STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2400T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2402T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida, on December 7, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert M. Burdick, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Aileen M. Reilly, Esquire

Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151

STATEMENT OF THE ISSUE

The issue for consideration is whether the Respondent's signs, bearing permits numbers AX762 and AX782, respectively, located adjacent to U.S. Highway 41 in Manatee County, Florida, be removed for the reasons set forth in the Department's Notices of Violation dated March 15, 1999.

PRELIMINARY MATTERS

By Notices of Violation dated March 25, 1999, the Department of Transportation (Department) advised Respondent, National Advertising Company that it intended to revoke the advertising permits relating to two signs located adjacent to U.S. Highway 41 in Manatee County, Florida, because each sign had been void of advertising matter for a period of 12 months or longer.

Respondent requested a formal hearing in each case, and this hearing followed.

At the commencement of the hearing, counsel moved that the two cases be consolidated for hearing and that one Recommended Order, pertaining to both cases, be issued. It was so ordered. At the hearing, Petitioner presented the testimony of Brenda K. Hall, the Department's District I outdoor advertising administrator; John M. Lowry, an outdoor advertising inspector for the Department's at District I; and Eugene F. Casey, currently retired, but formerly an outdoor advertising inspector for the Department's District I. Petitioner also introduced Petitioner's Exhibits 1 through 4, 6, and 8 through 12.

Petitioner's Exhibit 5 was offered but rejected. Petitioner's Exhibit 7 for identification was withdrawn by counsel.

Respondent called no witnesses and presented no evidence.

Counsel for Petitioner requested the undersigned officially recognize Chapters 14-10.007 and 14-10.009, Florida Administrative Code, and 23 CFR, Section 750.707. The matters in issue were officially recognized over Respondent's counsel's objection to the last-cited provision. A Transcript of the proceedings was filed December 16, 1999. Subsequent to the receipt thereof, counsel for both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Transportation (Department) was the state agency responsible for the licensing and regulation of advertising along the highways of this state. Respondent, National Advertising Company, is a private company engaged in the outdoor advertising business in Florida. It owns numerous advertising signs placed at various locations adjacent to the roads in the Federal Highway System as well as state roads in this state.

2. On March 11, 1998, Eugene Casey, an outdoor advertising inspector with the Department's Bartow, Florida, office, drove past a sign owned by Respondent and located on U.S. Highway 41 approximately 950 feet south of 73rd Street East in Palmetto,

   Manatee County, Florida. His examination of the sign in question revealed that it had no advertising copy on it, and it bore the permit tag with number AX782, which was issued to the Respondent. He also noted that the sign was closer than permitted to an adjacent sign, being only 408 feet away. This adjacent sign bore the permit tag number AX780, also issued to Respondent. The distance between the signs in question was measured by both Mr.

   Lowry and Mr. Casey. Mr. Lowry measured the distance utilizing a device in his vehicle which, he contends, was accurate to 2 feet in every 1,000 feet. Mr. Casey also used a similar device, but also utilized a walking wheel which he calibrated daily, and which he claims was exactly correct with no error. Even if the vehicle device with its 2-in-1,000 error ration were the only measurement taken, the degree of error is far less than that necessary to make any real difference in the spacing between 782 and 780, a distance of 408 feet. The Department rules require signs to be at least 1,000 feet apart.

3. Mr. Casey also went past the sign in question approximately every two weeks during the succeeding 12 months and on no occasion did the sign display any advertising message. He took a photograph on March 11, September 15, and November 30, 1998, and also on March 24 and July 8, 1999. On none of these occasions had any advertising copy or a message of any nature been placed on the billboard. On the last occasion, he noticed that the face of the signboard had been painted to cover the

   apparent deterioration of the sign face. This deterioration, described as mildew and mold stains in both green and black was definitely not, as counsel for Respondent suggested, the remnants of an advertising message.

4. On March 1, 1998, Mr. Casey also visited the sign bearing permit tag AX762, which was located on US Highway 41 approximately 590 feet north of Palmview Road in Manatee County. This sign was located on property zoned by the county as residential property. Under the rules of the Department, advertising signs may be erected only on property zoned commercial or industrial.

5. As was the case with the previously mentioned billboard, AX782, Mr. Casey visited the site approximately every two weeks during the succeeding year and saw no message painted thereon. He took a photograph of the signboard on March 1, 1998, again on March 11, September 15, and November 30, 1998, and also on

   March 24, 1999. On none of those occasions did the signboard bear any advertising copy.

6. Mr. Casey had no doubt at all that no message offering goods or services, or a public service announcement - in fact, no message of any kind was displayed on either sign. Respondent presented no evidence to indicate an advertising message had been displayed on either billboard during the period in question.

7. Though not a matter properly in issue in this case, the Department established that both signs in question were

   nonconforming signs. The first, AX782, was nonconforming because it did not meet the applicable spacing requirements contained in the agreement between the state and the federal Departments of Transportation. The other, AX 762, was nonconforming because it was not located in an area designated primarily for commercial or industrial use under the county’s comprehensive plan.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

9. Under the provisions of Section 479.02(1), Florida Statutes, the Department is charged with the responsibility to administer and enforce the provisions of the statute and the agreement between the State of Florida and the United States Department of Transportation relating to the size, lighting, and spacing of signs on highways within this state consistent with Title I of the Highway Beautification Act of 1965, and Title 23, United States Code and the regulations promulgated thereunder.

10. The Department has the burden to establish the allegations contained in the citations by a preponderance of the evidence.

11. Title 23 C.F.R., Section 750.707(d)(6), relating to nonconforming signs requires states to limit the length of time during which existing nonconforming signs may remain void of advertising without being removed. Consistent with that

    requirement, the Department adopted Rule 14-10.007(1)(g), Florida Administrative Code, which provides that nonconforming signs which remain void of advertising copy for a period of 12 months or more be deemed abandoned. When this happens, the signs lose their nonconforming status and must be removed.

12. Notwithstanding Respondent’s contention and argument that the Department failed to establish the prior nonconforming status of the signs in question because evidence relating to that issue is hearsay, and that, therefore, it failed to establish an indispensable element of the allegations, the evidence of prior nonconforming status was corroborated by competent non-hearsay evidence. It is also clear that neither sign bore any advertising copy or public interest message for more than 12 months. They have, therefore, lost their nonconforming status, are deemed abandoned, and have become illegal. They must be removed.

RECOMMENDATION

Based on the foregoing Findings of Fact and conclusions of law, it is recommended that the Department of Transportation enter a final order revoking permits AX782 and AX762 and ordering their removal.

DONE AND ENTERED this 12th day of January, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2000.

COPIES FURNISHED:

Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Gerald S. Livingston, Esquire Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151

Orlando, Florida 32802-2151

Thomas F. Barry, Secretary ATTN: James C. Myers

Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

James C. Myers

Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

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: 99-002402

Orders for Case No: 99-002402