STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-104T

)

HENDERSON SIGNS (1.4 miles )

east of SR 71, facing east), )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-105T

)

HENDERSON SIGNS (1.4 miles )

east of SR 71 [2], facing )

east), )

)

Respondent. )

)

RECOMMENDED ORDER

Formal Hearing in these cases was held pursuant to notice on April 22 and 23, 1981, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. These cases arose on Notices of Violation filed by the Department of Transportation on Henderson Signs alleging that the subject signs were in violation of Chapter 479, Florida Statutes, and seeking the removal of said signs.

APPEARANCES

For Petitioner Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent Charles M. Wynn, Esquire

310 Jackson Street Post Office Box 793

Marianna, Florida 32446

These cases were docketed with several similar cases for hearing on April

22 and 23, 1981. After testimony was received in Case No. 81-099T, which was generally applicable to all the other cases, it was agreed that said testimony relating to the status of the highway known as I-10 would be adopted as to the other cases pending (Cases No. 81-099T through 81-103T, and 81-106T and 81- 107T). It was further agreed that the portion of the testimony specifically

related to individual signs would be received regarding that particular sign. The parties stipulated that the signs were at the location stated in the Notice of Violation.

The Department presented evidence showing that the subject signs were outdoor advertising signs within the meaning of Chapter 479, Florida Statutes, were not permitted as required by said statute, and no permits had ever been requested for the signs. Evidence was also received that Henderson Signs was responsible for erection of these signs and had a proprietary interest in the signs.

Henderson Signs introduced evidence that it had erected the poles for the subject signs between June, 1975, and June, 1976, and subsequently affixed advertising messages to the poles.

In rebuttal, the Department offered the testimony of two witnesses that the advertising messages were not affixed to the poles until after the highway was open to the public and offered aerial photographs taken in 1979 of the subject signs' location which do not show any indication of poles or signs at the subject location.

ISSUES

Based upon the testimony received the primary issue is whether the poles were erected before the highway, I-10, was opened to the public.

If so, do such poles constitute signs within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such structures?

FINDINGS OF FACT

1. The subject signs are located 1.4 miles east of State Road 71 on I-10. These signs were inspected an October 22, 1980, by an inspector of the Department of Transportation, who observed that the signs' messages were visible from the main traveled way of I-10 and did not bear the permits required by Chapter 479, Florida Statutes. At the time of this inspection, I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The signs are located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, name plates identifying Henderson Signs as responsible for the signs were attached to the signs. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See files, Cases No. 81-104T and 81-105T.

   
   

2. The foregoing facts establish that the subject signs are signs regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the signs.

   
   

3. Gene Henderson testified concerning the erection of the poles and the attachment of sign faces to the poles. The sign poles were erected during the latter portion of 1975, and a sign face advertising "Shell Food Store" was affixed to the sign (Case No. 81-104T) on March 30, 1978. Subsequently, a second face (Case No. 81-105T) was affixed on August 1, 1978. That face was changed to one advertising "Hopkins, This Exit." The signs are owned by Henderson Signs, which erected the poles prior to the time I-10 was opened to the public.

4. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject signs were located was opened to the public on October 14, 1977.

   
   

5. The Department introduced DOT Exhibit 7, an aerial photograph of the section of I-10 along which the subject signs are located. This photograph bears the number PD 1996 and is Sheet 11 of 28 sheets taken on December 29, 1976. The photograph's legend reflects it has a scale of one inch equal to 50 feet.

   
   

6. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the signs 1.4 miles east of SR

   71 on I-10. The photograph was examined by the Department's engineer, who did not observe the presence of poles or outdoor advertising signs at the location.

   
   

7. The photograph was taken nearly one year after the date Henderson stated the poles were erected but does not reveal the presence of the poles. Even if one assumes they were erected, a sign face was not attached until March 30, 1978, several months after I-10 was opened to the public.

   
   

   CONCLUSIONS OF LAW

   
   

8. The facts reveal that Henderson Signs has its identification placard on the subject signs, erected the signs, and has a proprietary interest in the signs. The Department of Transportation notified Henderson Signs in accordance with the statutes.

   
   

9. The facts also reveal that the outdoor advertising signs in question are located on an interstate highway which is open to the public, and their advertising messages are visible from the main traveled way of that highway. At the time of the signs' inspection, they did not bear permits as required by Chapter 479, Florida Statutes, and the Department has no record of applications for permits having been filed. In summary, the signs are subject to regulation by the Department pursuant to Chapter 479, Florida Statutes, the Department properly cited the signs for alleged violations of Chapter 479, supra, and properly notified Henderson Signs of the violations. The Department has jurisdiction over the signs and authority to adjudicate these cases.

   
   

10. The factual situation presented is complex in terms of the statute's applicability to the subject signs. Clearly, at the time the signs were inspected and cited for failure to be properly permitted, the signs were subject to regulation by the Department. They meet all the criteria for regulation as outdoor advertising signs. However, Henderson Signs contends that the signs began with the installation of poles prior to the time I-10 was opened to the public and became a public highway under the statute's definition. See Section 479.01(1) and (4), Florida Statutes. The facts further show that subsequent to the date I-10 was opened to the public, advertising messages were attached to the poles. Section 479.07, Florida Statutes, refers to both outdoor advertising signs and structures, requiring permits for both.

    
    

11. The photographic evidence rebuts the testimony that the sign poles were installed prior to December 29, 1976. However, assuming that the sign poles were installed between that date and October 14, 1977, the date that portion of I-10 was opened to the public, an advertising face was not installed until March 30, 1978.

12. Henderson Signs argues that its signs are subject to the provisions of Section 479.23, Florida Statutes, which provides:

    
    

    All signs ... lawfully erected and which do not conform to the provisions of this chapter shall not be required to be removed until after the end of the fifth year after they became nonconforming.

    
    

13. Section 479.07, Florida Statutes, governing permitting, requires permits for both advertising signs and advertising structures. Clearly, this section and the chapter distinguish between advertising structures and signs. "Sign" is specifically defined by Section 479.01(I), Florida Statutes, as:

    
    

    ... any outdoor advertising sign, display, device, figure, paneling, drawing, mes- sage, placard, poster, billboard, or

    other thing ... designated, intended, or used to advertise or inform, any part of the advertising or informative contents of which is visible from any place on the main-traveled way of the interstate system. (Emphasis supplied.)

    
    

14. The definition of "sign" refers to three elements. The first element is physical. The definition contains a comprehensive listing of various physical structures associated with signs generally. The second element of the definition references the use to which the physical structures are put. The third element limits the definition geographically. The definition makes no reference to the physical location of the sign but is tied to the location from which the sign's message or informative content is visible. If the message is visible from the main traveled way of an interstate, federal-aid primary or state highway it is a "sign." The physical structure must have informative content visible from a highway to be a sign.

    
    

15. Bare poles do not have informative content. Further, until they possess informative content that can be seen from the main traveled way of an interstate, federal-aid primary or state highway, it cannot be determined whether such signs would be regulated.

    
    

16. Section 479.23, Florida Statutes, refers specifically to "signs."

    Bare poles do not meet the statutory definition of signs and cannot be treated as legally erected but nonconforming signs. However, bare poles are advertising structures as the term is used in Section 479.09, Florida Statutes, and are required to be permitted as of the date I-10 was opened.

    
    

17. Even if one assumes the poles were erected before the highway was opened to the public, the current signs are not subject to Section 479.23, Florida Statutes, and do not have permits as required by Section 479.07, Florida Statutes. The signs are illegal nonconforming signs and should be removed. Compensation for removal would not be made under the theory stated in LaPointe Outdoor Advertising v. Florida Department of Transportation, 398 So.2d 1370 (Fla. 1981).

18. In the alternative, should it be found the poles were erected prior to the highway's opening to the public, and further concluded that Section 479.23, Florida Statutes, is applicable to bare poles, the facts indicate that the signs became nonconforming when I-10 was opened on October 14, 1977. Under the provisions of Section 479.23, Florida Statutes, they are subject to be removed on October 14, 1982.

RECOMMENDATION

Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject signs within 30 days and without compensation to the signs' owner.

DONE and ORDERED this 16th day of September, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 16th day of September, 1981.

COPIES FURNISHED:

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

Charles M. Wynn, Esquire Jacob D. Varn, Secretary

310 Jackson Street Department of Transportation

Post Office Dox 793 Haydon Burns Building, MS 57

Marianna, Florida 32446 Tallahassee, Florida 32301

Docket for Case No: 81-000104

Orders for Case No: 81-000104