STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1741T

)

HARRY MOODY SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a public hearing in this case on July 27, 1983, in Deland, Florida. The transcript was received on August 29, 1983, and the parties requested to be permitted to submit proposed findings of fact and conclusions of law by September 30, 1983. These were filed and have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.

APPEARANCES

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

Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

For Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802

By Notice of Violation dated May 18, 1982, the Department of Transportation seeks to remove a sign owned by the Respondent at the corner of U.S. 27/301/441 and C-484 (Alternate 441) in Marion County, Florida, alleging that this sign does not have a permit in violation of Section 479.07(1), Florida Statutes, and that it violates the spacing rule, Section 14-10.06(b)a, Florida Administrative Code, and Section 479.02(1)(b), Florida Statutes.

At the hearing one witness was called by the Petitioner, one witness was called by the Respondent, and eight exhibits were received in evidence.

FINDINGS OF FACT

1. The Respondent, Harry Moody Signs, owns a sign which was erected in December of 1981 without a state permit. This sign is located 45 feet from the edge of the pavement or curb line of U.S. 27/301/441, and 32 feet from C-434 (Alternate 441) inside the corporate limits of Belleview, in Marion County, Florida.

2. U.S. 27/301/441 is a federal-aid primary highway open to traffic, and C-484 is a non-controlled road.

   
   

3. U.S. 27/301/441 is considered to be a north/ south highway; however, it runs almost east and west in Belleview where it intersects C-484, which runs generally northeast and southwest at the point of intersection.

   
   

4. The Respondent's sign is located northeast of U.S. 27/301/441, facing a westerly direction, and is visible to traffic from the southbound lane of this controlled highway. The sign in question is approximately 298 feet from a permitted sign (permit no. 947-6) which is also situated on the northeast side of U.S. 27/301/141.

   
   

5. Although the Respondent's witness testified that the sign in question is more parallel to the primary highway than perpendicular to it, and that the permitted sign is perpendicular to this highway, both signs are visible from

   U.S. 27/301/441, and the copy on the Respondent's sign can be read from a distance of 300 to 400 feet away, at least. The Petitioners witness testified that the Respondent's sign stands at an angle of approximately 45 degrees from the permitted sign, and becomes visible at a distance of 929 feet in the southbound lane of U.S. 27/301/441. Additionally, the subject sign first begins to come into view on Alternate 441 (C-484) at a distance of 470 feet. At a distance of 500 feet on Alternate 441 the sign is not visible because a building located close to the road blocks the view. The measurements of distances on Alternate 441 were made by using a calibrated hand wheel on the side of the road. The distances on U.S. 27/301/441 were measured by using a calibrated electric odometer in an automobile.

   
   

6. The Department of Transportation permits, regulates and controls signs within city limits that are adjacent to both controlled roads and non-controlled roads when the signs are visible from the main traveled way of the controlled road (federal-aid primary highway).

   
   

7. The Respondent applied for a permit after the sign had been erected, and this application was denied because the Respondent's sign was located 298 feet from a permitted sign, causing a spacing violation. The permitted sign is also owned by the Respondent, and this permitted sign is being used as an on- premise sign. However, the state permit is currently in effect, and the Respondent plans to maintain the sign as a permitted sign. The Respondent receives revenues from rental of the permitted sign, and the Respondent pays the property owner for use of the permitted sign's location.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties 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 pursuant to the provisions of Chapter 479, Florida Statutes.

   
   

9. Section 479.07, Florida Statutes, provides in part:

   
   

   ...Any person who shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated

   city or town shall apply for a permit on a form provided by the department. A

   permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4)....

10. Section 479.01(1), Florida Statutes, under Definitions, provides: 'Sign' means any outdoor sign, display,

    device, figure, painting, drawing, message, placard, poster, billboard, or other thing, whether placed individually or on a V-type, back-to-back, or double-faced display, designed, 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, federal-aid primary

    highway system or the state highway system. (Emphasis added.)

    
    

11. Section 479.02, Florida Statutes, authorizes the Department of Transporation to regulate the spacing of signs, and Rule 14-10.06(1)(b)3, Florida Administrative Code, provides that on federal-aid primary highways:

    
    

    No two structures shall be spaced less than five hundred (500) feet apart on the same side of highway facing the same direction.

    
    

12. Certain outdoor advertising is excluded from the requirements of Chapter 479 as noted in Section 479.16 (12), Florida Statutes, which provides an exception for:

    
    

    Advertisements, advertising signs

    and advertising structures within the corporate limits of cities or towns, adjacent to highways other than inter- state and federal-aid primary systems.

    
    

    The Respondent contends that the subject sign is located in side the city limits of Belleview, adjacent to a road which is not a part of the federal-aid primary or interstate system, and that it is therefore exempt from the provisions of Chapter 479, Florida Statutes. However, the sign in question, in addition to being adjacent to a non-controlled highway, is also adjacent to a federal-aid primary highway by a distance of some 45 feet, and it is visible from this controlled highway. The above exception only excludes signs adjacent to non- controlled highways that are not visible from the main traveled way of interstate and federal-aid primary highways. Therefore, this exception does not apply to the sign in question.

    
    

13. Additionally, the Respondent contends that the permitted sign is now an on-premise sign, and as such is exempt from the provisions of Chapter 479 and should not be considered in determining space. However, the Respondent currently holds a valid state permit for this sign, and is receiving revenue

    from its use, and does not plan to surrender the permit. Until this sign permit is voluntarily cancelled by the Respondent or revoked pursuant to Section 479.08, Florida Statutes, it is a valid permit and must be considered in determining space.

    
    

14. As noted in Naegel Outdoor Advertising Company of Jacksonville v. Florida Department of Transportation, (DOAH Case No. 79-2103T, Final Order dated May 19, 1980), it has been a long-standing practice of the Department to give facings to signs based on the direction from which they can be seen by travelers on the primary or interstate highway. The sign in question can be seen by persons traveling in the southbound lane of U.S. 27/301/441. It is readable from distances ranging from 300 to 400 feet, and visible from 929 feet. Southbound travelers on this portion of the primary highway are moving in an easterly direction viewing the sign in question which is facing a westerly direction. The permitted structure, located on the same side of U.S. 27/301/441, is also facing in a westerly direction and situated within 500 feet of the sign in question, and thus violates the spacing rule.

    
    

15. Signs on non-controlled (non-federal-aid) highways, which cross interstate or federal-aid primary highways and are clearly visible from the federal-aid primary highways are required to have a state sign permit pursuant to Sections 470.01(1) end 479.02, Florida Statutes. The sign in question must comply with the above requirements. However, because said sign is located on the same side of U.S. 27/301/441 as a currently permitted sign, less than 500 feet away, facing the same general direction, it cannot be permitted and, therefore, is in violation of the applicable statutes and rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the

Respondent's sign which is the subject of this proceeding to be in violation of the applicable statutes and rules, and ordering its removal.

THIS RECOMMENDED ORDER entered this the 1st day of November, 1983.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1983.

COPIES FURNISHED:

Gerald S Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

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

Docket for Case No: 82-001741

Orders for Case No: 82-001741