98-004456 National Advertising Company vs. Department Of Transportation Status: Closed Recommended Order on Friday, June 25, 1999.

Summary: Petitioner failed to establish facts to show entilement to sign permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 98-4456T

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on March 16, 1999, in Dade City, Florida.

APPEARANCES

For Petitioner: Jennifer Sloane, Esquire

Livingston and Reilly, P.A.

Post Office Box 2151

Orlando, Florida 32802

For Respondent: Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Did the Department of Transportation (Department) properly

issue the Notice of Denied Application pursuant to Chapter 479,

Florida Statutes, and Rule 14-10.004(1)(d), Florida

Administrative Code?

PRELIMINARY STATEMENT

On July 22, 1998, National Advertising Company (National)

submitted a permit application to the Department for the south

facing of an existing nonconforming outdoor advertising sign

structure located at the interchange of Interstate 75 (I-75) and

State Road 52 (SR 52) in Pasco County, Florida, previously

permitted by the Department for the north facing some time in the

early 1970's. On July 22, 1998, the Department issued the Notice

of Denied Application to National for the following reasons:

1. the existing nonconforming sign structure is located within

500 feet of restricted interchange or intersection at grade,

citing Rule 14-10.006(1)(b)5, Florida Administrative Code; and

2. National failed to submit local governmental approval along

with its permit application.

National filed a petition on August 21, 1998, challenging

the Notice of Denied Application and requested a formal hearing.

By letter dated October 7, 1998, the Department referred the

matter to the Division of Administrative Hearings (Division) for

the assignment of an Administrative Law Judge and for the conduct

of a formal hearing. This matter was initially scheduled for

hearing on March 15, 1999, but was rescheduled for

March 16, 1999, to accommodate the undersigned's schedule.

At the hearing, National presented the testimonies of Mike

Palouian, Susan L. Rosetti, and Juanice Hagan. National's

Exhibits numbered 1-9 were admitted in evidence. The Department

did not offer any oral testimony. The Department's Exhibits

numbered 1-3 were admitted in evidence. Chapter 14-10, Florida

Administrative Code, and Section 120.60, Florida Statutes, were

officially recognized.

A Transcript of this proceeding was filed with the Division

on March 29, 1999. At the close of the hearing, the parties

requested an extension of time to file their proposed recommended

orders which was granted with the understanding that any time

constraint imposed under Rule 28-106.216(1), Florida

Administrative Code, was waived in accordance with Rule 28-

106.216(2), Florida Administrative Code. The parties filed their

proposed recommended orders under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. The sign structure which is the subject matter of this

proceeding was originally erected prior to November 11, 1971, at

the intersection of I-75, an interstate highway, and SR 52, in

Pasco County, Florida. Both I-75 and SR 52 are roadways under

the Department's jurisdiction for purposes of enforcing and

regulating outdoor advertising sign structures. The original

sign structure had one sign facing which faced north.

2. The interchange of I-75 and SR 53 is located outside of

the incorporated area of any town or city.

3. The Federal-State Agreement (Agreement) which provides

the Department with the authority to regulate outdoor advertising

was adopted in 1972.

4. When the Agreement was adopted, it contained a rule

which provided, inter alia , that any sign structure located

outside of the incorporated area of any town or city could not be

located adjacent to or within 500 feet of a restricted

interchange or intersection at grade. That rule has now been

codified in Rule 14-10.006(4)(e), Florida Administrative Code.

5. At the time it was given authority to regulate outdoor

advertising, the Department took an inventory of all existing

sign structures. Those existing sign structures that did not

conform to the rules set forth in the Agreement were

"grandfathered in" as legally nonconforming signs and allowed to

remain at their current locations.

6. National's sign structure, which is the subject matter

of this proceeding, contained only one sign facing which faced

north. National's sign was "grandfathered in" as a legally

nonconforming sign structure. National's sign was nonconforming

because it was not located within an incorporated town or city

and was located adjacent to or within 500 feet of a restricted

interchange.

7. Some time prior to l973, National's sign was issued

state permit number 1417-10. In 1973, National's sign permit

number was changed to AU061-35 which is the permit number

currently assigned to National's sign structure.

8. On July 9, 1998, National submitted an application for

an outdoor advertising sign permit for a proposed sign facing,

which was to face south, to be constructed on the existing

nonconforming sign structure under permit number AU061-35.

National's existing permitted sign structure has a sign facing

which faces north and is located at the intersection of I-75 and

SR 52 in Pasco County, Florida. The addition of a south sign

facing to the existing legally nonconforming sign structure would

create a back-to-back sign structure.

9. The application as submitted by National was incomplete

in that National failed to include in its application proof of

local government approval. At the hearing, National produced

proof of local government approval for the south side facing

requested in the permit application.

10. On July 22, 1998, the Department issued a Notice of

Denied Application to National citing the following reasons for

the denial:

14E Site is within 500 feet of a restricted

interchange or intersection at grade (S. 14-

10.006(1)(b)5., FAC).

* * *

14I Other -- No local government approval.

The permit application did not include local government approval

at the time it was submitted to the Department. However, the

Department did not return the permit application as being

incomplete. Subsequently, National obtained local government

approval.

11. National's existing legally nonconforming sign

structure is located within the restricted area of the I-75 and

SR 52 interchange in that it is located adjacent to the on-ramp

carrying traffic from SR 52 to the southbound lanes of I-75 and

is within 500 feet of the interchange.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1), Florida Statutes.

13. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, National

must establish facts to show its entitlement to the permit by a

preponderance of the evidence. Section 120.57(1)(h), Florida

Statutes. National has failed to meet its burden to show

entitlement to the permit.

14. Chapter 479, Florida Statutes, gives the Department the

authority to administer, regulate, and enforce outdoor

advertising within the controlled areas of jurisdictional

roadways.

15. Section 479.01(4),(6),(14),(17),(19),(20),and (21),

Florida Statutes, provides as follows:

(4) "Controlled area" shall mean 660 feet or

less from the nearest edge of the right-of-

way of any portion of the State Highway

System, interstate, or federal-aid primary

system and beyond 660 feet of the nearest

edge of the right-of-way of any portion of

the State Highway System, interstate, or

federal-aid primary system outside an urban

area.

* * *

(6) "Erect" means to construct, build,

raise, assemble, place, affix, attach ,

create, paint, draw, or in any way bring into

being or establish; but it does not include

any of the foregoing activities when

performed as an incident to the change of

advertising message or customary maintenance

or repair of a sign.

* * *

(14) "Nonconforming sign" means a sign which

was lawfully erected but which does not

comply with the land use, setback, size,

spacing, and lighting provisions of state or

local law, rule, regulation, or ordinance

passed at a later date or a sign which was

lawfully erected but which later fails to

comply with state or local law, rule,

regulation, or ordinance due to changed

conditions.

* * *

(17) "Sign" means any combination of

structure and message in the form of an

outdoor sign, display, device, figure,

painting, drawing, message, placard, poster,

billboard, advertising structure,

advertisement, logo, symbol, or other form,

whether placed individually or on a V-type,

back-to-back, side-to-side, stacked, or

double-faced display or automatic changeable

facing, designed, intended, or used to

advertise or inform, any part of the

advertising message or informative contents

of which is visible from any place on the

main-traveled way. The term does not include

an official traffic control sign, official

marker, or specific information panel

erected, caused to be erected, or approved by

the department.

* * *

(19) "Sign face" means the part of the sign,

including trim and background, which contains

the message or informative contents.

(20) "Sign facing" includes all sign faces

and automatic changeable faces displayed at

the same location and facing the same

direction.

(21) "Sign structure" means all the

interrelated parts and material, such as

beams, poles, and stringers, which are

constructed for the purpose of supporting or

displaying a message of informative contents.

(Emphasis furnished)

16. Section 479.02(7), Florida Statutes, provides as

follows:

479.02 Duties of the Department.--It shall

be the duty of the department to:

* * *

(7) Adopt such rules as it deems necessary

or proper for the administration of this

chapter, including rules which identify

activities that may not be recognized as

industrial or commercial activities for

purposes of determination of an area as an

unzoned commercial or industrial area.

In accordance with its duty to adopt rules for the administration

of Chapter 479, Florida Statutes, the Department adopted Chapter

14-10, Florida Administrative Code.

17. Rule 14-10.006(4)(e), Florida Administrative Code,

provides as follows:

(e) On the interstate highway system outside

incorporated towns and cities, no permit may

be granted for a sign structure located

adjacent to or within 500 feet of an

interchange, intersection at grade, or rest

area. Said 500 feet shall be measured along

the interstate in the direction leading away

from the crossroad from the beginning of

pavement widening at the exit from the main-

traveled way or the end of pavement widening

at the entrance to the main-traveled way on

an interstate highway. The point of pavement

widening at an exit ramp or entrance ramp

shall be the point farthest from the

crossroad where the outside edge of the ramp

pavement first intersects with the outside

edge of the pavement on the main-traveled

way. (Emphasis furnished)

National is requesting a permit to place a south facing on a sign

structure that has already been determined to be a legally

nonconforming sign structure because the sign structure is

located outside of any incorporated town or city and is adjacent

to and within 500 feet of the interchange of I-75 and SR 52.

18. Rule 14-10.007(1)(a), Florida Administrative Code,

provides in pertinent part as follows:

(1) The following shall apply to

nonconforming signs:

(a) A nonconforming sign must remain

substantially the same as it was as of the

date it became nonconforming . Reasonable

repair and maintenance, including change of

advertising message, is permitted and is not

a change which would terminate nonconforming

rights. . . . (Emphasis furnished)

The balance of Rule 14-10.007(1)(a), Florida Administrative Code,

list examples of modification to existing sign structures none of

which are applicable to this situation. However, adding the

south sign facing to the legally nonconforming sign structure

would be a considered a substantial change to that sign structure

as it existed on the date it was determined to be a legally

nonconforming sign structure.

19. Section 479.07(3)(a), Florida Statutes, provides as

follows:

(3)(a) An application for sign permit must

be made on a forms prescribed by the

department, and a separate application must

be submitted for each permit requested. A

permit is required for each sign facing.

(Emphasis furnished)

National submitted a permit application for the south sign

facing.

20. Rule 14-10.004(d)3., Florida Administrative Code,

provides as follows:

(d) The department will act on permit

applications in order of the date of receipt

of a complete application.

* * *

3. Incomplete permit applications will be

returned to the applicant. (Emphasis

furnished)

Although National's application was considered incomplete by the

Department, it was not returned to National because the

Department made the determination that National's permit

application would have been denied regardless of its

completeness.

21. National contends that the Department violated its own

rule when it failed to return the permit application to National

as being incomplete. Although the Department may not have

followed its own rule when it failed to return the permit

application as incomplete, no purpose would have been served by

returning the permit application as incomplete, since the basis

for the denial of the permit could not have been cured by

National resubmitting a complete permit application.

22. National also contends that Rule 14-10.006(1)(b)5,

Florida Administrative Code, cited as authority for not granting

National's permit application did not exist at the time the

permit application was denied and therefore National was not

given proper notice. Apparently, that rule was renumbered as

Rule 14-10.006(4)(e), Florida Administrative Code, and it does

not appear that National was prejudiced by the Department's

incorrect citation of the rule. However, the Department should

take advantage of having been advised of this error and review

all its forms that were affected by this rule change or any other

rule change.

23. Furthermore, National contends that the Notice of

Denied Application was insufficient in that it did not list as a

basis for its denial the prohibition against making changes to a

legally nonconforming sign structure when such changes could be

considered substantial when compared to the sign structure as it

existed on the day it was determined to be legally nonconforming.

It appears that National was able to adequately present its case

in this regard notwithstanding that National was not given notice

of this basis for denial at the time it received the Notice of

Denied Application. It does not appear that National was

prejudiced by the Department's failure to put National on notice

of all the Department's reasons for denial.

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 a sign

permit at the location requested in the permit application

previously filed by National.

DONE AND ENTERED this _ 25th _ day of June, 1999, in

Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this _ 25th _ day of June, 1999.

COPIES FURNISHED:

Thomas F. Barry, Secretary

ATTN: James C. Myers,

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

Jennifer Sloane, Esquire

Livingston and Reilly, P.A.

Post Office Box 2151

Orlando, Florida 32802

Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.