STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-935T

)

LAMAR ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on March 10, 1983, in Pensacola, Florida. The transcript was received on March 30, 1983, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. These were filed and have been considered. Where not adopted, they were found to be irrelevant or immaterial, or not supported by the weight of the credible evidence.

APPEARANCES

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

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: P. Michael Patterson, Esquire

905 West Moreno Street Pensacola, Florida 32501

By notice of violation issued on February 2, 1982, Lamar Advertising Company was charged with violating Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, by erecting a sign within an interchange outside the City of Pensacola, located within 500 feet from the point of widening of the interchange, on the south side of 1-10, east of U.S.90, in Escambia County, Florida. The issue to be resolved is whether this sign is in violation of the applicable statutes and rules.

FINDINGS OF FACT

1. On June 22, 1981, Lamar Advertising Company applied to the Department of Transportation for a permit to erect a sign facing east, 0.3 mile east of the intersection of Interstate 10 and U.S. 90, outside the city limits of Pensacola, in Escambia County, Florida.

   
   

2. Interstate 10 in Escambia County is part of the Federal Interstate Highway System.

   
   

3. Attached to the application was a sketch showing the proposed sign location to be in the area between the water and U.S. 90, on the south side of

   Interstate 10. At this interchange, all access roads are west of U.S. 90, north and south of I-10.

   
   

4. Because the Department did not have an inspector on duty in Escambia County, the field inspection of the proposed location was made by the Outdoor Advertising Supervisor for the Third District. He observed the area and found it to be on a downgrade with underbrush, making distance sighting difficult. Using the 0.3 mile location indicated on the application, and seeing no access ramps on the east side of U.S. 90, he considered the proposed location to be far enough from the interchange, but no measurements were actually made.

   
   

5. As a result of this inspection, the permit application was approved on June 25, 1981. Shortly thereafter, while driving through the area heading east, the supervisor noted that 0.3 mile from U.S. 90 measured with his automobile speedometer would place the sign out in the bay. On July 21, 1981, this supervisor telephoned Lamar Advertising Company and advised that the permit had been issued in error. He met with the company on the following day, and after this meeting he sent a letter to Lamar Advertising Company confirming that the permit had been issued in error, and requesting its return.

   
   

6. Lamar Advertising Company did not return the permit tag, and subsequently erected the sign facing east with the advertising copy not visible from the access ramp. The subject sign was erected in the area where the supervisor thought the sign would be, and at the approximate location shown on the sketch submitted with the application indicating a location 0.3 mile east of the nearest intersection.

   
   

7. During a sign inventory conducted by the Department's inspector for Escambia County on August 28, 1981, the inspector observed that the undergrowth and trees had been cleared from the site, but that no sign had yet been erected. The manager of the Pensacola office of Lamar Advertising Company testified that the sign was erected during the last week in August of 1981, and that it was completely in place on the first day of September. The Department's supervisor observed that the sign had been recently erected sometime between the latter part of August and the first part of September. At a later date, this inspector was asked by the supervisor to check the location for the purpose of issuing a violation notice.

   
   

8. On January 18, 1982, the inspector visited the site and made measurements. The sign is located approximately 95 feet from the limited access fence on I-10 and approximately 360 feet from the Exxon station on U.S. 90, and is 35 to 60 feet from the point of widening of the interchange, instead of 0.3 mile east of the interchange as the application stated. The advertising copy on the sign can be read by traffic traveling west on I-10. As a result of the measurements taken on this visit, notice of violation which is the subject of this proceeding was issued.

   
   

9. The local manager of Lamar Advertising Company testified that materials for the sign in question had been purchased about the middle of July, and an advertising contract with Holiday Inn was executed on July 13, 1981, for the subject location. This contract has a substitute provision in paragraph 6 of the Standard Conditions, which states:

   
   

   . . .in the event Lamar is unable to deliver any portion of the service required in this contract. . .this contract shall not terminate. Credit shall be allowed to Advertiser at the

   standard rates of Lamar for such space or service for the period during which such space or service shall not be furnished. . .Lamar may discharge this credit, at its option, by furnishing advertising service on substitute

   spaces to be reasonably approved by Advertiser. . .

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of Transportation has the authority to regulate outdoor advertising signs and issue permits pursuant to the provisions of Chapter 479, Florida Statutes.

    
    

11. Section 14-10.06(1)(b)2.b., Florida Administrative Code, provides in part:

    
    

    b. Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or safety rest area. Said five hundred (500) feet to be measured along the Interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.

    
    

12. Section 479.08, Florida Statutes, authorizes the Department to revoke any permit issued by it where the application for the permit contains knowingly false or misleading information, or if the permittee has violated any of the provisions of Chapter 479, Florida Statutes. There is no evidence that the Respondent knowingly supplied false information to the Department when it incorrectly stated in its application that the subject sign would be erected 0.3 mile east of the intersection. However, the Respondent is a company whose business is outdoor advertising signs. It should have known that a sign must be erected at the permitted location. Thus, its erection of the subject sign at a location 35 to 60 feet from the interchange instead of 0.3 mile from it is a violation of Chapter 479, Florida Statutes, and subjects the permit to revocation.

    
    

13. Pursuant to Section 479.17, Florida Statutes, any advertising sign which is erected, used or maintained in violation of Chapter 479 is a public and private nuisance which is required to be abated by the Department.

    
    

14. Within 30 days from the time the sign location in question was permitted by the Department, it was determined that the permit should have not been issued because the location was within 500 feet of the widening of the access ramp to the Interstate Highway. Prior to notification of this error by the Department, Lamar Advertising Company had purchased materials, entered into a contract with Holiday Inn, and cleared the site where the sign was to be erected. The record does not reflect whether the materials purchased for the subject sign could have been used at other locations, but there is no evidence to show that there is anything unique about the sign structure which would have precluded using these materials elsewhere. The contract between Lamar Advertising Company and Holiday Inn states that if Lamar is unable to provide the service contracted for, the contract is not terminated, but credit is given for the remaining period of the contract, and Lamar at its option may provide

    advertising at another location approved by Holiday Inn. This provision appears to be designed to cover situations similar to those in this case, where Lamar would be unable to provide service at the location specified in the contract.

    
    

15. When the Department notified Lamar Advertising Company that the subject permit had been issued in error, the sign had not yet been erected. Lamar could have exercised its right under the contract with Holiday Inn to advise Holiday Inn that a sign could not be erected at the site contracted for because of spacing restrictions and an arrangement could have been made to provide advertising at another location. Lamar could have in this manner minimized its expenditures at the location in question, but did not do so.

    
    

16. Although the advertising face of the subject sign is not visible from the interchange access ramps to Interstate 10 because both ramps are located on the west side of U.S. 90, Chapter 479, Florida Statutes, provides no exception for this. The copy on the subject sign can be read by traffic traveling west on I-10; this sign is within 500 feet of the point of widening of the interchange; thus, it violates Section 14-10.06(1)(b)2.b., Florida Administrative Code, and is subject to removal.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the sign owned by Lamar Advertising Company facing east on

the south side of Interstate 10, east of U.S. 90, in Escambia County, Florida, be removed.

DONE and RECOMMENDED this 26th day of May, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Haydon Burns Bldg., M.S.58 Tallahassee, Florida 32301-8064

P. Michael Patterson, Esquire 905 West Moreno Street Pensacola, Florida 32501

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

Docket for Case No: 82-000935

Orders for Case No: 82-000935