STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1134T

)

INTERNATIONAL BILLBOARD )

ADVERTISING, )

)

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 July 13, 1983, in Fort Lauderdale, Florida. The transcript was filed on August 8, 1983, and the parties requested 21 days thereafter to submit proposed findings of fact and conclusions of law. However, nothing has been received from either party. The time limit for issuance of this Recommended Order, as set forth in Section 28-5.402, Florida Administrative Code, was waived.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

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

For Respondent: Harold A. Greene, Esquire

1578 East Commercial Boulevard Fort Lauderdale, Florida 33334

By Memorandum dated March 9, 1983, the Department of Transportation notified the Respondent that it was revoking two sign permits that had been issued previously to the Respondent because the site of the permitted signs was within 500 feet of a restricted interchange. Thus, the issue is whether the subject sign permits may be revoked by the Department for the reason set forth in its memorandum, and in conjunction therewith, whether the Department is liable for the Respondent's expenses in connection with the permit revocation.

The facts detailed below were stipulated to; thus, the Department presented only one rebuttal witness. The owner of the Respondent business and one other witness testified relative to damages. Eleven exhibits were offered and received in evidence.

FINDINGS OF FACT

1. On March 24, 1982, the Department received the Respondent's applications for two permits for signs proposed to be erected on the west side of Interstate 95 approximately 1400 feet north of the intersection of Linton

   Boulevard, outside the city limits of Delray Beach, Florida. The proposed signs were back-to-back, one facing north and one facing south.

   
   

2. Interstate 95 in Palm Beach County is part of the Federal Interstate Highway Systems, and at the times which are pertinent to this proceeding I-95 was open for use by the public.

   
   

3. On April 29, 1982, the Department approved the two sign applications which the Respondent had applied for, and issued tag numbers AG 732-12 and AG 733-12.

   
   

4. The signs for which the subject permits were issued were not erected.

   
   

5. On March 9, 1983, the Department informed the Respondent that State Sign Permits numbered 732-12 and 733-12, for the signs which are the subject of this proceeding, were being revoked for the reason that the location is within

   500 feet of a restricted interchange.

   
   

6. The site of the proposed signs is 1400 feet from the intersection of Linton Boulevard and Interstate 95, but this site is also within 500 feet of the beginning of the narrowing of the exit ramp from I-95 at its connection with Linton Boulevard, measured linearly along the road right-of-way.

   
   

7. The Department concedes that it issued the subject sign permits in error.

   
   

8. The Respondent spent or incurred expenses for poles, permits, storage of poles, delivery of poles, office costs, attorney fees, and labor, in connection with the signs proposed to be erected at the subject site, and the Respondent was not able to consummate the negotiations with Holiday Inn for rental of the proposed signs.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section III of the Agreement between the United States of America and the State of Florida, executed on January 27, 1972, as authorized by Title 23, Section 131, United States Code, and by Chapter 479, Florida Statutes requires that the State of Florida control the erection and maintenance of outdoor advertising signs. Subsection B establishes criteria for Spacing of Signs, which include the following:

    
    

    2. Interstate Highway

    * * *

    b. Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an inter- change, 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. (Emphasis added).

11. Section 14-10.06(1)(b)2.b., Florida Administrative Code, contains the same provision relative to spacing of signs along an Interstate Highway as the above-quoted provision of the Agreement between the United States and Florida. The Respondent's proposed sign site being within 500 feet of an interchange, the permits which were issued by the Department should have been denied.

    
    

12. The Respondent contends that the distance between the proposed sign site and the point of pavement widening at the exit from the main-traveled way should not have been measured linearly, but that the distance the proposed site sits back from the right-of-way should also be counted. However, the Agreement and the Rule both provide for measurement along the Interstate, and there was no evidence presented from which it can be concluded that a linear measurement is not appropriate.

    
    

13. Section 479.08, Florida Statutes, authorizes the Department to revoke any permit issued by it where the application or the permit contains knowingly false or misleading information, of 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 applied for the subject sign permits. Although the proposed sign site is 1400 feet from the intersection of I-95 with Linton Boulevard, it is also within 500 feet of the beginning of pavement widening at the exist from the main-traveled way. Thus, the Respondent would have violated the proscription of Section 14- 10.06(1)(b)2.b., Florida Administrative Code, and the Agreement between the United States and Florida, if it had erected the signs at this location.

    
    

14. 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. Thus, the Department would have been required to initiate proceedings to have the proposed signs removed if they had been erected, and it is likewise obligated to file this proceeding to revoke the subject permits which were issued in error.

    
    

15. The main thrust of the the Respondent's evidence after the stipulated facts was designed to demonstrate the damages incurred as a result of the Department's issuance and subsequent revocation of the subject permits. Nevertheless, the Respondent did not erect the signs for which the subject permits had been issued during the nearly one year period between the approval and the revocation of the permits; the negotiations with Holiday Inn did not result in the execution of a rental agreement for lease of the proposed signs; and there is not sufficient evidence to support a finding that there was anything unique about the proposed sign structures that would nave precluded using the materials elsewhere. In these circumstances, damages are not appropriate.

    
    

16. Moreover, the parties were instructed to include in their posthearing memoranda a citation to the authority of the Hearing Officer to award damages in these circumstances, and by the Respondent's failure to file proposed findings and conclusions, or otherwise cite any authority for the award of damages, it may be concluded that the issue of damages has been abandoned.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the permits issued by the Department to the Respondent for

back-to-back signs on the west side of Interstate 95, approximately 1400 feet north of the Linton Boulevard interchange in Palm Beach County, be revoked.

THIS RECOMMENDED ORDER entered this 21 day of October, 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 21st day of October, 1983.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Harold A. Greene, Esquire

1578 East Commercial Boulevard Fort Lauderdale, Florida 33334

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION

Petitioner,

vs. CASE NO. 83-1134T

INTERNATIONAL BILLBOARD ADVERTISING,

Respondent.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer. Said Order is considered correct in fact and in law, is adopted and made a part hereof, copy attached, and it is ordered that the subject permits stand revoked.

DONE AND ORDERED this 23rd day of November, 1983.

PAUL N. PAPPAS SECRETARY

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301-8064

(904) 488-9675

COPIES FURNISHED:

William B. Thomas, Esquire Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harold A. Greene, Esquire

1578 East Commercial Boulevard Fort Lauderdale, Florida 33334

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

Docket for Case No: 83-001134

Orders for Case No: 83-001134