STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PENSACOLA OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4173T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENCED 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 June 7, 1985, in Pensacola, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly.

APPEARANCES

FOR PETITIONER: Gerald Holley, Esquire

Post Office Box 268 Chipley, Florida 32428

FOR RESPONDENT: Vernon L. Whitter, Jr., Esquire

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

By application dated March 2, 1984, the Petitioner applied for a permit to place an outdoor advertising sign on the west side of U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida. The Department denied the application because this location is within 500 feet of a restricted interchange, and the sign would be visible from the interstate and the interchange ramps. The issue to be resolved is whether the proposed site is permissible under the applicable statutes and rules.

FINDINGS OF FACT

1. On March 2, 1984, the Petitioner, Pensacola Outdoor Advertising, applied for a permit to locate an outdoor advertising sign on the west side of

   U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida.

   
   

2. This location is outside the city limits of Pensacola.

   
   

3. I-10 and U.S. 29 intersect in the area where the Petitioner proposes to locate its sign. This site is 26.5 feet from the limited access fence or right

   of way boundary in the northwest quadrant of the interchange area where I-10 and

   U.S. 29 intersect. The south side of the structure for which the permit is sought is directly adjacent to this limited access fence, which is next to an off-ramp from I-10 to U.S. 29.

   
   

4. The proposed sign site is visible to traffic on the main-traveled way of I-10 and to traffic on the interchange ramps.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

   
   

6. Section 479.02, Florida Statutes, provides in part:

   
   

   1. It shall be the function and duty of the department, subject to current federal regu- lations to:

      (b) Regulate size, lighting, and spacing of signs permitted in zoned and unzoned commercial and zoned and unzoned industrial areas.

      
      

7. Section 14-10.06(1)(b), Florida Administrative Code, provides in part:

   
   

   (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, of safety rest area. . . .

   
   

8. Even though the location where the Petitioner applied for a permit is on U.S. 29, the site is within 500 feet of the interstate highway interchange area at the intersection of I-10 and U.S. 29. This location is outside the corporate limits of any city or town, in Escambia County, and the proposed sign is visible to traffic on the main-traveled way of I-10. Thus, the proposed site is not permissible, and the Petitioner's application cannot be approved.

   
   

9. In its proposed findings, the Petitioner contends that it came to he hearing prepared to present evidence to show that the proposed site is more visible to traffic on U.S. 29 than to traffic on I-10, and that the copy on the sign is intended to be viewed from U.S. 29. When the Petitioner's evidence had shown that the site was within 500 feet from the I-10-U.S. 29 interchange, outside the city limits of Pensacola, and visible to traffic on I-10, the Hearing Officer declined to allow further proof relative to how much more visible the site is to traffic on U.S. 29 than to traffic on I-10. The Petitioner was allowed to proffer whatever additional evidence it wished on this point to preserve its rights on review.

   
   

10. The Petitioner insists that it had a right to present its proffer by

    sworn testimony of witnesses, instead of by verbal statement of counsel. The Hearing Officer declined to permit the proffer in the manner requested, and required counsel to make the proffer by oral statement of what proof would have presented if the testimony had been allowed. Thereupon, counsel made the Petitioner's proffer under the restrictions imposed by the Hearing Officer.

    
    

11. Section 90.104(1)(b), Florida Statutes, requires counsel to make an offer of proof in order to preserve the point for appeal, when an objection is sustained or proof is otherwise not permitted. This offer of proof is a proffer of how the witness would have responded if allowed to answer. The method of making the offer of proof is within the court's discretion. The offer may be made by including in the record a statement by counsel to the court, which is made on the record. 1/

    
    

12. Regardless of what evidence the Petitioner wished to present, or would have presented by proffer, when the testimony disclosed that the proposed site is within 500 feet of a restricted interchange, and visible to traffic on the interstate, the evidence that is relevant and material to the issue in this proceeding supported a finding that the site proposed by the Petitioner is not a permissible site. Since the site cannot be permitted under the evidence because of the proscription of Section 14-10.06(1)(b) 2 b., Florida Administrative Code, further presentation of testimony would have been in violation of Section 120.58(1)(a), Florida Statutes, which requires the exclusions of irrelevant or immaterial evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Pensacola Outdoor Advertising for a

permit to locate an outdoor advertising sign on U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida, be denied.

THIS RECOMMENDED ORDER ENTERED this 24th day of July, 1985, in Tallahassee, Leon County, 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 24th day of July, 1985.

ENDNOTE

1/ See generally, Ehrhardt, Florida Evidence, Section 104.2, for a discussion of the subject and the various approved ways of making a proffer of proof.

COPIES FURNISHED:

Gerald Holley, Esquire

P. O. Box 28

Chipley, Florida 32428

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

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

Docket for Case No: 84-004173

Orders for Case No: 84-004173