STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOCKRIDGE SALES & MARKETING CO., INC. )

)

Petitioner, )

)

vs. ) CASE NO. 86-2945T

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 25, 1986, in Fort Pierce, Florida. Respondent filed a Proposed Recommended Order on January 8, 1987 which was considered by me in preparation of this Recommended Order. Respondent's proposed findings are adopted and are incorporated in this Recommended Order.

APPEARANCES

For Petitioner: Gary Hodge, General Manager and

Larry Slay, Sales Representative Lockridge Sales and

Marketing Company, Inc.

115 Bullard Avenue

Lake Wales, Florida 33853

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32301 ISSUE PRESENTED

The issue presented for decision herein is whether or not the proposed signs are prohibited and cannot be permitted because they are situated on a new highway outside an urban area within the purview of Section 479.11(10), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including a consideration of Respondent's Proposed Findings of Fact, I make the following relevant factual findings.

1. A new segment of the interstate highway system (I -95) was completed from Gatlin Boulevard to the Martin County line in St. Lucie County, Florida on

   February 26, 1982. That segment was barricaded, and not opened to the motoring public until April 12, 1985, since there was no interchange open to the motoring public south of the newly completed segment.

   
   

2. Lockridge Sales & Marketing Company, Inc., Petitioner, submitted applications to Respondent on July 1, 1986 for state sign permits for site locations at 500 feet, 2,000 feet, and 3,500 feet south of Gatlin Boulevard, on the east side of I-95, 15 feet from the highway right-of-way, in Port St. Lucie, St. Lucie County, Florida.

   
   

3. Petitioner's applications were reviewed by Respondent's outdoor advertising inspector, Vanna Kinchen, who recommended denial of the applications "because the prospective sign site were on a new highway outside an urban area". (Respondent's Exhibit 2).

   
   

4. Thereafter, Petitioner's applications were forwarded to Respondent's District Outdoor Administrator, who also reviewed the permit applications and denied them by memorandum of the returned applications on July 11, 1986. (Respondent's Exhibit 3).

   
   

5. Current urban area boundaries are based on 1980 U.S. Census designations with recommendations from the metropolitan planning agency and approval by the Department (Respondent) and the Federal Highway Administration. Urban area boundaries can be inside or outside the city limits depending on population density.

   
   

6. Typically, urban areas are outside the city limits, however, the current urban area designation for the Fort Pierce area, which includes St. Lucie County and Port St. Lucie, shows the area south of Gatlin Boulevard, adjacent to the east side of I-95, to be outside the subject urban area boundary.

   
   

7. Petitioner's General Manager, Gary Hodge, takes the position that since the section of I-95 here under consideration was accepted by the State as completed during 1982, it was a highway at that time. Petitioner offered no evidence to refute Respondent's position that the subject segment of the interstate highway was not opened to the motoring public prior to April 12, 1985. It is therefore found that the subject segment of I-95 was not a highway until April 12, 1985. On April 12, 1985, the subject highway was a "new highway" situated outside an urban area.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Section 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner to regulate outdoor advertising signs and issue permits for such signs is derived from Chapter 479, Florida Statutes.

    
    

11. Section 479.01, Florida Statutes (1985) provides in part:

    
    

    (6) "Highway" means any road, street or other way open or intended to be

    opened to the public for travel by motor vehicles.

    
    

    (11) "New highway" means the construction of any road, paved or unpaved, where no road previously existed or the act of paving any previously unpaved road.

    
    

12. Upon consideration of the above-referred statutes, the segment of interstate highway between Gatlin Boulevard and the Martin County line was not open or intended to be opened to the public for travel and did not become a highway within the purview of Chapter 479, Florida Statutes, until its opening on April 12, 1985.

13. Section 334.03(25), Florida Statutes (1985) provides: "Urban Area" - a geographical

    region comprising as a minimum the United State Bureau of Census boundary of an urban place with a population of 5,000 or more persons, expanded to include adjacent areas as provided for by Federal Highway Administration Regulations.

    
    

14. Additionally, Urban Area has the same meaning as it is defined in Section 334.03(25) Florida Statutes. See, Section 479.01(21), Florida Statutes (1985).

    
    

15. Competent and substantial evidence was offered herein to establish that the sites in question are located on a segment of the interstate highway system that was completed on February 16, 1982, but was not opened to the motoring public until April 12, 1985. Thus, this segment of highway was not a "new highway" until it was open for public travel and was therefore subject to the permitting authority contained in Section 479.11(10), Florida Statutes (effective October 1, 1984).

    
    

16. The sites in which Petitioner seeks permits to locate its advertising signs are located on a new highway outside an urban area within the purview of Section 479.11(10), Florida Statutes. Based thereon, the Respondent properly denied Petitioner's permit applications for the sites in question.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

The Department of Transportation enter a Final Order denying Petitioner's permit application for signs to be located on the east side of I-95, 500 feet,

2,000 feet and 3,500 feet south of Gatlin Boulevard, facing north and south in Port St. Lucie, St. Lucie County, Florida.

RECOMMENDED this 3rd day of March, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

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 3rd day of March, 1987.

COPIES FURNISHED:

Gary Hodge, General Manager and Larry Slay, Sales Representative Lockridge Sales and Marketing Company, Inc.

115 Bullard Avenue

Lake Wales, Florida 33853

Vernon L. Whittier, Jr., Esquire Department of Transportation, MS 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Thomas Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 86-002945

Orders for Case No: 86-002945