STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3253T

)

BERLIN SIGN COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case before Arnold H. Pollock, Hearing Officer, in Sarasota, Florida on August 2, 1989.

APPEARANCES

For Petitioner: Rivers Buford, Jr., Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

For Respondent: J. Michael Berlin

Berlin Sign Company

264 Bahama Street Venice, Florida 34285

STATEMENT OF THE ISSUES

Whether Respondent's sign, as identified in Notice of Violation Number 1- 17-14, is permittable.

PRELIMINARY STATEMENT

By letter dated May 24, 1989. J. Michael Berlin, on behalf of Respondent, Berlin Sign Company, requested an administrative hearing on the propriety of violation notice 1-17- 14, issued by the Department previously. On June 16, 1989, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on June 22, 1989, the undersigned set the case for hearing on August 2, 1989, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Joseph V. Hanrahan, an outdoor advertising inspector for the Department, and introduced Petitioner's Exhibits 1 through 5. Respondent presented the testimony of Mr. Berlin and introduced Respondent's Exhibits A through G.

No transcript was provided and neither side filed Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the matters concerned herein, Respondent, Berlin Sign Company, was engaged in the outdoor advertising business in Florida, and Petitioner, Department of Transportation, was the state agency charged with the responsibility for regulating outdoor advertising in this state.

   
   

2. On or about March 30, 1989, Joseph V. Hanrahan, an outdoor advertising inspector for the Department of Transportation, observed a sign owned by the Respondent and erected under permit issued by Sarasota County, located approximately 60 feet south of River Road and 250 feet west of U.S. Highway 41, in Sarasota County, Florida. The sign is clearly visible from U.S. Highway 41, a federal aid primary highway and is located approximately 200 feet from a billboard facing in the same direction owned by National Advertising Company. Though a swampy area between the signs prevents an accurate measurement of the distance, Mr. Hanrahan is quite certain the distance is well within the 1,000 foot separation distance required by the Rules of the Department, and it is so found.

   
   

3. River Road intersects with U.S. Highway 41, and though the sign in issue is primarily directed at traffic on River Road approaching U.S. Highway 41 from the east, due to the curve of U.S. Highway 41, the sign is readily visible from U.S. Highway 41 which almost parallels River Road at that point.

   
   

4. The sign in issue advertises a real estate development located quite a distance to the north and west of the sign location. River Road is a primary feeder road from Interstate Highway 75 on the East to the area. Much of the traffic exiting the Interstate for this area utilizes River Road, and it is at this traffic the sign is aimed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

6. Chapter 479, Florida Statutes, establishes the statewide laws which control and regulate outdoor advertising in areas adjacent to state highways. Under the terms of this statute, the Department of Transportation is empowered to administer and enforce the provisions of Section 479. (Section 479.02, Florida Statutes).

   
   

7. Consistent therewith, the Department promulgated Chapter 14-10, F. A. C., the purpose of which is to control outdoor advertising signs along any portion of the Interstate and Federal Aid Primary systems, and along the state highway system outside the corporate limits of cities and towns.

   
   

8. Under the provisions of Rule Section 479.11(1) no sign may be erected, used, operated, or maintained within 660 feet of the nearest edge of the right- of-way of a federal aid primary highway. Section 479.07(9)(a)2, prohibits the granting of a permit for a sign located 1,000 feet from any other permitted sign on the same side of the highway and facing in the same direction.

9. Section 479.01(14) includes within the definition of a "sign," a structure and message any part of which is visible from any place on the main travelled way. Section 479.01(23) defines a visible sign as one on which the advertising message is capable of being seen without visual aid by a person of normal visual acuity.

   
   

10. The parties have agreed that the sign in question was erected under permission from Sarasota County to place a sign on River Road. As erected, however, while perpendicular to River Road, it is nonetheless within the 660 foot setback from U.S. Highway 41, from which it is clearly visible, and within 1,000 feet of the next closest sign facing in the same direction. As such, it is in violation of the terms of both the rule and statute governing outdoor advertising, and must be moved.

RECOMMENDATION

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

RECOMMENDED that a Final Order be issued requiring Respondent, Berlin Sign Company, to remove the sign in question to a location consistent with the state requirements for sign adjacent to federal aid primary highways.

RECOMMENDED this 28th day of August, 1989, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 28th day of August, 1989.

COPIES FURNISHED:

Rivers Buford, Jr., Esquire

Florida Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

J. Michael Berlin Berlin Sign Company

264 Bahama Street Venice, Florida 34285

Thomas H. Bateman, III, Esquire Dept. of Transportation

Haydon Burns Bldg.

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 89-003253

Orders for Case No: 89-003253