STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1672T

) 81-1675T

EMPIRE OUTDOOR ADVERTISING, )

)

Respondent. )

)

RECOMMENDED ORDER

These cases were heard pursuant to notice on July 16, 1982, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. These cases arose upon Notices of Violations served by the Department of Transportation on Empire Outdoor Advertising alleging permit and spacing violations for outdoor advertising structures pursuant to Section 479.07(1), Florida Statutes, and Rule 14-10.06(1)(b)3, Florida Administrative Code.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: L. Martin Reeder, Jr., Esquire

Jeffrey Bercow, Esquire

1400 Southeast Bank Building Miami, Florida 33131

ISSUES

There are three issues presented:

1. Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted;

   
   

2. Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and

   
   

3. Whether the signs in question qualify as on-premise signs not requiring a permit.

Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.

FINDINGS OF FACT

1. The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet.

   
   

2. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question

   
   

3. The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north.

   
   

4. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway.

   
   

5. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date.

   
   

6. No permits were applied for when the signs became subject to regulation in 1971.

   
   

7. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs.

8. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings and to enter this recommended order pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs pursuant to Chapter 479, Florida Statutes.

   
   

10. The signs in question are not "on-premise" signs and therefore are not subject to the exceptions of Section 479.16, Florida Statutes. The signs do not primarily advertise the premises, but rather advertise nationally recognized products available at many locations including on the premises.

    
    

11. The signs in question do not have permits; however, the record shows that they were constructed in 1965, well before they became regulated. Because the signs were erected prior to 1971, when they became subject to regulation, they are governed by Section 479.23, Florida Statutes, which provides as follows:

    
    

    All signs which were lawfully in existence or are lawfully erected and which do not conform to the provisions of this chapter shall not be required to be removed by the department until after the end of the fifth year after they have become nonconforming.

    
    

12. Because the signs have existed beyond the five-years grace period provided without permits, the issue is not whether they can be permitted, but rather under what conditions the Department can take them down. The statutes are very clear on this point. Section 479.23, supra, permits the removal of the signs anytime after the end of five years. However, the provisions of Section 479.24(1), Florida Statutes, must be complied with. Section 479.24(1) provides in pertinent part:

    
    

    Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming....

    (Emphasis supplied.)

13. Therefore, the Department may remove the subject signs at anytime upon payment to the owner of the full value of the signs.

RECOMMENDATION

The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971.

DONE and ORDERED this 21st day of September, 1982, 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 21st day of September, 1982.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire

1400 SE Bank Building Miami, Florida 33131

Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NOS. 81-1672T

81-1675T

EMPIRE OUTDOOR ADVERTISING,

Respondent.

/

FINAL ORDER

The record in these proceedings has been reviewed together with the Recommended Order and the Exceptions filed by the parties have been considered.

The Respondent's Exceptions to Recommended Orders were filed with the Department of Transportation on October 6, 1982, or 15 days after entry of the Recommended Order on September 21, 1982. Not having been filed within the 10 days provided by Rule 14-6.30(2), Florida Administrative Code, the Exceptions are rejected.

In the Exception filed on behalf of Petitioner, Department of Transportation, the objection is to the Conclusion of Law by the Hearing Officer that Section 479.24(1), Florida Statutes, is applicable, and therefore the owner must be compensated for the signs upon removal by the Department.

The Petitioner's position is that although Respondent's signs were lawfully erected, that the signs lost lawful status when the sign owner failed to apply for a permit when the signs became subject to this requirement in 1971.

Respondent's failure to comply with the law created a situation in which another outdoor advertising company lawfully obtained a permit and erected a sign at a location less than 500 feet from the site of Respondent's unlawfully maintained signs. Respondent now could not be granted a permit because the Respondent's signs now are in violation of spacing requirements of Rule 14-10.06(1)(b)(3), Florida Administrative Code.

It is Respondent's failure to comply with the law which led to the situation in which his signs cannot be permitted and are subject to removal.

The Department interprets the provision of Section 479.24(1), Florida Statutes, that "Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971--", to be intended to reimburse those sign owners who suffer loss through no fault of their own, and not to extend to payment for loss brought about by the sign owners own failure to comply with law.

The Conclusion of Law of the Hearing Officer is rejected to the extent it conflicts with this position. The Recommended Order, copy attached, is adopted with the Conclusions of Law modified to find Section 479.24(1), Florida Statutes, not applicable and the recommendation for payment to the owner not appropriate. The subject signs are to be removed without compensation to the owner.

DONE AND ORDERED this 22nd day of October, 1982.

PAUL N. PAPPAS SECRETARY

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301-8064

COPIES FURNISHED:

L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire

1400 SE Bank Building Miami, Florida 33131

Stephen F. Dean, Esquire Hearing Officer

Division of Administrative Hearings The Oakland Building

2001 Apalachee Parkway

Tallahassee, Florida 32301

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

Docket for Case No: 81-001672

Orders for Case No: 81-001672