Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Jul. 23, 1987
Summary: Held sign not an on-premise sign.
87-1629STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1629T
)
McDONALD'S CORPORATION, )
)
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 June 23, 1987, at St. Petersburg, Florida.
APPEARANCES
For Petitioner: Vernon L. Whittier, Jr., Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064
For Respondent: Grant D. Peterson, Esquire
4905 W. Laurel Street, Suite 300
Tampa, Florida 33607
By Notice of Alleged Violation dated March 19, 1987, the Department of Transportation (DOT), Petitioner, seeks removal of a sign owned by McDonald's Corporation, Respondent, in the vicinity of a McDonald's restaurant at the intersection of I-75 and CR-54 in Pasco County. As grounds therefor it is alleged the sign is unpermitted and is located within the interchange between I-
75 and CR-54.
At the hearing Petitioner called two witnesses, Respondent called one witness, and twelve exhibits were admitted into evidence.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings are contained in the Appendix attached hereto and made a part hereof.
FINDINGS OF FACT
A McDonald's sign visible to automobile traffic on the I-75 is located
.08 miles north of CR-54 along the I-75, 934 feet into the interchange between the I-75 and CR-54 in Pasco County, Florida.
The I-75 at this location is part of the federal interstate highway system and is outside an incorporated town or city.
The sign has no permit tags attached and no permit tags have ever been approved for the site.
The property on which this sign is erected is approximately 77' by 52' with the southeast corner cut off owned by McDonald's Corporation. The site is connected to the restaurant site by a 15 foot strip of land which intersects a proposed road 275 feet north of the restaurant site. The sign is 1122 feet from the restaurant as measured along the paved surface between the sign and restaurant. Between this sign and the restaurant along CR-54 is a Standard station, an Amoco station, a Circle K shop and a Days Inn. The closest businesses to the sign are Abe Chevron station and the Days Inn Motel.
Respondent presented proposed plans evidencing an intent to construct a McDonald's playland on the property on which the sign is located, presumably as an integral part of the restaurant. However, at the time of the hearing the property served only as a site for the sign.
McDonald's playlands have been developed as a selling tool for families traveling over interstate highways and are generally located adjacent to the restaurant so children occupying the playland can be monitored by the parents from inside the restaurant. Respondent's witnesses were aware of no McDonald's playland located other than immediately adjacent to the restaurant building.
Construction of the playland at the site of the existing sign has
never-been started due to construction, drainage and sewage disposal problems at the restaurant site.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 479.07, Florida Statutes, prohibits the erection of signs on the interstate highway system without a permit; Section 479.105 provides for the removal of signs which require permits and do not have same; and Section 479.02 authorizes the Department of Transportation to regulate the spacing of signs on the interstate system. Pursuant to this latter authority Rule 14-10.06(b)2b, Florida Administrative Code, provides that outside incorporated towns and cities, no structures may be located within 500 feet of an interchange to be measured from the beginning or ending from the pavement widening. The sign here under consideration is clearly in violation of these provisions.
Section 479.16 exempts from the requirement that a permit be issued for signs erected on the premises of an establishment which signs consist primarily of the name of the establishment.
It is clear that the sign at issue here is not on the premises of the restaurant nor on any activity or property directly related to the restaurant. Whether this would be so if the proposed children's playground was in operation is not before me and is not decided. However, it appears doubtful that a children's playground more than 1,000 feet from the restaurant with intervening business in between the sign and the restaurant would be found to be an "on- premise" sign.
Respondent's argument that adequate notice of the charges was not provided is without merit. The Notice of Alleged Violation cited violations of Section 479.105, sign erected without a permit, and Section 479.02(1) as a
violation of a sign within 500 feet of a restricted interchange. Those were the charges on which evidence was presented at the hearing.
From the foregoing it is concluded that the sign owned by McDonald's corporation along I-75 at the intersection of CR-54 in Pasco County is not permitted, is located within the I-75 interchange, is not an on-premise sign and is an illegal sign.
It is
RECOMMENDED that a Final Order be issued directing McDonald's Corporation to remove their sign in the vicinity of I-75 and CR-54 in Pasco County.
ENTERED this 23rd day of July, 1987, in Tallahassee, Florida.
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 23rd day of June, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1629T
Treatment Accorded Petitioner's Proposed Findings of Fact
Included in HO #1 and preamble.
Accepted. Portions not included in HO #4 are deemed unnecessary to the results reached.
Included in HO #6 and #4.
Treatment Accorded Respondent's Proposed Findings of Fact
Accepted. However, this is not material to the results reached.
Included in HO #1.
Included in HO #3.
Included in HO #4.
Included in HO #5.
Included in HO #5 and #7.
Accepted.
Accepted. However, this fact is irrelevant to the issues.
COPIES FURNISHED:
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-9064
Grant D. Peterson, Esquire Suite 300
4905 W. Laurel Street Tampa, Florida 33607
Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE OF FLORIDA,
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 87-1629T
MCDONALD'S CORP.,
Respondent.
/
FINAL ORDER
The Record in these proceedings and the Recommended Order of the Hearing Officer have been reviewed. The Recommended Order is considered correct both in fact and in law. The Recommended Order is incorporated as part of this Final Order.
On August 3, 1987, MCDONALD'S CORPORATION ("MCDONALD'S") filed exceptions to the Recommended Order. All exceptions are considered to be without merit.
The first exception objects in toto to the Conclusions Of Law and Recommendation of the Hearing Officer, on the grounds that the notice of grounds for the illegal sign revocation hearing did not contain adequate notice to comport with due process. The DEPARTMENT OF TRANSPORTATION ("DEPARTMENT") concurs with the Hearing Officer's Conclusions of Law that such a charge is "without merit." The Hearing Officer noted that "[t]he Notice of Alleged Violation cited violations of Section 479.105, sign erected without a permit, and Section 479.02(1) as a violation of a sign within 500 feet of a restricted interchange. Those were the charges on which evidence was presented at the hearing." See also T-4, 7-8 (T - transcript).
The notice sent to McDonald's stated, as one ground, that the sign was in violation of Section 479.105 "Sign erected without required permit." The Recommended Order itself recites that ground as the basis of the hearing (first page of Recommended Order). Section 479.105 provides for the removal of unpermitted signs located adjacent to interstate highways and specifically references Sec. 479.07(1) which reiterates the permit requirement in order to erect a sign on an interstate.
Another ground stated in the notice, was Section 479.02(1). Section 479.02(1) specifically incorporates and references the size, lighting and spacing requirements of Title I of the Highway Beautification Act of 1965 and Title 23, U.S.C. Thee notice of violation contained further explanation that the illegal sign was "Within 500 feet restricted interchange" thereby specifying and providing notice of the exact charges upon which the hearing was held. The location of the restricted interchange was also identified on the violation notice.
MCDONALD's asked for and was granted a continuance of the hearing on the basis that "The gathering and preparation of data pertinent to this case has taken longer to assemble than anticipated." Reasonable notice, extra time and a meaningful opportunity to present evidence in opposition to the alleged violations was had by MCDONALD's. The record indicates no prejudice was shown by any failure to cite the Florida Administrative Code, which reprints the Highway Beautification Agreement. The references to the statutes and explanations of violations shown in the violation notice provided reasonably detailed notice of the exact violations. MCDONALD's made no request, at the conclusion of the hearing, to present any further witnesses or offer any additional evidence. Ervin v. State, Dept. of P. & O. R. etc., 320 So.2d 2 (Fla. 2nd DCA 1975).
Respondent's second exception argues that the Hearing Officer's Conclusions of Law and Recommendation incorrectly found the sign not to be an "on premises" sign. The Hearing Officer clearly considered the matter of whether the on- premises permit exemption in Sec. 479.16 applied to MCDONALD's sign and found that "it is clear that the sign at issue here is not on the premises of the restaurant nor on any activity or property directly related to the restaurant." (emphasis added) Respondent argues that the findings of fact negate this conclusion. The findings of fact, however, state clearly that ". . . the property (on which the sign was located) served only as a site for the sign." The Hearing Officer further noted-that Respondent's witness knew of no MCDONALD's playgrounds which were not located immediately adjacent to the restaurant buildings, as opposed to the alleged plans to build a playground at the instant isolated sign site - at the end of a narrow trail leading some 1,122 feet from the restaurant ending fortuitously at the edge of the interstate highway where the illegal sign was erected.
Respondent cites Harrison v. State Department of Transportation, 349 So.2d 720 (Fla. 1st DCA 1977) for the proposition that "plans alone" for future development, can convert an isolated sign location into a permit exempt integral physical facility of a currently constructed and operating MCDONALD's restaurant. These plans, they argue, make the sign an on-premises exemption.
Harrison interpreted a prior law. The Harrison case interpreted a 1975 statute which was subsequently amended. The amendment totally deleted the statutory language of Sec. 479.16(1), which had been interpreted by the Court in Harrison. Even if the sign statute litigated in Harrison had not been subsequently rewritten, "alleged plans" do not meet the threshold status required by Harrison for an "on-premises" sign permit exemption. The factual circumstances in
Harrison were found by the First District Court of Appeal to have gone beyond mere plans for future development. In Harrison the court rejected the assertion that the sign site was merely in the planning or imagination stage and listed the record evidence as demonstrating actual development. No contracts for Construction, no clearing of the appendaged pathway to the sign and no purchase order of supplies for a nature trail `here introduced as evidence at the hearing. Harrison relied on such record evidence as establishing actual development. No evidence of actual development was presented at the hearing in the instant case. As enacted in Section 479.16 (1) and 479.01 (13), Fla. Stat., b(1984), "a plan" for future use is not a building or physical use which makes the future planned use or activity an "on-premises" exemption. The 1984 revisions more particularly narrow the exemptions for unpermitted signs to those, signs actually on the premises of an establishment. (Sec. 479.16, (1), Fla. Stat., 1985)(emphasis added) Thus the legislature limited the exemption to the already established business place and not to future plans or premises to be established. The accompanying newly enacted definition of premises (Sec.
479.01(13), Fla. Stat. 1985) defines premises as only that land actually occupied the buildings or actual physical uses of the open spaces.
The DEPARTMENT hereby iterates that its interpretation of Sec. 479.16(1), Fla. Stat., precludes consideration of any plans or actual development which are for the primary purpose or sole purpose of maintaining an advertising sign for qualifying as an "on premises" sign. The facts of this case serve as a good illustration. The strained plans of a pathway or play area leading to the sign, some 1,122 feet from the restaurant, whether constructed or not, would not qualify as an "on premises" exemption. This would defeat the purpose of sign regulation law. MCDONALD's witness testified to the effect that if the sign has to be removed, they will not develop the strip of land leading to the sign. (T- 39, lines 2425, T-40 lines 1-2). This indicates the primary purpose of MCDONALD's plans are not for a playland, but are primarily created to obtain a sign exemption. See Best Western Tivoli Inn, et al vs. Dept. of Transportation, 488 So.2d 1052 (Fla. 1st DCA 1984).
ACCORDINGLY, IT 15 ORDERED that the sign structure owned by MCDONALD'S CORP., located at the intersection of 1-75 and CR-54 in Pasco County, Florida, is ILLEGAL and shall be removed from its present location within thirty (30) days of the date of this order or the DEPARTMENT shall remove the sign.
DONE AND ORDERED this 21st day of October, 1987, Tallahassee, Florida.
KAYE N. HENDERSON, P.E.
Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
Copies furnished to:
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
VERNON L. WHITTIER, JR., ESQUIRE
Department of Transportation Haydon Burns Building, MS 5B 605 Suwannee Street
Tallahassee, Florida 32399-0455
GRANT D. PETERSON
Attorney at Law Suite 300
4905 West Laurel Street Tampa, Florida 33607
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: 87-001629
Orders for Case No: 87-001629
