STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REPUBLIC MEDIA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-2969T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated administrative law judge, Mary Clark, held a formal hearing in the above-styled case on February 11, 1997.

The hearing was conducted by videoconference. The parties, their counsel and witnesses, and the court reporter participated from Orlando, Florida; the administrative law judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: David H. Simmons, Esquire

Julie Walbroel, Esquire

Drage DeBeaubian Knight Simmons Romano & Neal

Post Office Box 87

Orlando, Florida 32802-0087

For Respondent: Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Petitioner, Republic Media, Inc., seeks an outdoor advertising sign permit for a two-sided sign to be located on Interstate 4 in Orlando, Florida. The permit was denied because the proposed sign would conflict with (violate spacing requirements) a previously permitted sign. The issue for disposition is whether Petitioner’s permit should be granted.

More specifically, disposition requires a determination of whether the previously permitted sign is “on” Interstate 4.

PRELIMINARY STATEMENT

Republic Media (then known as “Maxmedia, Inc.”) timely requested an administrative hearing on its permit denial and the case was referred to the Division of Administrative Hearings.

The hearing was scheduled but was continued for good cause.

As required by the order of continuance, counsel for the Department of Transportation notified the existing outdoor advertising permitee, POA-Acquisition, that the pending proceeding potentially affected its substantial rights. (See letters dated October 1, 1996 and November 25, 1996, marked and received in evidence as Joint Exhibit no. 1.) POA-Acquisition did not intervene or appear in this proceeding.

At the hearing Republic Media presented seven exhibits, all received in evidence, and the following witnesses: Richard Bernhardt, Don Sutte, Dan Healy and Ann Kelly. The Department offered one exhibit which was received in evidence, and the

testimony of Michael Dollery and Peter W. Wright. There were two joint exhibits: the letters described above, and a videotape reflecting the view from an automobile traveling both east and west on Interstate 4 near the relevant site at the Princeton Street intersection.

The transcript of hearing was filed on March 30, 1997 and the parties filed their proposed recommended orders on March 13 and 14, 1997. These and the parties’ prehearing stipulation have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Republic Media, Inc. (then known as Maxmedia, Inc.) applied for an outdoor advertising permit on April 30, 1996, for a proposed sign site located on Interstate 4 (I-4), 199 feet east of Princeton Street, on the south side of I-4 in Orlando, Orange County, Florida. I-4 is an interstate highway.

2. The proposed sign site is within 660 feet of I-4 and is intended to be visible from I-4. The proposed structure is a rectangular shaped bulletin, 10’6” by 36’, set on a monopole with east and west faces at a V-angle, to facilitate an effective viewing by motorists on I-4.

3. Republic Media has a lease for the proposed site from the landowner, Shell Oil Company. The proposed sign was approved by the City of Orlando and a building permit was issued.

4. POA’s is the nearest DOT-permitted outdoor advertising sign and is located 90 feet east of Princeton Street. The POA

   sign is on the same side of the interstate and the same side of Princeton Street as Republic Media’s proposed sign, and is less than 1,500 feet from Republie Media’s proposed sign.

5. The POA sign consists of two back-to-back billboards mounted on a monopole facing north and south. The north face, facing I-4 and running parallel to the interstate, bears a Department of Transportation permit tag numbered BG003-35.

6. POA applied for and obtained this permit in 1992. The permitted sign face measures 12’ by 25’ and is located within 660 feet of I-4.

7. The POA sign is visible while traveling in both directions on I-4. It is visible, however, only if the viewer turns his or her head to look down Princeton Street while traveling I-4 on the Princeton Street overpass. Visibility is limited to a few seconds and is impeded by oleander bushes which are maintained and trimmed by the City of Orlando.

8. The POA sign, which advertises Universal Studios, was intended and designed for viewing by traffic on Princeton Street.

9. Republic Media has a sign located within 660 feet of State Road 408 (East-West Expressway) which is positioned similar to the POA sign at issue here. The Republic Media sign also runs parallel to State Road 408 and is actually farther from State Road 408 than the POA sign is from I-4.

10. When State Road 408 became subject to state regulation of outdoor advertising, the Department of Transportation required

    Republic Media to obtain a permit for the sign face visible from State Road 408. This regulatory action is consistent with the permitting of POA’s Princeton Street/I-4 sign.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), Florida Statutes.

12. Republic Media has standing in this proceeding pursuant to section 479.08, Florida Statutes, which provides for an administrative hearing upon timely request of a person aggrieved by any action of the department in denying or revoking a permit under chapter 479, Florida Statutes. Republic Media has the burden of proving its entitlement to the permit it seeks.

13. Republic Media’s proposed sign requires a permit pursuant to section 479.07(1), Florida Statutes. It was denied its permit pursuant to section 479.07(9)(a), Florida Statutes, which requires that a permitted sign be located at least 1500 feet from any other permitted sign on the same side of the interstate highway. POA’s previously permitted sign is well within 1500 feet of Republic Media’s proposed site.

14. Republic Media argues, and presented evidence, that POA’s sign is not “on” I-4 because it was not intended to advertise to I-4 traffic and can only barely be seen from I-4.

15. In Hancock Advertising, Inc. v. Department of Transp.,

    
    

    549 So.2d 1086 (Fla. App. 3rd DCA 1989) the court determined that

    a sign situated similar to POA’s sign was not “on” the interstate because persons traveling on the interstate would have to turn their heads to view the message. In the absence of a statutory definition, the court looked to a practical construction that had been adopted by industry standards. In her dissenting opinion, Judge Baskin observed that the sign owner’s intention regarding where it was advertising was irrelevant to the evaluation of DOT’s regulatory jurisdiction.

16. In 1991, the legislature specifically addressed the decision in the Hancock case and added this language to section 479.07(1), Florida Statutes, to avoid the Hancock result in the future:

    ...For purposes of this section, “on any portion of the State Highway System, interstate, or federal-aid primary system” shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

    
    

17. Signs situated within 660 feet of the edge of the right-of-way of the interstate are within the “controlled area” as defined in section 479.01(4), Florida Statutes.

18. Contrary to Republic Media’s assertion, the POA structure meets the threshold definition of “sign” at section 479.01(17), Florida Statutes. It is “...any combination of structure and message in the form of an outdoor sign, display, device...”. It is “...designed, intended, or used to advertise or inform...”, with “...any part of the advertising message or

    informative contents of which is visible from any place on the main-traveled way”.

19. “Visible” does not necessarily mean “legible”. “’Visible sign’ means that the advertising message or informative contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual activity”. Section 479.01(26), Florida Statutes. (emphasis added)

20. Republic Media failed to prove that its proposed sign meets the spacing requirements of section 479.07(9)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That Republic Media’s application for sign permit at I-4 and Princeton Street be denied.

DONE and ENTERED this 16th day of April 1997 in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April 1997.

COPIES FURNISHED:

David H. Simmons, Esquire Julie Walbroel, Esquire

Drage DeBeaubian Knight Simmons Romano & Neal

Post Office Box 87

Orlando, Florida 32802-0087

Andrea V. Nelson, Esquire Department of Transportation Hayden Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Hayden Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Department of Transportation Hayden Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-002969

Orders for Case No: 96-002969