STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARENCE E. ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4676T

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, on March 13, 1997 in Jasper, Florida.

APPEARANCES

For Petitioner: Kenneth “Sonny” Scaff, Jr., Esquire

Post Office Drawer O Jasper, Florida 32052

For Respondent: Andrea V. Nelson, Esquire

Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

Whether the Outdoor Advertising Sign owned by the Petitioner qualifies for permitting as a non-conforming sign.

PRELIMINARY STATEMENT

On or about August 5, 1996, the Department of Transportation (Department) issued a notice of violation for an outdoor

advertising sign (subject sign) located 9.240 miles south of the Georgia-Florida state line along Interstate 95 on property belonging to Clarence E. Adams. The Department cited the aforesaid sign for not having a permit when it determined as the result of an investigation of an apparently un-permitted sign belonging to 3M Corporation that 3M sign being investigated was permitted and the permit assigned to it was affixed to the subject sign.

On September 4, 1996, Adams requested a formal hearing, and the Department forwarded the case to the Division of Administrative Hearings on October 2, 1996. On October 25, the case was noticed for final hearing on January 30, 1997, but subsequently rescheduled to March 13, 1997 at the request of the Department.

The case was heard on March 13, 1997. The Petitioner, Clarence Adams, Dennis Adams and Ray Sheffield testified and introduced two exhibits into the record. The Department presented the testimony of Charles Maloy, C. Yvonne MacDonald, and John Garner, and introduced eight exhibits into the record.

Based upon the stipulations agreed to by the parties, the issue at hearing changed from whether the subject sign was in violation to whether the subject sign could be permitted as a

non-conforming sign. The Department would have had the burden to show that the sign was in violation; however, Mr. Adams has the

burden to show that the sign qualifies for permitting as a non- conforming sign.

Subsequent to the hearing, a transcript was ordered and both sides prepared proposed findings that were read and considered.

FINDINGS OF FACT

1. On August 5, 1996, the Department issued a notice of Violation of an illegally erected sign to Clarence E. Adams. The sign in question was located 9.240 miles south of the line between Georgia and Florida on real property that is now and always has been zoned agricultural. The property upon which the sign is located was purchased by Clarence Adams and his brother, Dennis C. Adams, in 1976. The sign was on the property when they purchased the property; and, although they did not own the sign, they have derived continually revenue from the rental of the property upon which the sign is located since 1976. The sign has been maintained in it present form since 1976 by its owner(s).

2. The subject sign had never been cited previously by the Department for violation of the outdoor advertising statutes.

3. The subject sign is located at mile post 9.240. The sign is not in the Department’s right of way. The sign is not a danger to the traveling public. The sign is located adjacent to and can be seen from the main traveled way of Interstate 75 which is a federal highway that is open to the public.

4. The current owner, Ray Sheffield, testified and did not claim to have a valid permit. Clarence Adams admitted that he

   had never applied for such a permit. The Department proved by testimony and evidence that the subject sign does not have a valid outdoor advertising permit, and there is no record by the Department that it ever had a valid permit.

5. Clarence Adams proved that the sign was at its current location in 1976 when Adams and his brother purchased the property. Adams proved that a sign was in that location as early as 1975.

6. The Department and the Federal Highway Administration entered into an agreement in 1972 that prohibited the erection of outdoor advertising signs along federal highways in areas zoned agricultural.

7. The Petitioner did not prove that the sign was erected prior to the agreement between the Department and the Federal Highway Administration in 1972.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes (Supp. 1996.

9. The burden of proof in this case is on the party seeking to alter the status quo. In this case, the original issue was whether the subject sign was in violation for having been erected without a permit. Clarence Adams, the owner of the real property upon which the sign is located, did not controvert that issue, and neither did Ray Sheffield, the putative owner of the sign.

   The Petitioner, Clarence Adams, seeks to obtain a permit for the existing sign asserting that it is a non-conforming sign that should be grand-fathered in.

10. Section 479.105, Florida Statutes, sets forth the criteria for grand-fathering a sign. The sign in question meets all the criteria except that provisions which states:

    At any time during the period in which the sign has been erected, the sign would have met the criteria established in this chapter for issuance of a permit.

    
    

11. The burden of proof is upon Clarence Adams to demonstrate that the sign meets the criteria for grand-fathering. The key in this case is when the sign was erected before the Department and the Federal Highway Administration adopted an agreement that would have precluded outdoor advertising signs in areas zoned agricultural along federal highways in January of 1972.

12. The evidence presented establishes the earliest existence of the subject sign in 1975, the year before it was purchased by the Adams’, and three years after the 1972 agreement between the Department and the Federal Highway Administration.

In 1975, the sign would not have met the criteria for being grand-fathered.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department enter a final order finding:

1. That the outdoor advertising sign, which is the subject of the notice of violation and which is located at mile post 9.240, does not have a permit, is in violation of the law, and is not qualified to be grand-fathered in and permitted; and

2. That the owners of the real property upon which the subject sign is located and putative owner of the sign, Ray Sheffield, be directed to remove the sign within 30 days; and

3. That the owners of the real property be advised that, if the subject sign is not removed, the Department will seek an order of a court of competent jurisdiction directing the removal of the sign and assessing costs for obtaining the court’s order and the costs of removing the sign.

DONE and ENTERED this 22nd day of May, 1997, in Tallahassee, Florida.

STEPHEN F. DEAN

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 22nd day of May, 1997

COPIES FURNISHED:

Kenneth Scaff, Jr., Esquire Post Office Drawer O Jasper, Florida 32052

Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, MS-58

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: 96-004676

Orders for Case No: 96-004676