STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1983T

) DAVID GROVER (SR A1A, 0.14 mile )

south of SR 518, South Face), )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1984T

) DAVID GROVER (SR A1A, 0.14 mile )

south of SR 518, North Face), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Deland, Florida on October 27, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Peirce Wood, Esquire

542 Hammock Road Melbourne, Florida 32901

ISSUE

Whether the subject sign of Respondent is a lawful sign for which Respondent should be compensated upon its removal.

PRELIMINARY STATEMENT

Respondent, David Grover, bought a tract of land from his father on which was located a billboard. Petitioner, Department of Transportation, notified Respondent to show cause why the sign should not be removed for alleged violation of the statutes and rules requiring a permit for each side of the

billboard, and for alleged violation of the Statutes and rules which require a space of 500 feet between signs on commercial property. Respondent requested an administrative hearing.

At the hearing Petitioner, through Counsel, presented two (2) witnesses; and Respondent, through Counsel presented two (2) witnesses. Petitioner offered two (2) exhibits which were entered without objection, and Respondent offered three (3) exhibits which were entered without objection.

The subject of the controversy herein involves one V-shaped sign with the Same message on both its north face and its south face. A violation notice was issued for each face and filed with the Division of Administrative Hearings as separate cases, Nos. 81-1983T and 81-1984T. These cases were consolidated for purposes of trial and transcription and are consolidated in the writing of this order.

FINDINGS OF FACT

1. Respondent, David Grover, owns a V-shaped billboard with a north face and a south face located outside any incorporated city or town 0.14 mile south of State Road 518 on Highway A1A, a federal-aid primary highway, advertising "Sun Harbor Nursery" on both faces of the sign. The nursery advertised on the billboard is a business owned by Respondent located approximately one half mile from the subject sign. (Transcript, page 53.) A violation notice dated July 15, 1981 was Served on Respondent alleging that the subject sign is in violation of Section 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, because it was erected without a permit; and that it is also in violation of Section 479.02, Florida Statutes, and Rule 14-10.06(1)(b), Florida Administrative Code, because it is located within 500 feet of a permitted sign.

   
   

2. Respondent's father, David Grover, Sr., erected the V-shaped billboard in 1961 without a permit and maintained it until he sold the land on which it is located to his son in 1974. (Transcript, pages 31-35.) No application for a permit from the Petitioner Department was made during the time David Grover, Sr. owned the land and sign or since Respondent owned the property until 1981, when an application was denied because permits had previously been issued for other nearby signs. (Transcript, pages 43 and 46.) There is a distance of approximately 118 feet between the south face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. There is also a distance of approximately 118 feet between the north face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. (Petitioner's Exhibit 1; Transcript, pages 14, 15 and 41.)

   
   

3. Subsequent to the hearing Respondent admitted that his sign is in violation of the statutes and rules requiring a space of 500 feet from a permitted sign but contends the sign is a lawful sign having been grandfathered by the passage of time since its erection in 1961 and therefore he is entitled to compensation upon its removal.

   
   

4. The parties submitted proposed findings of fact, 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

   
   

5. The Division of Administrative Hearings has jurisdiction over this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

6. Section 479.02(1)(b), Florida Statutes, Enforcement of provisions by department. and Rule 14-10.06(1)(b), Florida Administrative Code, Criteria for Signs in Zoned and Unzoned Commercial and Industrial Areas Along Interstate and Federal-Aid Primary Highway Systems, prohibit the location of signs spaced less than 500 feet apart on the same side of a highway facing the same direction outside incorporated towns and cities on interstate and federal-aid primary highways.

   
   

7. Respondent admits and the evidence shows that the sign structure is on a federal-aid primary highway, and that there is less than 500 feet between the subject sign and other permitted signs. Thus, Respondent is in violation of the foregoing statute and rule.

   
   

8. Section 479.07, Florida Statutes, Individual device permits; fees; tags.-- prohibits the construction of an outdoor advertising structure, sign or advertisement outside an incorporated town or city without first obtaining a permit therefor from the State Department of Transportation and paying an annual fee. Permits have been required continuously since 1941. Cf. historical note following Section 479.07, Florida Statutes Annotated. Petitioner Department presented evidence through the testimony of witnesses that no permit was affixed to either face of the subject sign, and Respondent admitted that no permit from the State had been secured before the structure was built or affixed thereafter and no application had been made for a permit until 1981, long after other signs within 500 feet had been permitted by the agency. Thus, Respondent Is in violation of the foregoing statute. Cf. "When the Department presented evidence showing that no permit tags were affixed to the signs, a statutory presumption arose that the signs were illegally erected, which remained until the sign owners presented testimony to rebut the presumption. None was presented. The Department established its case. Henderson Sign Service v. Department of Transportation, 390 So.2d 159 (Fla. App. 1980).

   
   

9. Section 479.24(1), Florida Statutes, Compensation for removal of signs; eminent domain; exceptions.-- provides in pertinent part:

   
   

   1. 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.

Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. . .

Petitioner's sign was not "lawfully in existence" on or after December 8, 1971 and therefore no compensation is due Petitioner pursuant to the foregoing statute. Cf. LaPointe Outdoor Advertising v. Florida Department of Transportation, 398 So.2d 1370 (Fla. 1981).

RECOMMENDATION

Based upon the testimony adduced, the evidence admitted and after consideration of the findings of fact and conclusions of law submitted by the parties, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within thirty

(30) days from the date hereof and without compensation to the sign owner.

DONE and ORDERED this 20th 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 20th day of January, 1982.

COPIES FURNISHED:

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

Peirce Wood, Esquire

542 Hammock Road Melbourne, Florida 32901

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

Docket for Case No: 81-001983

Orders for Case No: 81-001983