STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELGIE PRODUCTS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2466T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case by the Division of Administrative Hearings before its its duly designated Hearing Officer, Donald R. Alexander, on August 5, 1986 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Richard J. Connolly, Sr., pro se

3000 Southwest 26th Terrace Fort Lauderdale, Florida 33312

For Respondent: Charles G. Gardner, Esquire

Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064

BACKGROUND

This matter was initiated when respondent, Department of Transportation, issued proposed agency action on May 21, 1986 denying an application of petitioner, Elgie Products, for a permit to place a 14' x 48' sign east of the intersection of Southwest 26th Terrace and Southwest 31st Street in an unincorporated area of Broward County, Florida. The basis of the denial was that the proposed location of the sign was "within 500 feet of a restricted interchange."

By letter dated May 28, 1986 petitioner disputed the agency's determination and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was forwarded to the Division of Administrative Hearings by the agency on July 9, 1986 with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated July 17, 1986 the final hearing was scheduled on August 5, 1986 in Fort Lauderdale, Florida.

At final hearing petitioner presented the testimony of Richard J. Connolly, Sr., its general partner, and Marysia H. Connolly, his wife. It also offered petitioner's exhibits 1-9. All were received in evidence. 1/ Respondent presented the testimony of Fred J. Harper, district outdoor sign administrator, and offered respondent's exhibits 1 and 2. Both were received in evidence.

The transcript of hearing was filed on August 15, 1986. Proposed findings of fact and conclusions of law were filed by respondent on September 4, 1986. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

The issue is whether petitioner's application for a state sign permit should be granted.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Elgie Products (Elgie), is a partnership whose general partner is Richard J. Connolly, Sr. The mailing address of the business is 3000 Southwest 26th Terrace, Fort Lauderdale, Florida. At the present time, Connolly and his wife are engaged in the business of raising bees, making draperies and installing plexiglass under the name of Elgie Products. They also reside at the same location.

   
   

2. Elgie's property consists of slightly more than four acres and lies one block south of State Road 84 and two blocks west of Interstate 95 in a small unincorporated pocket of Broward County, Florida. It is less than one-half mile from the Fort Lauderdale-Hollywood International Airport. The area is zoned M1 (light industrial, small manufacturing) and has only a few residential dwellings in the area including that of petitioner. A metal dump yard for wrecked automobiles lies just east of petitioner's property, a Days Inn Motel is on its north side, and DOT construction material and equipment associated with Interstate 595 lie to its south.

   
   

3. By its application, petitioner seeks to place an outdoor sign on its property. The sign will be leased to an air carrier, and the revenues derived therefrom used to supplement the Connolly's income. After reviewing the application, respondent, Department of Transportation (DOT), issued proposed agency action on May 21, 1986 denying the application on the ground the sign would be within 500 feet of a restricted interchange. The denial prompted the instant proceeding.

   
   

4. Through unknown and perhaps unfortunate circumstances, DOT decided to locate and construct Interstate 595 on an east-west alignment less than 1000 feet south of petitioner's property. In fact, the entrance ramp to I-595 will be situated less than 500 feet from the proposed site of petitioner's sign. Moreover, the sign will be visible to traffic using I-595. It is also located within 660 feet of I-595 right-of-way. Such a placement of the sign is impermissible under DOT's rules and governing statutes.

   
   

5. Petitioner contends that DOT made an exception to its rules almost seven years ago when it approved an application filed by 3-M National Advertising Company to place an outdoor advertising sign at the intersection of State Road 84 and I-95 even though the sign was less than 150 feet from I-95 and was visible to traffic using that highway. In this regard, a DOT outdoor sign administrator acknowledged that he may have been in error when he approved the application in late 1979. However, the City of Davie has subsequently annexed the area where 3-M's sign is located, and 3-M is now exempt from DOT enforcement action.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

7. Subsection 479.07(1), Florida Statutes (1985), provides as follows: a person may not, erect, use, or

   maintain, or cause to be erected, operated,

   used, or maintained, any sign on the State Highway System outside an incorporated area

   or on any portion of the interstate or federal- aid primary system without first obtaining

   a permit for the sign from the department and paying the annual fee as provided in this section.

   
   

   Subsection 479.11(1), Florida Statutes (1985), is also relevant and provides as follows:

   
   

   No sign shall be erected, used, operated, or maintained:

   (1) Within 660 feet of the nearest edge of the right-of-way of any portion of the inter- state highway system or the federal-aid primary highway system, except as provided in ss. 479.111 and 479.16.

   
   

   The agency has also promulgated rules that implement Chapter 479, Florida Statutes. As in pertinent here, Rule 14-10.06(1)(b)5., Florida Administrative Code, reads as follows:

   
   

   5. 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, or rest area.

   Said five hundred (500) feet shall be measured along the interstate from the beginning

   or ending of pavement widening at the exit from or entrance to the main-traveled way on an interstate highway.

   
   

   Although the agency, in denying the permit, has relied upon those sections of the Florida Statutes appearing in the 1984 Supplement, and superseded portions of Chapter 14-10, Florida Administrative Code, it is clear that the statutes and rules in effect at the tide of decision control. 2/ See, Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 1st DCA 1981); cf., Turro v. Department of Health and Rehabilitative Services, 458 So.2d 435 (Fla. 1st DCA 1981) (rule adopted during course of proceeding applicable and controlling on its effective date).

   
   

8. The applicable law and rules are quite clear. First, no sign may be erected adjacent to or within 500 feet of an interchange, intersection at grade, or rest area. Secondly, a sign may not be located within 660 feet of interstate right-of- way. According to Rule 14-10.06(1)(b)5., the 500 foot distance is measured "from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way on an interstate highway." Because the

   evidence reveals that the proposed sign will be located within 500 feet of the beginning of pavement widening at the entrance of the intersection, and will be within 660 feet of interstate right-of-way, the application must be denied.

   
   

9. Petitioner contends that even if the statutes and rules do not operate in its favor, it should be given a "variance" or at least the same consideration that was given 3-M National Advertising Company, which evidently was authorized to erect a sign in 1980 in the same locale. But even if the agency erroneously approved that application, it has no authority to do so in this case. 3/ Similarly, the agency has no authority to grant a variance, or otherwise waive its statutory mandate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Elgie Products be DENIED.

DONE and ORDERED this 9th day of September, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 9th day of September, 1986.

ENDNOTES

1/ Exhibit 7 was a copy of the Connolly's 1985 federal income tax return. With leave of the undersigned, petitioner was authorized after hearing to retain the original return and to furnish a copy of the same to respondent's counsel and the under- signed. A copy was never filed. The return was offered for the purpose of showing the Connollys were not a wealthy family.

2/ The agency still utilizes a standard form for denying sign applications which refers to outdated or superseded statutes and rules.

3/ Parenthetically, it is noted that National (3-M) is now embroiled in a lawsuit with Broward County because it apparently constructed a sign that exceeds the size permitted under the Broward County Code. See, National Advertising Company v. Broward County, So.2d (Fla. 4th DCA, July 30, 1986) 11 FLW 1658.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2466T

Respondent:

1. Covered in background.

2. Covered in finding of fact 3.

3. Covered in finding of fact 3.

4. Covered in finding of fact 3.

5. Covered in finding of fact 2.

COPIES FURNISHED:

Richard J. Connolly, Sr. 3000 Southwest 26th Terrace

Ft. Lauderdale, Florida 33312

Charles G. Gardner, Esquire Haydon Burns Bldg., MS-58 Tallahassee, Florida 32301-8064

Docket for Case No: 86-002466

Orders for Case No: 86-002466