Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Jun. 04, 1986
Summary: Sign on unregulated highway not subject to Department of Transportation regulation.
85-3289
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
3M NATIONAL ADVERTISING COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 85-3289T
) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on April 24, 1986, at Bartow, Florida.
APPEARANCES
For Petitioner: Gerald S. Livingston, Esquire
Post Office Box 2151 Orlando, Florida 32802
For Respondent: Charles G. Gardner, Esquire
Department of Transportation
Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301-8064
By letter dated August 26, 1985, 3M National Advertising Company, Petitioner, requested a hearing to contest the denial of its application by the Department of Transportation (DOT), Respondent, for a permit to erect a sign along an uncontrolled portion of SR 688, 500 feet west of U.S. 19 facing east.
At the hearing the parties stipulated that SR 688 west of its intersection of U.S. 19 is not a federal-aid primary highway and east of U.S. 19 SR 688 is a federal-aid primary highway; that U.S. 19 north of SR 688 is a federal-aid
primary highway and south of this intersection it is a federal-aid urban highway; and that the DOT does not contest the right of Petitioner to erect the sign at the proposed location facing west, to be seen by eastbound traffic.
Thereafter Petitioner called two witnesses, Respondent called one witness and six exhibits were admitted into evidence.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings are contained in Appendix A attached hereto and made a part hereof.
However, there is no real dispute regarding the operative facts in this case.
FINDINGS OF FACT
Petitioner applied for a permit to erect a sign along the north side of SR 688, 500 feet west of U.S. 19 facing east (Exhibit 1). This application was disapproved because the proposed location is within 1000 feet of an existing sign along SR 688, facing in the same direction.
With respect to outdoor advertising signs the character of SR 688 and U.S. 19 change at their intersection. North of SR 688 U.S. 19 is a federal-aid primary highway, south of SR 688 U.S. 19 is a federal-aid urban highway. For sign permitting purposes U.S. 19 is a controlled highway north of SR 688 and an uncontrolled highway south of SR 688.
Similarly, SR 688 is a federal-aid primary highway east of U.S. 19 and is uncontrolled west of U.S. 19.
A duly permitted sign, facing east, is located along the north side of SR 688 approximately 200 feet east of U.S. 19. This sign is within 1000 feet of the location for which Petitioner seeks the permit at issue in these proceedings.
The proposed sign is intended to serve westbound traffic along SR 688; however, the sign can be seen by motorists traveling on U.S. 19 while stopped in the middle of the intersection of SR 688 and U.S. 19, but the message on the sign would be unreadable to the naked eye.
Respondent contends the proposed sign is governed by the spacing requirements because the sign is located within 660 feet of the right-of-way of the federal-aid primary highway portion of U.S. 19.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. The sole issue in this case is whether the proposed sign located along a road not a part of the federal-aid primary highway system but, within 660 feet of the right-of-way of a federal-aid primary highway is subject to the spacing requirements for signs on the same side of a federal-aid primary highway facing in the same direction. Zoning, lighting, height, size, and signs specifically exempt pursuant to s. 479.16, Florida Statutes, are not in issue in these proceedings.
Section 479.111, Florida Statutes, provides in pertinent part:
Only the following signs shall be allowed within the controlled portions of the interstate highway system and the federal-aid primary highway system as set forth in
s. 479.11(1)(2):
Signs in commercial-zoned and industrial- zoned areas or commercial-unzoned and
industrial-unzoned areas within 660 feet of the nearest edge of the right-of-way, subject to the requirements set forth in the agreement between the State and the United States Department of Transportation.
Section 479.02, Florida Statutes, provides in pertinent part:
It shall be the duty of the Department to:
Regulate size, height, lighting and spacing of signs permitted in zoned and unzoned commercial areas and zoned and unzoned industrial areas on the interstate highway system and the federal-aid primary highway system.
Section 479.07(9)(a), Florida Statutes, provides in pertinent part:
A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this action unless such sign is located at least:
2. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.
This latter provision is restated in Rule 14- 10.06(b)(6) as:
No two permitted signs shall be spaced less than one thousand (1000) feet apart on the same side of a federal-aid primary highway.
To resolve the issue it is necessary to apply the facts surrounding this application with the statutes and rules above cited.
The proposed sign is located within 660 feet of a federal-aid primary highway, viz U.S. 19. The sign is not "viewable" to the traveling public from U.S. 19 but serves only traffic on SR 688. An existing permitted sign along the federal-aid primary highway portion of SR 688 is within 1000 feet of the proposed sign, but the proposed sign is not on a federal-aid primary highway.
Section 479.02, Florida Statutes, above quoted, authorizes the Department to regulate the spacing of signs on the federal-aid primary highway system. Signs not on a federal-aid primary highway system are not subject to spacing requirements.
Section 479.111, Florida Statutes, above quoted authorizes DOT to regulate signs within 660 feet of the nearest edge of the right-of-way of a federal-aid primary highway. That authority limits the Department to regulating those signs visible to the motoring public from that federal-aid primary highway. Signs not visible from
U.S. 19, for example, but which are within 660 feet of the right-of-way of U.S. 19 would not be deemed to be along a federal-aid primary highway. This conclusion is supported by Section 479.01, Florida Statutes, wherein sign is defined as:
"Sign" means any combination of structure and message in the form of an outdoor sign . . . any part of the advertising message or informa
-tive contents of which is visible from any place on the main-traveled way.
Petitioner's testimony that the message on the proposed sign could not be read from U.S. 19 was not rebutted, although this witness acknowledges that the sign itself could be seen from a vantage point on SR 688 east of
U.S. 19. If the advertising message cannot be read from
U.S. 19, the proposed structure and sign does not meet the definition of sign above quoted.
From the foregoing it is concluded that the proposed sign is not on a federal-aid primary highway and is therefore not within 1000 feet of a sign on the same side of a federal-aid primary highway facing in the same direction. It is further concluded that the proposed sign is not in view of vehicular traffic on U.S. 19, the advertising message is not readable from U.S. 19, and, therefore the proposed sign is not a "sign" within 660 feet of the right-of-way of U.S. 19. It is
RECOMMENDED that 3M National Advertising Company be issued a permit to erect a sign along SR 688, 500 feet west of U.S. 19, facing east.
ENTERED this day 4th day of June, 1986.
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 4th day of June, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3289T
Treatment accorded Petitioner's proposed findings of fact.
Included in HO #7.
Included in HO #2, #3, #4 and #6.
Treatment accorded Respondent's proposed findings of fact.
Included in HO #1 and #2.
Included in HO #1.
Included in HO preamble.
Included in HO #2.
Accepted only insofar as included in HO #5.
Included in HO #6.
COPIES FURNISHED:
Thomas Drawdy, Secretary Department of Transportation Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064
A. J. Spalla, Esquire Charles G. Gardner, Esquire Department of Transportation Haydon Burns Bldg., M.S. 58
Tallahassee, Florida 32301-8064
Gerald S. Livingston, Esquire Post Office Box 2151
Orlando, Florida 32802
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS 3M NATIONAL ADVERTISING COMPANY,
Petitioner,
vs. CASE NO. 85-3289T
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
The Record in these proceedings has been reviewed along with the Recommended Order of the Hearing Officer dated June 4, 1986.
On June 23, 1986 counsel for the Respondent filed exceptions to the Recommended Order. On June 30, 1986 the Petitioner, 3M National Advertising Company, filed a Motion to Strike Agency's Exceptions to Recommended Order. This Motion is denied because the exceptions were timely flied within 20 days of service of the Recommended Order. F.A.C. 28-5.404.
The Findings of Fact in the Recommended Order are hereby adopted. The Conclusions of Law in the Recommended Order are accepted in so far as the Hearing Officer concluded that the Department would have had jurisdiction to deny the Petitioner a permit if the sign had been "visible". The Department disagrees with the Hearing Officer's legal conclusion that the sign was not "visible". The Hearing Officer concluded that the proposed sign was not visible because the advertising message was not readable from U.S. 19. The legibility of the advertising message on a sign is irrelevant to the determination of "visibility". The legislature made that clear by providing a definition for the phrase "visible sign" in Section 479.01(23) which provides:
"Visible sign" means that the advertising message or informative contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity. (emphasis supplied)
The Hearing Officer specifically found in Finding of Fact Number 5 that "the sign can be seen by motorists traveling on U.S. 19 while stopped in the middle of the intersection of SR 688 and U.S. 19." Additionally, in the second paragraph of the Conclusions of Law the Hearing Officer noted that the Petitioner acknowledged that the "sign itself could be seen from a vantage point on SR 688 east of U.S. 19." To conclude, Section 479.01(23) does not require that the contents of the sign be readable. Here, the copy on the sign could be seen by motorists on a controlled highway and that is all that is required by the Statute.
The proposed site of the Petitioner's sign was within 660 feet of the nearest edge of the right-of-way of a federal primary aid highway. The sign was less than one thousand feet away from another permitted sign on the same side of a federal primary aid highway and was visible to motorists on a controlled highway. Therefore, the Hearing Officer's Recommendation that the Petitioner be issued a permit is rejected.
ACCORDINGLY, IT IS ORDERED that the Petitioner's application for an outdoor advertising permit to erect a sign along State Road 688, 500 feet west of U.S. 19, facing east is denied.
DONE AND ORDERED this 12th day of September, 1986.
Transportation
32301
THOMAS E. DRAWDY
Secretary Department of
Haydon Burns Building 605 Suwannee Street Tallahassee, Florida
Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules ofAppellate Procedure 9.030(b)(1)(c) and
9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department'sClerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), FloridaStatutes.
Copies furnished to:
Gerald S. Livingston, Esquire Post Office Box 2151
Orlando, Florida 32802-2151
K. N. Ayers, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Charles Gardner, Esquire Haydon Burns Building, MS 58 Tallahassee, Florida 32301
Docket for Case No: 85-003289
Orders for Case No: 85-003289
| Issue Date |
Document |
Summary |
|
Sep. 12, 1986 |
Agency Final Order
|
|
|
Jun. 04, 1986 |
Recommended Order
|
Sign on unregulated highway not subject to Department of Transportation regulation.
|
