STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3808T

)

ARTHUR STEEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ocala, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 17, 1992. The Division of Administrative Hearings received the hearing transcript on January 31, 1992.

APPEARANCES

For Petitioner: Vernon L. Whittier, Esq.

Department of Transportation 605 Suwanee Street, M.S. 58

Tallahassee, FL 32399-0458

For Respondent: Frank C. Amatea, Esq.

500 N.E. Eighth Avenue Ocala, FL 32670

STATEMENT OF THE ISSUE

Whether respondent has erected or maintained a sign on State Road 40 at the intersection with North East 49th Terrace in Marion County without the requisite permit and in violation of spacing requirements?

PRELIMINARY STATEMENT

By notice to show cause No. 05-36-100B-91 (EF) dated April 17, 1991, petitioner Department of Transportation (DOT) alleged that an outdoor advertising sign erected at the intersection of State Road 40 and North East 49th Terrace in Marion County lacked a permit and "Violate[d] Spacing Rule," all in violation of Sections 479.07(1), (5)(a) and (9)(a) 2, and 479.105, Florida Statutes.

The notice named Joy Steen as the sign owner, and counsel requested an administrative hearing on her behalf, which request DOT forwarded to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991). At hearing, by agreement of the parties, Arthur Steen was substituted for his wife as respondent.

FINDINGS OF FACT

1. Respondent Arthur Steen owns an outdoor advertising sign located at the intersection of State Road 40 and Northeast 49th Terrace, within 660 feet of the right of way of State Road 40, which "has continued as Federal-Aid Primary highway [from October 24, 1955] up to the present date." Joint Stipulation.

   
   

2. Mr. Steen's sign, which is visible from the main travelled way of State Road 40, proclaims on east and west faces:

   
   

   Marion Pines

   
   

   
   

   Senior Mobile Home Community

   Model Homes Turn Here

   Arrows point toward "Marion Pines," the new name of the first trailer park in Marion County. A subdivision lies between State Road 40 and the trailer park where Mr. Steen rents lots to mobile home owners.

   
   

3. Mr. Steen's sign stands 599 feet west of another outdoor advertising sign, on the same side of the highway. DOT has issued permits to Harry Moody Signs for the other sign, which has two sign boards. Petitioner's Exhibit No. 5.

   
   

4. Mr. Steen's sign stands on land that, like the trailer park and the subdivision, once belonged to Ross Allen. Mr. Steen and Mr. Allen originally paved what is now North East 49th Terrace (until recently known as North East 50th Avenue) and Mr. Steen maintained the road thereafter. Now the county has posted street signs.

   
   

5. The sign at issue does not stand on premises Mr. Steen owns. The sign has stood within the right of way of the road leading to the trailer park since 1969 (although the copy was changed in 1983 and again in 1991; and the sign was enlarged in 1983.) At one time, Ross Allen offered to convey what has become North East 49th Terrace to Mr. Steen, Respondent's Exhibit No. 2, but Mr. Steen never accepted the offer.

   
   

   CONCLUSIONS OF LAW

   
   

6. Since DOT referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

7. Florida law requires all non-exempt outdoor advertising signs to be permitted, and that permit tags be posted on each sign face.

   
   

8. Section 479.07, Florida Statutes (1991) provides:

   
   

   1. 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.

      
      

      (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance.

      
      

      (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

      
      

      1. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

         
         

         The law requires permits even for signs that stood before the law became effective. Respondent did not contend otherwise, but argued that two exemptions were available in this case, both in favor of "on premises" signs:

         
         

         1. Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which meet the minimum requirements of the Southern Building Code.

      
      

      . . .

      
      

      (3) Signs posted or displayed on real property by the owner or by the authority of the owner, stating that the real property is for sale or rent. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.

      
      

      Section 479.16, Florida Statutes (1981). But both these exceptions depend on ownership of the land on which the sign stands, and the evidence did not show that respondent owned the land.

9. Despite its longevity, respondent's sign is not in compliance with statutory requirements. No permit was ever issued for it. The law now flatly forbids issuance of a permit for a sign closer than 1,000 feet to a permitted sign on the same side of the highway.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

The DOT declare respondent's sign in violation.

DONE and ENTERED this 31 day of March, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31 day of March, 1992.

COPIES FURNISHED TO:

Vernon L. Whittier, Esquire Department of Transportation 605 Suwanee Street, M.S. 58

Tallahassee, FL 32399-0458

Frank C. Amatea, Esquire

500 N.E. 8th Avenue Ocala, FL 32670

Ben G. Watts, Secretary ATTN: Eleanor Hunter Department of Transportation 605 Suwanee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Suwanee Street Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NO. 91-3808T

DOT CASE NO. 91-0077

ARTHUR STEEN,

Respondent.

/

FINAL ORDER

The Department of Transportation, Petitioner, sent a notice of violation to Joy Steen for an unpermitted sign located near the intersection of State Road 40 and N.E. 49th Terrace in Marion County, Florida. Joy Steen requested a hearing, and the matter was referred to the Division of Administrative Hearings. At hearing by agreement of the parties, Arthur Steen, Joy Steen's husband, was substituted as the proper party.

A hearing was held in this matter on January 17,1992. The Hearing Officer entered a Recommended Order, copy attached, on March 31, 1992. No exceptions to the Recommended Order were Filed by either party. The Hearing Officer's Findings of Fact are adopted and incorporated as if fully set out herein.

CONCLUSIONS OF LAW

The Hearing Officer's Conclusions of Law are accepted in part and are modified as set out below based on the foregoing findings and applicable law.

1. Since DOT referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

2. Florida law requires all non-exempt outdoor advertising signs to be permitted, and that permit tags be posted on each sign face.

Section 479.07, Florida Statutes (1991) provides:

(1) 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.

(5) (a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of the permit issuance.

(9) (a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

1. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

   
   

2. The law requires permits even for signs that stood before the law became effective. Respondent did not contend otherwise, but argued that two exemptions were available in this case, both in favor of "on premises" signs:

   
   

   (1) Signs erected on the premises of any establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which meet the minimum requirements of the Southern Building Code.

   
   

   (3) Signs posted or displayed on real property by the owner or by the authority of the owner, stating that the real property is for sale or rent. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.

   
   

   Section 479.16, Florida Statutes (1981). Based on the foregoing factual findings, neither of these exceptions are applicable to the Marion Pines sign.

   
   

3. Despite its longevity, respondent's sign is not in compliance with statutory requirements. No permit was ever issued for it. The law now flatly forbids issuance of a permit for a sign closer than 1 ,000 feet to a permitted sign on the same side of the highway.

ORDER

It is, accordingly,

ORDERED that the outdoor advertising sign of Respondent, located near the intersection of State Road 40 and N.E. 49th Terrace in Marion County, Florida, is an ILLEGAL sign and shall be removed within thirty (30) days of the date of this order. In the event Respondent fails to remove the sign within the time set

out herein, the Department shall remove the sign and the cost of the removal is assessed against Respondent pursuant to this Final Order.

DONE AND ORDERED this 22nd day of May, 1992.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED:

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Frank C. Amatea, Esquire

500 N.E. 8th Avenue Ocala, Florida 32670

Vernon L. Whittier, Jr., Esquire Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

Motorists Information Services Coordinator Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Tom Barry

District Secretary

Florida Department of Transportation 719 South Boulevard

Deland, Florida 32731-0047

Peter W. Wright

District 5 Outdoor Advertising Administrator Florida Department of Transportation

719 South Boulevard

Deland, Florida 32731-0047

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.

Docket for Case No: 91-003808

Orders for Case No: 91-003808