STATE OF FLORIDA DIVISION OF ADMINISTRATlVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2248T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Amended Notice of Hearing furnished to the parties by Hearing Officer William B. Thomas, on August 11, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Fort Lauderdale, Florida, on September 17, 1986. The issue for consideration at the hearing was whether Respondent's sign was in violation of the statute and rule as alleged in the Notice of Violation and Notice to Show Cause filed by the Petitioner on May 14, 1984.

APPEARANCES

Petitioner: Vernon L. Whittier, Jr., Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

BACKGROUND INFORMATION

On May 14, 1984, the Petitioner, Department of Transportation, (DOT), served on Respondent a notice of an alleged violation of Section 479.02(1)(b), Florida Statutes, and Rule 14-10.06(b)2, Florida Administrative Code.

Respondent's counsel, by letter dated June 12, 1984, took exception to the allegations of violation and requested formal hearing. The file was forwarded to the Director, Division of Administrative Hearings on June 20, 1984, and Hearing Officer William B. Thomas was assigned to hear the matter. After several continuances requested by both parties, the cause was set for hearing and subsequently transferred to the undersigned.

At the hearing, Petitioner presented the testimony of Fred J. Harper, District Administrator, Outdoor Advertising, District 4; and Jeremiah W. McCarthy, Assistant District Location Surveyor for District 4; and introduced Petitioner's Exhibits 1 - 5. Respondent presented the testimony of Richard M. Salamone, former District Manager for Respondent in the area, and introduced Respondent's Exhibits A - C.

Subsequent to the hearing, the parties submitted proposed Findings of Fact, the rulings on which are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules.

   
   

2. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement.

   
   

3. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits.

   
   

4. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722.

   
   

5. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative.

   
   

6. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively.

   
   

7. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right

   of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing.

   
   

8. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

10. Chapter 479, Florida Statutes, gives the Department of Transportation the authority to regulate outdoor advertising signs and to issue permits for such signs, and, as well, to promulgate rules consistent with that purpose. At Section 479.02(1)(a), the Department is assigned the duty to administer and enforce, subject to current federal regulations, the provisions of Chapter 479 including agreements made in conjunction with Title I of the Highway Beautification Act of 1965 and Title 23, U.S.C. Included in this authority is the responsibility to regulate, inter alia, the spacing of signs.

    
    

11. In fulfilling this responsibility, the Department promulgated Rule 14- 10.02, Florida Administrative Code, and Rule 14-10.09, Florida Administrative Code, which in pari materia provides:

    
    

    Section III B. Spacing of Signs

    
    

    2. Interstate Highways

    
    

    a. 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.

    
    

    4.b. The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway and shall apply only to structures located on the same side of the road.

    
    

12. The evidence presented at this hearing clearly showed that the distance between the sign in question and the adjacent sign on the same side of the highway facing the same direction was less than 1,000 feet and, consequently, in violation of the Department's rule. This being the case, it is subject to disciplinary action by the Department under the provisions of Section 479.08, Florida Statutes, which authorizes the Department, after 30 days notice in writing, to revoke a permit which is in violation of the statute as here.

    
    

13. The evidence demonstrates that the Respondent was given notice in writing of the alleged violation and the action of the Department in intending to revoke Respondent's permit for this sign is appropriate and correct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED That:

Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed.

DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 11th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Covered in Findings of Fact 1, 3, 4 and 7.

2. Incorporated in Findings of Fact 5 and 6.

3. Incorporated in Findings of Fact 7 and 8.

4. Incorporated in Findings of Fact 2 and 7.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Incorporated in Findings of Fact 1 and 2.

2. Incorporated in Finding of Fact 3.

3. Incorporated in Finding of Fact 3.

4. Incorporated in Finding of Fact 3.

5. Incorporated in Finding of Fact 5.

6. Incorporated in Finding of Fact 1.

7. Incorporated in Finding of Fact 7.

8. Paragraph 1 - approved.

   Paragraph 2 - approved. Paragraph 3 - approved.

9. Approved.

10. Incorporated in Finding of Fact 3.

11. Incorporated in Finding of Fact 3.

12. Rejected as conjecture after the fact.

13. Rejected.

COPIES FURNISHED:

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Docket for Case No: 84-002248

Orders for Case No: 84-002248