STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER ADVERTISING, ) INC., )

)

Petitioner, )

)

vs. ) Case No. 97-4403T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on January 28, 1998, in Pensacola, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Griffin (Qualified Representative) Post Office Box 761

Milton, Florida 32572

For Respondent: Andrea V. Nelson, Esquire

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether Petitioner's application for two state sign permits to place a two-sided outdoor advertising sign on the east side of State Road 291 in Escambia County, Florida should be approved.

PRELIMINARY STATEMENT

By application filed on May 16, 1997, Petitioner, Bill

Salter Advertising, Inc., has sought the issuance of two state sign permits for a two-sided sign on the east side of State Road 291, 0.3 miles south of State Road 290 in Escambia County, Florida. On June 2, 1997, Respondent, Department of Transportation, advised Petitioner that its application had been denied on the ground the "[s]ite is within 500 feet of a restricted intersection or intersection at grade." Petitioner then requested a formal hearing to contest the agency's decision. The matter was forwarded by Respondent to the Division of Administrative Hearings on September 17, 1997, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated October 14, 1997, a final hearing was scheduled on January 28, 1998, in Pensacola, Florida. At final hearing, Petitioner was represented by Robert Griffin, a sales representative for the firm, who also testified on its behalf. In addition, Petitioner presented the testimony of Paul Salter, its vice-president, and it offered Petitioner's Exhibits

1 and 2. Both exhibits were received in evidence. Respondent presented the testimony of Phillip Brown, an inspector in its right-of-way division. Also, it offered Respondent's Exhibits 1-3 which were received in evidence.

The transcript of hearing was filed on February 17, 1998. Proposed findings of fact and conclusions of law were filed by Respondent on February 27, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Bill Salter Advertising, Inc., is an outdoor sign company located in Milton, Florida. Respondent, Department of Transportation (DOT), is the state agency charged with the responsibility of regulating outdoor advertising signs.

2. On May 16, 1997, Petitioner filed an application with DOT seeking two permits to place a two-sided outdoor advertising sign on the east side of State Road 291, 0.3 miles south of State Road 290 in the unincorporated portion of Escambia County, Florida. The proposed location is less than 500 feet north of Interstate 10, a federal interstate roadway with a restricted interchange.

3. On May 30, 1997, DOT issued its Notice of Denied Application in which it denied the application on the ground the proposed sign site was within 500 feet of a restricted interchange or intersection at grade and thus violated an agency rule. The receipt of this notice prompted Petitioner to initiate this proceeding.

4. The proposed sign will be located on the property of a Chevron gasoline station, which is located on the eastern side of State Road 291. Although the sign will be located on State

   Road 291, and it is intended to be visible to persons using that roadway, its message is also visible to persons using Interstate 10.

5. Rule 14-10.006(1)(b)5., Florida Administrative Code, prohibits outdoor advertising signs which are located within the

   restricted area of an interstate ramp in the unincorporated area of a county. A restricted area is defined as being within

   500 feet of an interchange. In this case, the proposed sign location is only 320 feet from the on and off ramp for Interstate

   10 within the unincorporated area of Escambia County. Therefore, the proposed location lies within a restricted area and is prohibited by the rule. To be permittable, Petitioner would have to move its proposed sign location several hundred feet to the east or west.

6. At hearing, Petitioner contended that two other signs have been erected nearby on State Road 291 and have not been cited by DOT as being in violation of the rule. For the sake of fairness, it contends that its application should be approved. The first sign is an on-premise sign for Chuck E Cheese's located on property owned by the University Mall. On-premise signs, however, are regulated by the county and not the state, and therefore DOT has no jurisdiction over the sign. The second sign, one advertising Montana Bar-B-Que and Seafood Buffet, cannot violate the interstate ramp rule because it is located on the west side of the roadway; the entrance and exit ramps for the Interstate 10 interchange are all located on the east side of the roadway.

7. Petitioner also contended that its message is intended to be seen by persons using State Road 291, and not those using Interstate 10. However, DOT has consistently interpreted its

   rule as prohibiting all signs outside incorporated towns and cities, which are located within the restricted area of an interstate ramp, even though the sign facings are not meant to be

   read from the interstate. This interpretation of the rule was not shown to be clearly erroneous, and it is hereby accepted.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (1997).

9. As the party seeking the sign permits, Petitioner bears the burden of proving entitlement to those permits by a preponderance of the evidence. Fla. Dep't of Transportation v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

10. Section 479.07(1), Florida Statutes (1997), provides that a person may not erect an outdoor advertising sign on any portion of the interstate highway system without applying for a state permit. The statute also provides that:

[f]or purposes of this section, "on any portion of the . . . interstate highway system" . . . shall mean a sign located within the controlled area which is visible to any portion of the main-traveled way of such system.

Section 479.01(4), Florida Statutes (1997) defines "controlled area" to mean "660 feet or less from the nearest edge of the right-of-way of any portion of the . . . interstate."

1. Rule 14-10.006(1)(b)5., Florida Administrative Code, provides the following slightly more restrictive spacing criteria for signs within the controlled area:

   5. Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an

   interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main- traveled way on an interstate highway.

   
   

2. The evidence shows that the location of Petitioner's proposed sign is "within five hundred (500) feet of an interchange." This being so, Petitioner's application for two sign permits must be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioner's application for two state sign permits to place a two-sided sign on the east side of State Road 291 in Escambia County, Florida.

DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this day 6th of March, 1998.

COPIES FURNISHED:

Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-00458

Robert Griffin

Bill Salter Advertising, Inc. Post Office Box 761

Milton, Florida 32572

Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Pamela S. Leslie, 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 to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Transportation.

Docket for Case No: 97-004403

Orders for Case No: 97-004403