STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP G. MASHALANIE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1883T

) FLORIDA STATE DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Deland, Florida on October 28, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Richard A. Leight, Esquire

39 West Pine Street Orlando, Florida 32801

For Respondent: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

ISSUE

Should Petitioner be granted a permit to change an on-premise sign to advertise a business not located on his property?

FINDINGS OF FACT

1. Petitioner Philip G. Mashalanie acquired part ownership of property adjacent to Interstate Highway 4 located in the city of Orlando, Florida in December of 1980. (Transcript, page 8.) On the premises there is a large building presently leased to a church-sponsored organization and a hospital, on which there is a sign thirty-five (35) feet long and twenty-four (24) feet high. At the time of hearing this sign advertised "Miller Mechanical Air Conditioning," referring to a business which had been located on the premises prior to purchase of the property by Petitioner. (Petitioner's Exhibit 6; Transcript, pages 10-17.) The message on both sides of the two-faced sign is within 660 feet of Interstate Highway 4 and is clearly visible to the traveling public. The sign has no permit from Respondent Department of Transportation, as it had advertised a business located on the property and no permit was required.

2. Subsequent to purchase of the property and after Miller Mechanical Air Conditioning Company moved from the premises Petitioner sought a permit from Respondent Department to improve the subject sign and lease it to Amerifirst Federal Savings and Loan Association for advertising purposes. This financial association is Miami-based and is not located on the premises. (Petitioner's Exhibits 4 and 5.) By letter dated May 13, 1981 Respondent Department denied Petitioner's oral application for a permit, citing the lack of 1,000 feet of space between previously permitted signs as the reason for denial.

   
   

3. Petitioner applied to the Orlando City Council and obtained a variance permit to convert the existing sign, with the stipulation that the sign area should be not more than 428 square feet. (Petitioner's Exhibit 2.) Testimony showed that Petitioner presented to the Council a plan for beautification of the area around the Sign which would advertise the aforementioned savings and loan association. (Petitioner's Exhibit 5.)

   
   

4. The two-faced proposed sign is 236 feet east of a sign bearing permit tag #856510 with the message "Beautiful Barbados." A second sign immediately behind this sign and facing the other direction is permitted as sign #66476 and is also approximately 236 feet from the subject proposed sign.

   
   

5. Petitioner and Respondent submitted memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

7. The sign as it stood on Petitioner's property at the time of hearing had been exempt from the application of Chapter 479, Florida Statutes, by virtue of Section 479.16, Florida Statutes, Certain advertisements excepted, Subsection (1), inasmuch as the sign was on land belonging to the owner or leasee and advertised merchandise and services sold, produced, manufactured or furnished at a business located not more than 100 feet from the sign.

   
   

8. The sign as it is proposed to be used by Petitioner is not exempt under the foregoing statute and would require a permit under Section 479.07, Florida Statutes, individual device permits; fees; tags.

   
   

9. Rule 14-10.06, Florida Administrative Code, Criteria for Signs in Zoned and Unzoned Commercial and Industrial Areas Along Interstate and Federal-Aid Primary Highway Systems, and Rule 14-10.06, Agreement Relating to Size, Lighting and Spacing of Signs along Interstate and Federal-Aid Highways, prohibit Respondent Department from permitting non-exempt outdoor advertising signs which are spaced less than 1,000 feet apart on the same side of the highway facing the same direction on an interstate highway. Petitioner's proposed two-faced sign fails to meet the spacing requirements because there are other outdoor advertising signs within 1,000 feet of the proposed sign bearing permit tags.

RECOMMENDATION

Based on the testimony adduced, the evidence admitted and after consideration of the proposed recommended orders of the parties, it is recommended that the Department of Transportation enter a final order denying the Petitioner's application for a permit to be issued for the proposed sign.

DONE and ORDERED this 19th day of January, 1982, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

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 19th day of January, 1982.

COPIES FURNISHED:

Richard A. Leight, Esquire

39 West Pine Street Orlando, Florida 32801

Philip S Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

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

Docket for Case No: 81-001883

Orders for Case No: 81-001883