STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0483T

) WHITECO METRO COMMUNICATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on September 9, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450

For Respondent: Scott L. Knox, Esquire

1017 Bartlett Road

Holiday, Florida 33590

By Notice of Alleged Violation dated December 30, 1986, the Department of Transportation (DOT), Petitioner, seeks removal of a sign currently owned by Whiteco Metro Communications (Whiteco), Respondent, along U.S. 19, 7.83 miles north of Pinellas-Pasco County line. As grounds therefor it is alleged the sign has no permit and is within 1,000 feet of an existing sign on the same side of

1. 19 facing in the same direction. At the hearing Petitioner called one witness, Respondent called one witness, and six exhibits were offered into evidence. Ruling on the admissibility of Exhibit 6 was reserved at the hearing. All six exhibits are now admitted into evidence.

   
   

   There is no real dispute regarding the facts here involved. Proposed findings were not timely submitted by the parties.

   
   

   FINDINGS OF FACT

   
   

   1. Whiteco is the successor in interest to a sign along U.S. 19, 7.83 miles north of the Pinellas-Pasco County line.

      
      

   2. Deeb Construction Co. obtained a permit on February 26, 1980, to erect a sign at the location in Finding of Fact #1 facing both north and south (Exhibit 2). This sign was erected and a permit for each face was issued.

   3. In January, 1981, Ridgewood Signs, on behalf of Deeb Construction, submitted Permit Affidavit Form (Exhibit 3) to replace the existing 8' x 16' sign with a 12' x 40' sign and on February 11, 1981, the DOT Sign Inspector prepared a Certificate of Sign Removal (Exhibit 4). Permit Tags AB 061 and AB 062 issued for the original sign were cancelled.

      
      

   4. On February 9, 1981, Deeb's application to erect a sign at this same location facing north only was approved (Exhibit 1). Tag Number AD 484-10 was issued for this north-facing sign. No application was submitted for a south- facing sign at this location and no tag for such a sign was issued. 5. Despite the lack of a permit for a south-facing sign at this location, a south face was placed on the structure and the notice of alleged violation (Exhibit 5) was issued for this south facing sign.

      
      

   5. This sign is 797 feet from a permitted sign along U.S. 19 on the same side of the highway facing south.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   7. Standard procedure at the time this structure was rebuilt, which is also standard procedure today, is for the owner of the sign to submit a permit affidavit (as was done here with Exhibit 3), and an application for outdoor advertising sign permit (as here done with Exhibit 1). An outdoor advertising sign inspector inspects the site and prepares a certificate of sign removal for the file. This was Exhibit 4 in these proceedings.

      
      

   8. It is apparent that the applicant for the new and enlarged sign neglected to include both faces of the sign in the application. Accordingly, a permit for only a north-facing sign was issued. Subsequent to the erection of this enlarged sign, the spacing requirements for signs along federal-aid primary highways was changed from 500 feet to 1,000 feet. Accordingly, a permit for a south-facing sign at this location can not now be issued.

      
      

   9. From the foregoing, it is concluded that the south- facing sign on Whiteco Metro Communications sign, 7.83 miles north of the Pinellas-Pasco County line, has never been permitted, and is within 1000 feet of a permitted south- facing sign along the same side of U.S. 19. It is

RECOMMENDED that Final Order be entered directing Whiteco Metro Communications to remove the south-facing sign along U.S. 19, 7.83 miles north of the Pinellas-Pasco County line.

ENTERED this 8th day of October, 1987, in Tallahassee, Florida.

K.N. AYERS 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 8th day of October, 1987.

COPIES FURNISHED:

Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0750

Scott L. Knox, Esquire 1017 Bartlett Road

Holiday, Florida 33590

Kaye N. Henderson, P.E. Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 87-0483T

WHITECO METRO COMMUNICATIONS,

Respondent.

/

FINAL ORDER

The record in this proceeding and the Recommended 0rder entered by the Hearing officer have been reviewed. Respondent, Whiteco Metrocom, Inc., has filed exceptions to the Recommended order which are considered and addressed below.

The Findings of Fact set forth in the Recommended order are considered correct and are incorporated herein as part of this Final order with the following exception. In Finding of Fact number 4 the Hearing officer referred

to Tag Number AD 484-10. This is apparently a typographical error since Exhibit

1 indicates that the tag number actually is AD 485-10.

The Hearing Officer's Conclusions of Law are considered correct and are incorporated herein as part of this Final Order.

Respondent first takes exception to the Hearing Officer's statement that proposed findings were not timely filed. This exception is rejected because the record before the Hearing Officer at the time of his determination clearly supports the finding and cannot therefore be set aside by the Department. See Tuvesan v. Florida Governor's Council, 495 So.2d 790 (Fla. 1st DCA 1986); Heifetz v. Debt. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Section 120.57(1)(b)(9), Fla. Stat. 1/

Respondent next takes exception to the Hearing Officer's Finding of Fact Number 3 claiming that there was no evidence that Ridgewood Signs was acting on behalf of Deeb Construction Company; that Exhibit 3 clearly indicates that the sign enlargement sought was for two sign faces, not a single sign face; and that there is no evidence that Deeb Construction cancelled permit No. A8062-4 nor that FOOT has any procedure set forth in its rules and regulations for determining a method of cancelling a tag. Initially, Respondent is mistaken in its assertion that there is no evidence that Ridgewood Signs was acting on behalf of Deeb Construction Company. Petitioner's Exhibit 1, a permit application dated January 3, 1981, indicated that Ridgewood would be constructing the enlarged north-facing sign for Deeb. Regarding Respondent's remaining contentions, Linda K. Brown's testimony indicates that Exhibit 3 is treated as a request to cancel permits noted thereon (Transcript, pp. 10, 11, 15, 19, 20) and that given the normal procedures for sign enlargement the subject permits would have to have been cancelled (Transcript, pp. 15, 19 22, 23, 25, 26). Since there is adequate record support for Finding of Fact number 3, Tuveson v. Florida Governor's Counsel, supra; Heifetz v. Dept. of Business Regulation, supra, Respondent's exception thereto is rejected.

Respondent takes exception to Finding of Fact number 4 claiming that Exhibit 1 does not contain a signature; that there is no evidence that Deeb Construction Company was applying solely for replacement of one face or that they ever filed a Notice of Cancellation of the Southbound face; and that Exhibit 1 does not indicate that Deeb had authorized the Department to cancel Tag No. AB062-4. Concerning Respondent's first contention, the record reflects that Respondent, failed to raise an objection to the admission into evidence of Exhibit 1 on the ground raised here, or for that matter, any other ground (Transcript, p. 8). Respondent's second contention is meritless. Exhibit 1 clearly indicates that it is an application for one sign facing north and there is no record evidence that filing a document styled "Notice of Cancellation" is necessary to effect cancellation of a permit. Finally, while Exhibit 1 does not indicate that Deeb Construction Company had authorized cancellation of Tag no.

A8062-4, Linda K. Brown's testimony shows that function was performed by Exhibit

3. (Transcript, pp. 10, 11, 15, 19, 20) Consequently, Respondent's exception to Finding of Fact Number 4 is rejected.

Respondent takes exception to Finding of Fact Number 5 asserting that the finding constitutes a conclusion of law to the extent that it assumes there was no permit for the south-facing sign in question and that the evidence shows that Respondent has applied for a permit on that sign facing. Irrespective of whether it is labeled a finding of fact or a conclusion of law, there is ample record support for the Hearing Officer's determination that there was no permit for a south-facing sign. (See Transcript, pp. 8, 10, 11, 15,19, 20, 22, 23, 24,

25, 26) Moreover, the fact that Respondent may have filed an application for a permit during September, 1987, (Exhibit 6) is entirely irrelevant in relation to the notice of the alleged violation which was issued on December 16, 1986. (Exhibit 5) Respondent's exception to Finding of Fact Number 5 is therefore rejected.

Respondent takes exception to Finding of Fact Number 6 on the basis of its interpretation of Section 479.07(9)(a), Fla. Stat., dealing with sign spacing. Regardless of whether Respondent is right or wrong in its statutory interpretation, the record clearly reflects that Linda K. Brown, testified that the south-facing sign in question was 797 feet from an existing permitted sign. (Transcript, p. 13) Accordingly, the Department cannot overturn this finding of fact and Respondent's exception thereto must be rejected. Tuveson v. Florida Governor's Council, supra; Heifetz v. Dept. of Business Regulation, supra.

Next, Respondent takes exception to the Hearing Officer's Conclusions of Law. First, he claims that the conclusion that the applicant neglected to include both faces of the sign in the application is irrelevant and immaterial since Respondent has applied for a permit for an enlarged sign and since the old permit was never cancelled by Deeb Construction Company or Respondent or revoked by the Department. As noted above, Respondent's filing of a Permit application in September of 1987 is wholly irrelevant to this proceeding. Additionally, the remainder of Respondent's claim is nothing more than reargument of its factual exceptions which were rejected above and is therefore meritless.

Secondly, Respondent claims that the Hearing Officer's conclusion that a permit for a south-facing sign cannot now be issued is erroneous because the spacing requirements have no bearing upon the South-facing sign in question under the language of Section 479.07(9)(a), Fla. Stat. This section provides in pertinent part:

The minimum spacing provided in this paragraph does not preclude the Permitting of V-type, back-to-back, side-to-side, stacked or double-faced signs at the permitted sign site.

Evidently Respondent reads this section as waiving the spacing requirements for the south-facing sign since the north-facing sign satisfies the spacing requirements and is permitted. The Department rejects such an interpretation because it would render mandatory the established spacing requirements and be inconsistent with the spirit, if not the letter, of Chapter 479. It is the Department's position that the above-quoted language provides for the construction of the various structures described therein so long as the sign faces satisfy the spacing requirements. Were this not the case, Respondent's north-facing sign could not be permitted because it is only 797 feet from another structure even though the sign on that structure does not face in the same direction. Clearly then Respondent's claim on this point is wholly uncompelling.

Respondent last claims that the Hearing Officer's conclusion that the south-facing sign at issue has never been permitted is erroneous because permit AB082-4 had been issued. Respondent's claim is obviously based upon a

misreading of the Hearing Officer's conclusion. It is readily apparent that the Hearing Officer concluded that Respondent never acquired a permit for the sign, not that the sign had never been permitted. Moreover, to the extent that Respondent is heard to re-argue the continued existence of permit A8062-4, that

line of argument has not acquired renewed vitality since it was rejected above. Consequently, Respondent's exceptions to the Hearing Officer's Conclusions of Law are rejected in their entirety.

Finally, Respondent takes exception to the Hearing Officer's recommendation on the basis of Respondent's perceived errors in the Findings of Fact and Conclusions of Law. Inasmuch as these matters have been fully addressed above the Department will not revisit them here and, for the reasons stated above, the Department rejects Respondent's exception to the Hearing officer's recommendation. Accordingly, it is

ORDERED that the south-facing sign of Respondent, Whiteco Metro Communications located along u.s. Highway 19 at a point 7.83 miles north of the Pinellas-Pasco County line is ILLEGAL and shall be removed within 20 days of the date of this order. If Respondent fails to remove the sign within 20 days of the date of this order, the Department shall immediately remove the sign and assess the cost of removal against Respondent.

DONE AND ORDERED this 30th day of December, 1987, at Tallahassee, Florida.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

ENDNOTE

1/ Since Respondent's exceptions to the Recommended Order were timely filed, its motion for an order tolling time to file exceptions is moot.

Copies furnished to:

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

SCOTT L. KNOX, ESQUIRE

1017 Bariett Road

Holiday, Florida 33590

VERNON L. WHITTIER, ESQUIRE

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be Pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate 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, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk 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), Florida Statutes.

Docket for Case No: 87-000483

Orders for Case No: 87-000483