    
    

    l. Signs which contain, include or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather or similar information.

    
    

12. Subsequent to the enactment of Section 479.11(3) above quoted the Legislature enacted Section 479.02 authorizing execution of the Agreement. Had the Agreement been deemed by the Legislature to conflict with Section 479.11(3) the Legislature presumably would have modified the statute to agree with the rule, or taken action to modify the Agreement. Since the Legislature did neither, it can be concluded that the Agreement is the proper and correct description of those lighted signs which are prohibited. Thus the flashing lights which are proscribed by the statute include intermittent and moving lights prohibited by the Agreement.

    
    

13. This Agreement - Rule interpretation of those lighted signs which are prohibited alongside federal-aid primary highways is an interpretation of long standing by the agency charged with the responsibility for carrying out the Florida outdoor advertising laws and the Federal Highway Beautification Act. As such it is entitled to great weight, E. I. DuPont de Nemours & Co. v. Collins, 53 L.Ed.2d 100, 97 S. Ct. 2229 (1977); Austin v. Austin, 330 So.2d 102 (Fla. 1st DCA 1977). The fact that this rule has been in effect for a considerable period of time without being changed by the Legislature despite numerous opportunities to do so further strengthens the conclusion that this interpretation is in agreement with the legislative intent.

14. This identical issue was considered by the New Jersey Department of Transportation, In Re: Appeal of American Sign and Indicator Corporation Concerning Variable Message Signs, which approved a hearing examiner's recommendation entered September 22, 1978, that a sign apparently identical to the sign here involved - be permitted. The hearing examiner and the commissioner concluded that the type sign used by ASI did not show "flashing" lights, that this type sign was not in existence at the time the Agreement with the Federal Highway Administration was entered into, and that the Agreement did not contemplate a sophisticated sign like that of applicant which would not distract the motorist's attention and present a hazard.

    
    

15. While I would agree that the sign here involved is not the type of "bad" sign the Federal Highway Beautification Act intended to eliminate and that the illumination in this sign does not create the "flash" that tends to distract the motorist, nevertheless the sign in its primary operating mode contains "moving" lights. Respondent's witness described this display as a traveling mode in which the message appeared on the display in a sequence of letters as if written one letter at a time until the message is complete. With computer programming capability it would appear possible to flash the complete message desired at any interval. Thus, the sign is capable of transmitting its message by flashing lights or moving lights. In either cases lights go on and off to produce the moving or flashing effect. Both are prohibited by the Agreement adopted as Rule 14-10.09, Florida Administrative Code, except insofar as they give public service messages such as time, temperature, weather, etc.

    
    

16. Since the sign involved does not appear to be the type sign the Highway Beautification Act intended to eradicate, perhaps this sign should be permitted. If so, this is a determination to be made by the Legislature or by the Department by revising Rule 14-10.09. So long as this rule remains in effect signs alongside federal-aid primary highways which contain moving lights are prohibited.

    
    

17. From the foregoing it is concluded that the sign owned by Respondent adjacent to the Sheraton Inn at Jacksonville Beach, Florida, can be permitted only for operation of its display in the fixed mode. Operating the display in the traveling mode will violate the provisions of Rule 14-10.09 above quoted. It is therefore

RECOMMENDED that Respondent's sign located on State Road A1A 1.72 miles north of St. Johns County line be removed unless application for permit is submitted. Upon receipt of an application for permit it is further

RECOMMENDED that this application be approved only for operation in the fixed mode with only public service messages such as time, temperature, etc. operated in the traveling mode.

ENTERED this 29th day of June, 1981, Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1981.

COPIES FURNISHED:

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

Frederick R. Brock, Esquire 701 Fisk Street, Suite 300

Jacksonville, Florida 32204

Docket for Case No: 81-000021

Orders for Case No: 81-000021