Judges: WILLIAM R. DORSEY, JR.
Agency: Department of Transportation
Latest Update: Dec. 18, 1987
Summary: The issue is whether the easterly face of a V-shaped, two-faced sign located on Interstate-95 at the junction with the west bound exit ramp of State Road 836 has a proper permit from the Department of Transportation and whether that sign face violates spacing rules on interstate highways.Sign in violation of spacing rules. Respondent to remove sign.
87-3083STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3083T
)
HANCOCK ADVERTISING, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: Charles G. Gardner, Tallahassee, Florida For Respondent: Charles C. Papy, III, Coral Gables, Florida
This matter was heard on August 26, 1987, by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings. Transcript was filed on October 5, 1987, Proposed Findings of Fact and Conclusions of Law were submitted by November 20, 1987. Rulings on Proposed Findings of Fact are made in the Appendix to this Recommended Order.
ISSUE
The issue is whether the easterly face of a V-shaped, two-faced sign located on Interstate-95 at the junction with the west bound exit ramp of State Road 836 has a proper permit from the Department of Transportation and whether that sign face violates spacing rules on interstate highways.
FINDINGS OF FACT
Hancock Advertising Agency owns a sign which is located immediately adjacent to Interstate-95 in the City of Miami at the point where State Road 836 and Interstate-95 meet. The structure and its advertising message is an outdoor advertising sign as defined in Chapter 479, Florida Statutes. The sign is visible from the main travelled way of Interstate-95.
Interstate-95 is part of the interstate highway system as defined in Section 479.01(7), Florida Statutes.
The structure is located approximately 10 to 12 feet inside the Department of Transportation's right-of-way fence. No State outdoor advertising permit has been issued for the sign face which is the subject of this litigation.
The Hancock Advertising sign is only about 443 feet from the nearest legally permitted sign.
Hancock Advertising received proper notice from the Department of Transportation of the outdoor advertising violations by mail and by posting a notice of violation on the sign.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction over this matter. Section 120.57(1), Florida Statutes (1985)
The statutes which form the basis for the proceeding brought by the Department are Section 479.07(1), Florida Statutes (1985), and Section 479.07(9)(a)1., Florida Statutes (1985), which read:
Except as provided in s. 479.16, a person may not erect, operate, 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 highway system without first obtaining a permit for the sign from the Department and paying the annual fee as provided in this section.
Section 479.07(1), Florida Statutes (1985).
A permit shall not be granted for any sign for which a permit has not been granted by the effective date of this act unless such sign is located at least:
1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. Section 479.07(9)(a)1., Florida Statutes.
If a sign is unpermitted, it may be removed. Under Section 479.105(1), Florida Statutes (1985):
Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.
Hancock Advertising argues that a strict reading of Section 479.07(1) merely prohibits the erection of signs "on" any portion of the interstate or federal-aid primary highway system, and since the sign is not on the highway it does not violate the statute. Section 479.07(1), Florida Statutes, must be read in conjunction with Section 479.105(1). The removal section makes clear that the Legislature is concerned not only with signs located on the highway but also with signs within the right-of-way of the interstate or federal-aid primary highway systems. The sign at issue is within the right-of-way of the Department
of Transportation (Tr 19). The sign at issue can be seen from Interstate-95 and thus meets the statutory definition of a "sign" found in Section 479.01(14), Florida Statutes (1985), which is a "message in the form of an outdoor sign ... any part of the advertising message or informative contents of which is visible from any place on the main-traveled way." The other side of the sign is not, however, visible from the main traveled way of Interstate-95. Thus, that side of the sign does not fall within the jurisdiction of the Department of Transportation. It does not follow, however, that because one face of a sign is not within the Department's jurisdiction, the other side of the sign must also fall outside the Department's jurisdiction. The definition of "sign" is such that the essential jurisdictional characteristic is whether the advertising message can be seen from the main-traveled way of the relevant road; different conclusions may be reached about different faces of the same sign.
There is no doubt that Hancock Advertising knew that the sign facing Interstate-95 was not permitted, and it took a business risk that they could add the portion facing Interstate-95 to the structure which it legally could erect facing State Road 836. The face of the sign visible from the main travelled way of Interstate-95 is within 443 feet of another permitted structure, and cannot itself be permitted given the requirement of Section 479.07(9)(a)1., Florida Statutes (1985), that permitted signs on the same side of the highway be at least 1,500 feet apart.
RECOMMENDATION
It is RECOMMENDED that the easterly face of the sign structure which is visible from the main traveled way of Interstate-95 be removed pursuant to Section 479.105(1), Florida Statutes.
DONE and ORDERED this 18th day of December, 1987, in Tallahassee, Florida.
WILLIAM R. DORSEY, JR.
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 18th day of December, 1987.
FILINGS IN HANCOCK
Petitioner's
Covered in Finding of Fact 5.
Covered in Finding of Fact 1.
Covered in Finding of Fact 1.
Covered in Finding of Fact 1.
Covered in Finding of Fact 1.
Covered in Finding of Fact 3.
Covered in Finding of Fact 2.
Covered in Finding of Fact 3.
Covered in Finding of Fact 3.
Not a Finding of Fact.
Respondent's
All facts contained in the Respondent's statement of facts have been adopted.
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Charles C. Papy, III, Esquire PAPY, POOLE, WEISSENBORN & PAPY
201 Alhambra Circle, Suite 502 Coral Gables, Florida 33114
Raye N. Henderson, P.E., Secretary Department of Transportation
ATTN: Eleanor F. Turner, Mail Station 58 Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 87-3083T
HANCOCK ADVERTISING, INC.,
Respondent.
/
FINAL ORDER
The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached. Respondent, HANCOCK ADVERTISING, INC., (Hancock) has filed Exceptions to the Recommended Order which are considered and addressed below.
The Findings of Fact in the Recommended Order are considered correct and are incorporated as part of this Final Order except for the first sentence of Finding of Fact number 3. The Respondent's Exception although referencing paragraph 4 of the Conclusions of Law is in essence an exception to the Hearing Officer's finding that the subject sign "is located approximately 10 to 12 feet inside the Department of Transportation's right-of-way fence." Respondent's exception is grounded on lack of evidentiary support for such finding. After reviewing the record, the Department agrees with Respondent that there is no competent substantial evidence to support a finding that the subject structure is located within the Department's right-of-way. In fact, the evidence clearly shows that the structure is located 10 to 12 feet from the right-of-way of Interstate 95. Accordingly, the Department rejects the first sentence of Finding of Fact number 3 of the Recommended Order as not supported by competent substantial evidence.
The Department rejects the third and fourth sentences of the Hearing Officer's Conclusion of Law number 4 since it is premised on the structure being located within the right-of-way. Such conclusion, although correct as a matter of far, is rejected as being irrelevant to the facts of the instant case.
However, because the subject sign is immediately adjacent to Interstate 95, visible from the main-traveled way of Interstate 95 and erected without a permit, the subject sign should be removed pursuant to Section 479.105(1), Fla. Stat. (1985).
THEREFORE IT IS ORDERED that the easterly face of the sign structure owned by Hancock Advertising, Inc. and located immediately adjacent to Interstate 95 in the City of Miami, Dade County, Florida at the point where State Road 836 and Interstate 95 meet is an- illegal sign and must be removed within 20 days of the date of this order or the Department shall remove the sign.
DONE AND ORDERED this 1st day of February, 1988, at Tallahassee, Florida.
KAYE N. HENDERSON, P.E.
Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
Copies furnished to:
ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
CHARLES C. PAPY, III
Post Office Box 141939
Coral Gables, Florida 33114-1939
CHARLES G. GARDNER, 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: 87-003083
Orders for Case No: 87-003083
