STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVIS MARINE SERVICES, INC., ) d/b/a THE OUTPOST, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3176T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in DeFuniak Springs, Florida on November 7, 1996 before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Davis

4576 Highway 3280

Freeport, Florida 32439

For Respondent: Andrea V. Smart, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issues in this case are: (1) whether Davis Marine Services, Inc., d/b/a The Outpost was required to have a permit for its sign located at State Road 20, two miles east of U. S. Highway 331, in Walton County, pursuant to Section 479.07(1), Florida Statutes; and (2) whether Davis Marine Services, Inc., d/b/a The Outpost erected, used, operated or maintained the sign without a permit in violation of Section 479.07, Florida Statutes.

PRELIMINARY STATEMENT

On or about June 10, 1996 Petitioner Davis Marine Services, Inc. d/b/a The Outpost (Petitioner) filed a request for a formal hearing to challenge Respondent Department of Transportation's (Respondent) violation notices relating to an allegedly illegally erected sign. Respondent referred this matter to the Division of Administrative Hearings on July 2, 1996 for the assignment of an Administrative Law Judge.

Administrative Law Judge Diane Cleavinger issued a Notice of Hearing scheduling the case for final hearing on August 22, 1996. On or about August 31, 1996 the Division of Administrative Hearings transferred the case to Administrative Law Judge Suzanne F. Hood.

During the hearing, Paul Davis testified on Petitioner's behalf.

Petitioner offered three exhibits which were accepted into evidence. Respondent presented the testimony of two witnesses. Respondent had six exhibits marked for identification, three of which were offered and accepted into evidence.

The transcript of the proceeding was filed on November 27, 1996.

Petitioner filed a proposed recommended order on December 5, 1996. Respondent filed a proposed recommended order on December 9, 1996.

FINDINGS OF FACT

1. In August of 1995 Champion International Corporation gave Petitioner permission to place a sign advertising The Outpost on property that Champion owned in Walton County. The sign was to be located at the corner of the south side of State Road 20 and Black Creek Boulevard. State Road 20 is a federal-aid primary road. Black Creek Boulevard is a county maintained road.

   
   

2. Petitioner subsequently erected a 4' X 8' outdoor advertising sign on Champion's property. The sign was located on the south side of State Road 20, two miles east of U. S. 331 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. The sign was double-sided with east and west faces.

   
   

3. On September 1, 1995, Petitioner filed an application with Respondent requesting a permit for the 4' X 8' sign already erected on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard.

   
   

4. On September 22, 1995 Respondent issued a Notice of Denied Application informing Petitioner that it could not have a permit for a sign on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. Respondent denied this permit for two reasons: (a) the location was zoned "agricultural" which was an un-permittable land use designation; and (b) the proposed sign was located on the state's right-of-way.

   
   

5. After receiving the Notice of Denied Application, Petitioner removed the 4' X 8' sign.

   
   

6. On or about January 29, 1996 Petitioner filed a sign permit application with the Walton County Building Department. The application was for an off- premises sign to be located fifty (50) feet south of State Road 20 along Black Creek Boulevard. The application states that:

   
   

   If the proposed sign is located along a federal aid primary road, a permit from the Florida Department of Transportation (904/638-0250) must be obtained before a Walton County building permit is issued.

   The applicant must obtain a letter from Walton County to submit to the Department of Transportation to submit with the application.

   
   

   Petitioner did not apply for a permit from Respondent for this proposed sign.

7. The Walton County Building Department issued Petitioner a permit to erect the proposed sign on January 29, 1996.

   
   

8. Petitioner subsequently erected a second sign on the south side of State Road 20, one foot off of the right-of-way, and about fifty (50) feet from the intersection of State Road 20 and Black Creek Boulevard. It was 8' X 8', two-sided, mounted in concrete, with red, black and white copy advertising The Outpost on both sides. The sign was placed so that it could be read by east and west bound traffic along State Road 20. Only the east face of the sign could be read from Black Creek Boulevard.

   
   

9. The subject sign was located within 660 feet of the right-of-way of State Road 20. It did not qualify as an on-premise sign because the Outpost RV Park was located two miles away.

   
   

10. Respondent never received a permit application from Petitioner for the 8' X 8' sign. There was no material difference in the location of Petitioner's previously removed 4' X 8' sign and the new 8' X 8' sign.

    
    

11. On May 13, 1996 Respondent issued Notice of Violation No. 10BME1996110 to Petitioner for the west facing of the 8' X 8' sign. Respondent also issued Notice of Violation No. 10BME1996111 to Petitioner for the east facing of the same sign.

    
    

12. Each Notice of Violation contained a location description for a sign which was the same as the location description contained in Petitioner's previously denied sign permit application.

    
    

13. The basis for both violations was that neither sign had the permit required by Section 479.07(1), Florida Statutes. The notices directed Petitioner to remove the sign structure within thirty (30) days.

    
    

14. Respondent subsequently removed the 8' X 8' sign because Petitioner failed to do so within the prescribed time.

    
    

15. Respondent's right-of-way on the north and south side of State Road 20 is the area that Respondent maintains which is approximately fifty (50) feet. Respondent's right-of-way map showing the maintained area is available to the public at Respondent's Right-Of-Way Office.

    
    

16. In the past, Petitioner erected other signs along U. S. Highway 331 without obtaining a permit. Respondent issued a permit for at least one of these signs after Petitioner filed the appropriate application. Respondent required Petitioner to remove any sign that was not eligible for a permit.

    
    

17. Respondent's inspector issued more than ten (10) notices of violation to owners of other outdoor advertising signs in the same general vicinity as Petitioner's 8' X 8' sign on May 13, 1996. These signs have been removed.

    
    

18. There is a Reddick Fish Camp sign located on the south side of State Road 20 and west of the intersection of State Road 20 and County Road 3280. That sign is located six miles from the sign at issue here. Another sign has been nailed to a tree three-quarters of a mile west of the subject sign. There is insufficient evidence to determine whether these signs are illegal because they do not have a permit.

19. There is no persuasive evidence that Respondent issues violations to Petitioner when it erects an off-premises sign without a permit but allows illegal signs of other property owners to exist without issuing similar notices of violation.

    
    

20. Even if Petitioner had filed a permit application for the sign structure at issue here, it would have been ineligible for issuance of a permit because the location's land use designation was agricultural. If the property had been zoned commercial or industrial, Petitioner would have been required to have a permit because the sign did not qualify for any exceptions to Chapter 479, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

22. Section 479.07(1), Florida Statutes, states as follows:

    
    

    1. Except as provided in ss. 479.105(1)(e) and 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. 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.

       
       

23. Section 479.01(4), Florida Statutes, defines "controlled area" as follows:

    
    

    (4) "Controlled area" shall mean 660 feet or less from the nearest edge of the right- of-way of the interstate or federal-aid primary system designated predominately for

    commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to chapter 163. Where a local governmental entity has not enacted a comprehensive plan by local ordinance but has zoning regulations governing the area, the zoning of an area shall determine whether the area is designated predominately for commercial or industrial uses.

    
    

24. Section 479.01(26), Florida statutes, defines a "visible sign" as follows:

    (26) "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 acuity.

    
    

25. Petitioner's sign was not exempt from the requirements of Section 479.07, Florida Statutes because: (a) it was not on the premises of the business it advertised; (b) it was not related to a farm; (c) it did not relate to the sale or rent of real property; (d) it was not an official notice, historical marker, or traffic control sign; (e) it was not related to safety;

    (f) it was not erected by the owner of the property on which it was located; (g) it did not warn against trespassing; (h) it did not relate to a church, a charity or civic organization; (i) it did not relate to a political campaign; and (j) it did not denote the distance to a residence or farm. Section 479.16, Florida Statutes.

    
    

26. In this case, the sign at issue was within 660 feet of the nearest edge of the right-of-way of State Road 20 which is a part of the federal-aid primary system. The sign's advertising message was visible on its east and west face from State Road 20. The west face of the sign was not visible from Black Creek Boulevard.

    
    

27. Respondent properly issued the notices of violation and removed the subject sign because Petitioner erected it illegally. If the location of the sign had been predominately commercial or industrial, Petitioner would have been required to seek a permit from Respondent. However Respondent could not issue a permit for the sign under any circumstances because its location was zoned agricultural and not commercial or industrial under the future land use map of Walton County's comprehensive plan.

    
    

28. There is no persuasive evidence that Respondent is guilty of selectively enforcing the statutes and rules requiring permits for outdoor advertising signs.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order finding that Petitioner erected a sign with two faces in violation of Section 479.07(1), Florida Statutes.

DONE and ENTERED this 17th day of December, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 17th day of December, 1996.

COPIES FURNISHED:

Paul T. Davis 4576 Highway 3280

Freeport, Florida 32439

Andrea V. Smart, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transporation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building 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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003176

Orders for Case No: 96-003176