STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK MEDIA GROUP, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-4933T

) DEPARTMENT OF TRANSPORTATION, )

)

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 cause on January 12, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Thomas M. Harris, Esquire

Gail F. Moulds, Esquire Post Office Drawer 1441

St. Petersburg, Florida 33731-1441

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32309 FINDINGS OF FACT

By letter dated August 25, 1988, Patrick Media Group, Inc., Petitioner, by and through its Real Estate Manager, requested an administrative hearing to contest the denial by the Department of Transportation (DOT), Respondent, of its application to erect a sign on SR 580, 100 feet north of Nebraska Avenue in Hillsborough County facing eastbound traffic. This request was forwarded to this office by DOT and this hearing followed.

At the hearing, the parties stipulated to all applicable facts regarding this sign leaving as the only issue whether or not the structure comes under the statutory spacing requirements. Petitioner called one witness and ten exhibits were admitted into evidence.

Proposed findings submitted by the parties, to the extent not rejected herein, are adopted.

FINDINGS OF FACT

1. The sign in issue is owned by the Petitioner, is in existence and is located as shown on Exhibits 1 and 2 along SR 580, 100 feet north of Nebraska Avenue.

2. The sign is located within the city limits of Tampa and is outside the DOT right of way.

   
   

3. There is only one face on this sign which faces southwest and can be seen by eastbound traffic on Busch Boulevard (SR 580).

   
   

4. SR 580 is a noncontrolled highway and the spacing requirements are not applicable to signs along Busch Boulevard which are otherwise not controlled.

   
   

5. Nebraska Avenue (U.S. 41) is a federal-aide primary highway.

   
   

6. A sign was originally erected in the same location as the existing sign in 1979 and remained until 1987 when the property on which the sign was erected changed hands. The new owners requested the sign be dismantled and re-erected on property being developed. This was done and the sign was re-erected in 1988 on its original location and of the same size as the original sign.

   
   

7. The original sign was exempt from the spacing requirements by virtue of its grandfather status as a nonconforming sign.

   
   

8. The sign can readily be seen by motorists traveling north on U.S. 41 (Exhibits 8-10).

   
   

9. When the sign was rebuilt it lost its grandfather status and a new sign permit is required.

   
   

10. Petitioner presented the only witness who testified that the angle of the sign is intended to give maximum visibility on Busch Boulevard and that the exposure time to a motorist is substantially longer on Busch Boulevard than on Nebraska Avenue. However, the exhibits submitted into evidence show the sign to be at an approximate 45 degree angle to both Busch Boulevard and Nebraska Avenue, that the sign is seen to the left side of a vehicle traveling east on Busch Boulevard and to the right side of a vehicle traveling north on Nebraska Avenue, and that there are more obstructions to the sign's visibility from Busch Boulevard than from Nebraska Avenue. This latter factor would indicate the sign's exposure time from Nebraska Avenue is at least equal to the sign's exposure time from a vehicle traveling along Busch Boulevard.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 479.01(14), Florida Statutes (1987) defines "sign" to mean any combination of structure and message in the form of an outdoor sign designed to advertise or inform any part of the advertising message or information the contents of which is visible from any place on the main-travelled way.

    
    

13. Since the structure in issue is clearly visible from the federal-aid primary highway (Nebraska Avenue) it is a sign subject to the spacing requirements applicable to federal-aid primary highways.

    
    

14. Rule 14-10.007, Florida Administrative Code, provides that a nonconforming sign may be repaired without losing its nonconforming status but may not be re-erected except on a conforming location. When the former sign was taken down and rebuilt in its present location, it lost its grandfather status

    and must now comply with the spacing requirements since it is clearly visible from a federal-aid primary highway, (Nebraska Avenue).

    
    

15. Petitioner cites the provision of Rule 14-007, Florida Administrative Code as authority for re-erecting this sign in a nonconforming location. That provision states:

    
    

    A sign which was conforming on June 30, 1984, but which does not comply with the size, spacing, and height requirements of Sec.

    479.07(9), F.S., shall not be considered a nonconforming sign.

    
    

16. No evidence was presented that this sign met the more liberal spacing requirements effective on June 30, 1984 and that it was a conforming sign on that date. If within 500 feet of a permitted sign on June 30, 1984, Petitioner's sign was a nonconforming sign on that date. The only evidence presented relative to this issue was the parties' stipulation that the sign does not meet current spacing requirements. (1000 feet)

    
    

17. The parties have stipulated that the sign is in violation of the spacing requirements for signs along federal-aid primary highways. Petitioner's position that the sign is intended solely for traffic along Busch Boulevard, (SR 580), an uncontrolled highway, is irrelevant in view of the clear wording of the statute which brings all signs visible from the main travelled way of a controlled highway under the statutory requirements for permitting signs.

    
    

18. Petitioner also cites Rule 14-005(2), Florida Administrative Code to support its position that the sign is intended to be read from Busch Boulevard. That rule states:

    
    

    (2) The following factors shall be considered in determining whether a sign erected for the purpose of its message being read from the main travelled way of an Interstate or Federal-Aid Primary Highway:

    1. The sign erected or to be erected

       is substantially larger than other similar signs which are on the noncontrolled road and which are not visible from a controlled road.

    2. The sign advertises or will

       advertise a location not directly accessible from the noncontrolled road.

    3. The exposure time for the sign to travelers on the controlled route is at least as long as for travelers on the noncontrolled route.

    4. The angle of the sign erected or

    to be erected in relation to the controlled road is at least equally advantageous as the angle of the sign to the noncontrolled road.

    
    

19. With respect to the above factors, the photographs submitted are inconclusive with respect to (a) above but the sign appears to be larger than other signs along Busch Boulevard in the vicinity of this sign; the message on the sign at present advertises a business in Land O'Lakes, a location several miles north on U.S. 41 and not accessible from Busch Boulevard; the exposure

    time for the sign to travelers on the controlled route would appear to be at least as long as the exposure time on the noncontrolled route; and the sign is angled to be equally visible from both the controlled and uncontrolled routes.

    
    

20. From the foregoing, it is concluded that Petitioner's sign along S.R. 580, 100 feet north of Nebraska Avenue within the city limits of Tampa, Florida, is clearly visible to northbound traffic along Nebraska Avenue, a federal-aid primary highway, and comes under the spacing requirements for signs visible from federal-aid primary highways. Since this sign is within 1,000 feet of a permitted sign on the same side of U.S. 41 which faces in the same direction, the sign is not permittable.

    
    

21. The burden is on Petitioner to show the sign is permittable. Considering all of the evidence presented, Petitioner has failed to meet this burden.

It is,

RECOMMENDED that Patrick Media Group, Inc.'s application for a sign along

S.R. 581 north of U.S. 41 facing eastbound traffic be DENIED.

DONE and ENTERED this 10th day of February, 1989, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989.

COPIES FURNISHED:

Thomas M. Harris, Esquire Gail F. Moulds, Esquire

P. O. Drawer 1441

St. Petersburg, Florida 33731-1441

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32309

Kaye N. Henderson Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, MS 58

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 3239-0450

Docket for Case No: 88-004933

Orders for Case No: 88-004933