Judges: D. R. ALEXANDER
Agency: Department of Transportation
Latest Update: Aug. 07, 1985
Summary: Outdoor sign determined to be in violation of statute.
85-0818
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
v. ) CASE NO. 85-0818T
) (facing east)
SAN ANN FOOD STORES, )
)
Respondent. )
) DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
v. ) CASE NO. 85-0819T
) (facing west)
SAN ANN FOOD STORES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 11, 1985 in Bartow, Florida.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Haydon Burns Building, Mail Station
58
Tallahassee, Florida 32301-8064
For Respondent: J. Danforth Browne, Esquire
Post Office Box 1531 Tampa, Florida 33601
BACKGROUND
Case No. 85-0818T began when petitioner, Department of Transportation (DOT), issued a Notice of Violation on February 11, 1985 advising respondent, San Ann Food Stores, that its outdoor advertising sign facing east on Interstate
4 in Polk County was in violation of state laws governing the obtaining and display of permits and was within 500 feet of a restricted interchange. Case No. 85-0819T was initiated the same date and involves the same sign which faces in a westerly direction. By the proposed agency action, DOT seeks to remove the sign.
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed action. The two matters were referred by petitioner to the Division of Administrative Hearings on March 19, 1985, with a request that a hearing officer be assigned to conduct a formal hearing.
By notice of hearing dated April 12, 1985, the final hearing in both cases was scheduled for June 11, 1985 in Bartow, Florida. At the outset of the hearing, the parties agreed to consolidate the two cases and have a single Recommended Order entered disposing of both cases.
At final hearing petitioner presented the testimony of Joseph W. Sangster, district administrator of property management, and offered petitioner's exhibits 1-3. All were received in evidence. Respondent presented the testimony of Donald L. Davies, its area coordinator, and offered respondent's composite exhibit 1 which was received in evidence.
The transcript of hearing was filed on July 3, 1985.
Proposed findings of fact and conclusions of law were filed by respondent on July 15, 1985. None were filed by the agency ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
At issue herein is whether respondent's sign (facing east and west) is violative of DOT permit and spacing requirements, and if so, whether it should be removed.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Respondent, San Ann Food Stores, is the owner of an outdoor advertising sign located 5.89 miles east of the Hillsborough County Line, on the east side of Interstate 4 in Polk County. More specifically, the sign is east of the
U.S. 98 and I-4 intersection which lies just north of the City of Lakeland. The sign is two-sided, with one side facing eastward, and the other facing westward. It sits on top of two poles which are approximately sixty feet high. The parties have stipulated that the sign is visible from
I-4, although just barely, and lies within five hundred feet of that highway. They have also stipulated that no permit has ever been issued by petitioner, Department of Transportation (DOT), authorizing its use. The sign does not lie within the corporate limits of a city; however, this is immaterial to the resolution of these cases.
On an undisclosed date, a DOT inspector observed the sign while conducting an inspection of another sign and found no display of a current valid permit tag. After checking his records, he found that no permit had ever been issued authorizing its erection and use. It was also determined, without contradiction, that the sign is within five hundred feet of the interchange of I-4 and U.S. 98. Such an intersection is classified as a restricted interchange. According to Rule 14 10.06(2)(b)2. and state law, no signs are permitted within five hundred feet of such an interchange.
The sign in question was erected by Sun Oil Company around 1967 or 1968 when no permit was required. Respondent purchased the property on which the sign is located in April, 1978. It assumed that Sun Oil had obtained all necessary permits from the state to maintain and use the sign. It did not learn that Sun had failed to obtain a sign permit until the Notice of Violation was issued by DOT in February, 1985. It is willing to repay all fees owed during prior years if DOT will allow the sign to remain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
By maintaining the sign in question, respondent is charged with three statutory violations. First, it is alleged that the sign has no valid permit as required by Subsection 479.07(1), Florida Statutes (Supp. 1984). Secondly, it is charged that respondent has failed to display a current valid permit as required by Subsection 479.07(5)(a), Florida Statutes (Supp. 1984) and Rule 14- 10.04(6), Florida Administrative Code. 2/ Finally, it is alleged that respondent's sign is within five hundred feet of a restricted interchange as proscribed by Subsection 479.02(1), Florida Statutes (Supp. 1984) and Rule 14- 10.06(1)(b)2.b., Florida Administrative Code. 3/
The evidence reveals that respondent has no permit for its sign (facing east and west), and correspondingly has failed to display a current valid permit. By such omissions it has violated Subsections 479.07(1) and 479.07(5)(a). There is, however, no violation of Rule 14- 10.04(b) for that rule has no application to the factual situation herein. 4/ Next, the evidence supports a conclusion that Rule 14-10.06 has been contravened, since the sign is within five hundred feet of a restricted interchange. Since that rule implements Subsection 479.02(2), the statute has likewise been violated.
Respondent concedes it has no permit, but contends that the sign should be grandfathered in, and respondent allowed to now make application for a permit. It relies upon a agency decision entered in Tampa Outdoor Advertising, Inc. v. Department of Transportation, D0AH Case NO. 79-1421T, Final Order dated January 10, 1980, to support its theory. But that decision was entered when DOT itself extended the time for existing sign owners to apply for permits due to a change in the law and the applicant therein had done so. The time for grandfather rights has long since been extinguished, and unfortunately no remedy to obtain a permit now exists. Because the sign violates state law, and is ineligible for permitting, it must be removed.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that respondent's sign (facing east and west) be found in violation of the statutes and rules cited in the conclusion of law portion of this order, and that it be removed.
DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida.
Hearings
Hearings
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative
this 7th day of August, 1985.
ENDNOTES
1/ The agency requested an extension of time to file the same to and including July 29, 1985, but none were timely filed.
2/ The Notice of Violation incorrectly refers to Subsection 479.07(4)(a) instead of Subsection 479.07(5)(a). However, this is deemed to be a typographical error.
3/ The Notice of Violation refers to Rule 14-10.06(2)(b)2. instead of the above cited rule. Again, it is assumed that this is a typographical error. In any event, counsel raised no objection to this or the error referred to in footnote 2.
4/ Rule 14-10.04(6) relates to applications for permits made after September 30 of each year. This obviously is irrelevant to the issues herein.
COPIES FURNISHED:
Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-0058
J. Danforth Browne, Esquire
P. O. Box 1531
Tampa, Florida 33601
Docket for Case No: 85-000818
Orders for Case No: 85-000818
