STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OWEN M. YOUNG, d/b/a YOUNG SIGNS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3807T

) DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3930T

) (facing South) NATIONAL ADVERTISING COMPANY. )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3931T

) (facing North) NATIONAL ADVERTISING COMPANY. )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2249T

) (facing South) NATIONAL ADVERTISING COMPANY. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on September 18, 1984, at Bartow, Florida.

APPEARANCES

For Petitioner Young: James F. McCollum, Esquire

129 South Commerce Avenue Sebring, Florida 33870

For Department of Charles G. Gardner, Esquire Transportation: Department of Transportation

Haydon Burns Building Mail Station 58

Tallahassee, Florida 32301

By Petition dated November 28, 1983, Owen M. Young d/b/a Young Signs (Young), Petitioner in Case 83-3807T, requested a hearing to contest the denial of his application for a permit to erect an outdoor advertising sign along U.S.

27 500 feet north of Howey Road in Highlands County, Florida

By Notice of Alleged Violation dated November 14, 1983, the Department of Transportation (DOT), Petitioner, notified National Advertising Company (National), Respondent in Cases 83-3930T, 83-3931T, and 84-2249T, that its sign located along U.S. 27, 2.9 miles north of "Junction 17-Sebring" was in violation and National requested a hearing to contest this allegation. This sign has two faces, the south-facing sign is Case 83-3930T and the north-facing sign is Case 83-3931T.

By letter dated May 16, 1984, DOT, Petitioner in Case 84-2249T, notified National that the sign for which permits had earlier been issued had been removed from the authorized site and these permits were being voided. National requested a hearing to contest this determination. All these cases involve the legality of signs presently located within 100 feet of each other along U.S. 27 some 500 feet north of Howey Road; accordingly, they were consolidated for hearing.

At the commencement of the hearing the parties entered into certain stipulations and thereafter each party called one witness. Proposed findings submitted by the parties, to the extent included herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. In mid-1983 National had a properly permitted outdoor advertising structure bearing tag numbers AD-016-10 (south-facing sign) and AD-018-10 (north-facing sign) on the east side of U.S. 27 on leased property in Highlands County. In the latter part of 1983 this property was purchased by Young.

   
   

2. On September 15, 1983, Young notified National that he was the owner of the property on which this sign was located and requested National to remove the sign.

   
   

3. On September 16, 1983, Young applied for a permit to erect an outdoor advertising sign at this location.

   
   

4. Young's application was disapproved by DOT on November 7, 1983, because DOT's records showed this to be a site occupied by a permitted sign (Exhibit 3).

5. On or about October 26, 1983, after having received no response from National to his request for National to remove the sign, Young cut down the sign by sawing its supporting posts.

   
   

6. On November 28, 1983, Young requested a hearing on the denial by DOT of his application for a permit for a sign at this site.

   
   

7. On November 3, 1983, National obtained a lease (Exhibit 2) on property abutting Young's property and, on or about November 4, 1983, erected a sign on this property using the same faces from the fallen sign and attached the tags issued for its original sign.

   
   

8. National's original lease dated 10/13/80 (Exhibit 1) with John Larino provided that either party could terminate the agreement on thirty days' notice.

   
   

9. When Young purchased the property from Larino, he complied with the lease provisions regarding termination of the lease, including rebating the rent for the unused portion of the lease.

   
   

10. Young erected a sign on this property on November 6, 1983, before his application had been denied and two days after National had re-erected its sign.

    
    

11. Young obtained a county building permit on September 16, 1983, for the sign he subsequently erected.

    
    

12. National has not applied for permit for the structure erected on the land leased from Boyd but attached permit tags AD-016-10 and AD-018-10 to the sign.

    
    

13. The juxtaposition of the signs is as follows: proceeding north on U.S. 27, the first sign is owned by Young, next is the site of the former National sign, and then National's new sign. All of these locations are on the east side of U.S. 27, are less than 1,000 feet from a permitted sign to the south, are more than 500 feet from the sign, and all are within 180 feet of each other.

    
    

14. When an applicant applies for a permit for a new sign, the site is inspected by a member of the Outdoor Advertising staff in the DOT district where the sign is to be located in company with the application, or the site is staked out by the applicant and viewed by a staff member. This inspection is to ascertain that the proposed sign will be located the required minimum distance from an existing sign and the proper distance from the roadway from which the sign will primarily be observed. DOT'S policy is that any relocation of the sign from the authorized location constitutes a new sign and requires the submission of a new application and approval therefor.

    
    

15. The approved application for National's original sign was on U.S. 27

    2.9 miles north of "Junction 17-Sebring." This location is on the property now owned by Young.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. Section 479.07, Florida Statutes (1983), provides generally that no person shall construct, erect, operate, use, or maintain a sign without first obtaining a permit from the DOT. Other provisions of Chapter 479 establish

    spacing requirements, distance from interchanges, lighting, zoning, and provisions for renewal of permits. The spacing rule precludes approval of the two signs here involved which are less than 100 feet apart.

    
    

18. The DOT has long interpreted the provisions of Chapter 479 that substantial alteration of a sign constitutes "erecting" a sign and requires a permit. This interpretation was approved in White Advertising International v. Florida Department of Transportation, 364 So.2d 104 (Fla. 1st DCA 1978). White involved the enlarging of the face of a non-conforming sign which had been grandfathered-in. This enlargement of the sign was interpreted to be a construction rather than a repair or maintenance and, since the sign was in an unpermittable area, removal of the sign was required.

    
    

19. National's contention, that moving the sign less than 100 feet from its authorized position is not a material change, is without merit. Such a move could, and in some cases has, resulted a violation of the spacing requirements. In Ridgewood Signs, Inc. v. DOT, DOAH Case Nos. 83-852T and 83-853T, Petitioner obtained a permit to erect a sign on a site slightly more than 500 feet from an existing sign. The contractor who erected the sign did so on the wrong side of a driveway entering the leased property, leaving the distance to the existing sign some 472-474 feet. Removal of the new sign from that location was required.

    
    

20. Although not applicable to these proceedings because National has not applied for a permit for its rebuilt sign, Respondent's statewide policy that competing applicants for outdoor advertising sign permits shall be treated on a first-come, first-served basis was upheld in Country Corner v. DOT, DOAH Case No. 80-1315T.

    
    

21. An agency's interpretation of the statute which it administers is entitled to great weight and will not be overturned unless clearly erroneous. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984). DOT's interpretation that any movement of a sign's location constitutes a new construction for which a permit is required is a valid one and is not clearly erroneous.

    
    

22. At the time Young applied for a permit to erect his sign, National's lease was no longer valid and its permits were void, although this fact was not then reflected in DOT's records. Since Young otherwise complied with the criteria for the issuance of a permit, the requested permit should have been issued.

    
    

23. From the foregoing it is concluded that National Advertising Company's permits for the sign located on property acquired by Young became void when Young terminated National's right to occupy the property; that Young's application for a permit was timely filed and, when filed, National no longer had the right to operate a sign at this location; that the requested permit should have been issued to Young; that National erected the sign on property leased from Boyd without proper authority; and that National's permit should be revoked and the tags returned to DOT. It is

RECOMMENDED that permits be issued to Owen Young d/b/a Young Signs to erect and maintain the sign on the east side of U.S. 27 500 feet north of Howey Road in Highlands County, and that National be directed to remove its sign in the vicinity of Young's sign and return tags AD-016-10 and AD-018-10 to DOT.

DONE AND ENTERED this 26th day of October 1984 at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October 1984.

COPIES FURNISHED:

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

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802

Dallas Gray, Deputy State Right of Way Administrator

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

James F. McCollum, Esquire

129 South Commerce Avenue Sebring, Florida 33870

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

Docket for Case No: 83-003807

Orders for Case No: 83-003807