STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORY OUTDOOR ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3704T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED 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 January 16, 1986, in Orlando, Florida. The transcript was filed on January 30, 1986, and the parties waived their right to submit proposed findings of fact and conclusions of law.

APPEARANCES

FOR PETITIONER: Gary E. Massey, Esquire

112 West Citrus Street

Altamonte Springs, Florida 32714-2577

FOR RESPONDENT: Philip S. Bennett, Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301-8064

By Memorandum of Returned Application dated September 5, 1985, the Department of Transportation notified the Petitioner that the application for a sign permit that had been received on August 27, 1985, was denied. This application sought a permit for a sign on the north side of SR 424A, 650 feet east of Interstate 4, in Orange County, Florida. The Petitioner's application was denied because the proposed location was alleged to be within 1,500 feet of a permit issued to Peterson Outdoor Advertising at a location approximately .01 mile easterly of I-4 on the westbound side of SR 424A. Thus, the Department contends that the spacing

rule for signs visible from an interstate highway would be violated by issuance of the requested permit.

FINDINGS OF FACT

1. The Petitioner has applied for a permit, and proposes to erect an outdoor advertising sign on the north side of SR 424A, 650 feet east of I-4, in Orange County, Florida. State Road 424A is also known as Fairbanks Avenue.

   
   

2. This location is within 660 feet of Interstate 4, and the proposed sign would be visible to traffic on I-4.

   
   

3. The Department of Transportation has issued a permit to Peterson Outdoor Advertising for an outdoor advertising sign located approximately 375 feet from the Petitioner's proposed signsite on the same side of I-4, and a sign has been erected by Peterson Outdoor Advertising at this point.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 479.11(1), Florida Statutes, prohibits the erection of outdoor advertising signs within 660 feet of the right-of-way of any portion of the interstate highway system, except as allowed by Sections 479.111 and 479.16, Florida

   Statutes. These exceptions are not applicable to this proceeding.

   
   

6. Section 479.07(9)(a)1., Florida Statutes, prohibits the permitting of an outdoor advertising sign within 1,500 feet of any other permitted sign on the same side of the highway, if the location is on an interstate highway.

   
   

7. Section 479.01, Florida Statutes, under Definitions, provides:

   
   

   (14) "Sign" means any . . . outdoor sign . . . designed, intended, or used to advertise

   or inform, any part of the advertising message . . . of which is visible from any place on the main-traveled way. (Emphasis added).

8. The location where the Petitioner proposes to erect its sign is within 660 feet of the right-of-way of I-4. This site is within 1,500 feet of a sign already permitted to Peterson Outdoor Advertising on the same side of the highway, which is an interstate highway.

   
   

9. The Petitioner contends that it does not intend that traffic on I-4 will be able to see its sign for more than a short time, but it admits that traffic would be able to see the sign if it is erected. The definition of a sign as set forth above includes the sign proposed to be built by the Petitioner because it would be visible, from some place on the main-traveled way.

   
   

10. The Petitioner further contends that the Department's guidelines as set forth in Rule 14-10.05(1)(b), Florida Administrative Code, would allow its site to be permitted. However, these guidelines are applicable only to signs beyond 660 feet of the highway. Within 660 feet of the interstate these guidelines do not apply. The Respondent admitted that the proposed site is within 660 feet of I-4.

    
    

11. The approval of the Petitioner's requested permit would allow it to erect a sign which would violate the spacing rule as set forth in Section 479.07(9)(a)1., Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the application of Cory Outdoor Advertising, Inc., for a permit to erect an outdoor advertising sign on the north side of SR 424A, 650 feet east of I-4, in Orange County, Florida, be denied.

THIS RECOMMENDED ORDER entered this 28th day of February, 1986, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearing The Oakland Building

2009 Apalachee Parkway Tallahassee, Florida (904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of February, 1986.

COPIES FURNISHED:

Gary E. Massey, Esquire

112 West Citrus Street

Altamonte Springs, Florida 32714-2579

Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 85-003704

Orders for Case No: 85-003704