STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WESTERN GATE SIGN COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2023T

) DEPARTMENT OF TRANSPORTATION, )

)

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 ease on January 12, 1983, in Pensacola, Florida. The transcript was filed on January 25, 1983, and the parties were allowed 10 days thereafter within which to submit proposed findings of fact and conclusions of law. The submission by the Respondent was timely filed, and has been adopted. Nothing has been received by or on behalf of the Petitioner. By stipulation, the time for issuance of this Recommended Order was extended to March 7, 1983.

APPEARANCES

For Petitioner: Clare A. Guenther, President As a witness Western Gate Sign Company for Petitioner 8604 North Old Palafox

Pensacola, Florida 32504

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

Department of Transportation

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

This case arises from a denial of the Petitioner's application for a permit for a sign already erected and in place in Pensacola, on Interstate Highway 110, five hundred feet north of SR 289-A, facing south. The issue to be resolved is whether the Petitioner's permit application for this sign should he granted.

The Petitioner's president and sole owner testified in support of the application. The Respondent presented two witnesses, its District outdoor advertising administrator and its local field inspector. Six exhibits were offered by the Department and received in evidence.

FINDINGS OF FACT

1. Clare A. Guenther is the sole owner and president of Western Gate Sign Company located at 8604 North Old Palafox in Pensacola, Florida. Western Gate had acquired Smith Advertising in February of 1977.

2. Mr. Guenther testified that he had been told repeatedly by a former DOT inspector that he did not need a permit tag on the sign in question because it had been "grandfathered in." However, this former DOT employee was not present at the hearing for testimony.

   
   

3. Mr. Guenther acknowledged that Western Gate Sign Company had received a letter from DOT dated December 18, 1978, notifying all outdoor advertising licensees and permittees that permits will be required for all signs within city or town limits, and allowing a 60 day period within which permits could be applied for. At this time, however, Mr. Guenther was under a doctor's care, and he relied totally on the former DOT inspector in most matters relating to road signs.

   
   

4. Nevertheless, no application for a sign permit was filed by Western Gate for the subject sign.

   
   

5. Mr. Guenther testified that the representatives of Smith Advertising who were familiar with the erection of the sign in question Passed away in October of 1982, and Mr. Guenther admitted that he was not present when the sign was erected. He had no documents other than a lease dated September 9, 1971 to show when the subject sign was actually erected.

   
   

6. Sometime during the years 1977 or 1978, Western Gate changed the face of the subject sign by replacing the boards. This amounted to a replacement of more than 25 percent of the value of the entire sign.

   
   

7. Emory F. Kelley, District Administrator, Outdoor Advertising, Department of Transportation, is responsible for controlling outdoor advertising in the 16 counties of the third district, including Escambia, on federal aid and primary roads and interstate highways. He makes decisions on applications for outdoor advertising permits based on his review and the recommendation of the inspector who viewed the site.

   
   

8. The sign in question is within the city limits of the City of Pensacola, and is located approximately 500 feet north of State Road 289-A on Interstate Highway 110, facing south.

   
   

9. It is a DOT policy to consider applications for sign permits on a first come, first serve basis. When the permit application was received from Western Gate Sign Company, it was transmitted to Sandi Lee, a local DOT inspector, to be checked out. Ms. Lee's inspection showed that there were existing permitted signs less than 1,000 feet from the site of the sign in question, on the same side of the road, facing the same direction.

   
   

10. Using the DOT computer inventory, the permitted sign south of the sign in question is one with permit number 8737-10 at mile 1.55. The permitted sign north of the sign in question is one with permit number AE559-10 at mile 1.75. The milepost locations indicated on the computer inventory begin at Maxwell Street on I-110 and move in a northerly direction. The distance between Maxwell Street and State Road 289-A is approximately 1.5 miles, which would place the southerly permitted sign, number 8737-10, .05 miles or approximately 264 feet north of SR 289-A, and place the northerly permitted sign .25 miles or approximately 1320 feet north of SR 289-A.

    
    

11. Permit number 8737-10 was approved on May 7, 1976, and permit number AE559-10 was approved on March 4, 1982. The application for the sign in

    question, submitted by Western Gate Sign Company, was dated June 2, 1982, and was received in the DOT district office on June 3, 1982.

    
    

12. Sandra Lee, Outdoor Advertising Inspector, Department of Transportation, performs field inspections for permit applications on federal aid, primary and interstate highways. She conducted the field inspection for the subject permit application. Using a roll-a-tape device, she measured the distance of the sign in question as approximately 150 feet from a previously permitted board. The subject sign is on the same side of the road as the permitted sign, facing in the same direction, located inside the corporate limits of Pensacola, on a section of interstate highway open to travel by the public. It is a six foot by twelve foot sign which is visible from the interstate highway and is located 20 to 25 feet from the right-of-way line.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits for such signs pursuant to Chapter 479, Florida Statutes. The Division of Administrative Hearings has authority to conduct a formal hearing and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Chapter 74-80, Laws of Florida, which amended Section 479.07, Florida Statutes, and became effective January 1, 1975, 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 advertising struc- ture, outdoor advertising sign or 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 depart- ment. The 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 hereinafter provided in subsection (4)....

15. Rule 14-10.06(1)(b)2.a. , Florida Administrative Code, provides: no two structures shall be spaced less

    than one thousand (1,000) feet apart on

    the same side of the highway facing the same direction.

    
    

16. Rule 14-10.04(1)(c), Florida Administrative Code, provides in part:

    
    

    There two applications from different advertisers. . are competing for the same site the first application received by

    the district office will be the first con- sidered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser.

17. Rule 14-10.07(2)(a), Florida Administrative Code, provides in part:

    
    

    any repair or refurbishing of a sign that exceeds 25 percent of the value of the sign in its preexisting state. . shall be con- sidered as an act of placing a new adver- tising sign and not an act of customary maintenance..

    
    

18. Applicants for the permitted signs, located north and south of the sign in question, on the same side of Interstate Highway 110, facing the same direction, and within 1,000 feet of the subject sign had applied for and received permits prior to the application of Western Gate Sign Company. Western Gate was given an opportunity to apply for a permit for the subject sign by the Department's notice dated December 18, 1978, for a sixty day period ending February 17, 1979, but failed to do so.

    
    

19. The contention of Mr. Guenther, Western Gate's president, that he had been told repeatedly by a former DOT inspector that he did not need a permit because the sign had been "grandfathered in", can only be considered as a self- serving statement, since the DOT inspector was not present to testify. Moreover, if the sign in question had acquired any nonconforming status, this was lost when the face boards were removed and replaced by other face boards constituting a change of more than 25 percent of the value of the preexisting structure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Western Gate Sign Company for an

outdoor advertising permit for a sign on Interstate Highway 110, five hundred feet north of State Road 289-A, facing south, be denied.

THIS RECOMMENDED ORDER entered this 2nd day of March, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 2nd day of March, 1983.

COPIES FURNISHED:

Clare A. Guenther, President Western Gate Sign Company 8604 North Old Palafox

Pensacola, Florida

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

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

Docket for Case No: 82-002023

Orders for Case No: 82-002023