A. W. LEE, JR., APPELLANT,
v.
FLORIDA DEPARTMENT OF TRANSPORTATION, APPELLEE
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The Florida Department of Transportation ordered removal of Lee's outdoor advertising sign based on lack of a current permit and alleged violation of a rule prohibiting enlargement of non-conforming signs. The court reversed, finding the rule lacked statutory authority and that the evidence did not support a finding that the sign was enlarged rather than merely maintained.
The rule lacks statutory authorization for destroying private property for the violation charged, as the Legislature has not empowered the Department to do so. Additionally, the hearing officer's finding that the sign was enlarged, rather than virtually replaced, was insufficient to justify removal under the rule.
[1] An agency rule prohibiting enlargement or significant repair of a non-conforming outdoor advertising structure, and mandating its destruction upon violation, is invalid i…
[2] An agency order requiring the removal of an outdoor advertising structure based on enlargement in violation of a rule is not supported by competent substantial evidence i…
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Join FLexlaw to unlock all legal intelligence“We have reviewed the authorities specified by the Department as the basis for the enactment of this Rule and find no authorization therein expressed. Assuming the Legislature could empower the Department to destroy the private property in question for the violation charged in this case, it has not seen fit to do so.”
Establishes that Rule 14-10.05(1)(m) lacks statutory authority for destruction of private property
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Join FLexlaw to unlock all legal intelligenceLee owned an outdoor advertising structure that existed prior to December 8, 1971, but became non-conforming under the Federal Highway Beautification …
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PER CURIAM.
This cause is before us on appeal from final agency action by order requiring removal of appellant’s outdoor advertising structure on the grounds of (1) no current permit tag and (2) enlargement of sign in violation of Rule 14 — 10.05(1)(m). As to ground (1), this Court’s opinion in Outdoor Advertising v. DOT, 366 So. 2d 114 (1979),1 applies and the sign owner’s application for a permit should have been granted. As to ground (2), appellant contends that Rule 14-10.05(l)(m), is without supporting statutory authority and that the order is not supported by competent substantial evidence establishing the sign was enlarged. We agree and reverse the order below.
Rule 14-10.05(l)(m) prohibits enlargement or significant repair to a sign which was in existence prior to December 8, 1971, but subsequently became “non-conforming” under the Federal Highway Beautification Act because of the sign’s proximity to the interstate highway system.2 The rule in question purports not only to prohibit enlargement or repair, but to require destruction of the entire structure on proof of violation. We have reviewed the authorities specified by the Department as the basis for the enactment of this Rule3 and find no authorization therein expressed. Assuming the Legislature could empower the Department to destroy the private property in question for the violation charged in this case, it has not seen fit to do so. This case is to be distinguished from the Court’s decision in White Advertising v. DOT, 364 So. 2d 104 (1978), where in this Court affirmed removal of a sign found to have been erected in violation of Florida Statute § 479.114 by virtue of extensive alterations making the structure in effect a new sign. The hearing officer’s finding in White was that “the subject sign is virtually a replacement of the original.” No such finding was made in this case. The conclusion here was that the sign had been enlarged in violation of Rule 14-10.05(m). In White the order states: “The validity and effect of Rule 14-10.05(m) was not considered in reaching the . . . conclusion.”
Accordingly, the order below is REVERSED and the cause REMANDED for further proceedings consistent herewith..
BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur. . Accord, Walker v. DOT, 366 So. 2d 96 (1979).
. Rule 14-10.05(l)(m), Rules of the Department of Transportation Supp.No. 79: “No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
(m) Which became nonconforming under the Law and is enlarged, rebuilt, reerected or altered in any manner except normal routine maintenance. For the purpose of this procedure, normal routine maintenance is defined as annual painting and/or replacement of deteriorated structural material, so long as the cost to replace new the deteriorated structural material does not exceed 5% of the depreciated value of the sign.”
. “Specific Authority 20.05(5), 120.53(1), 334.-02(6) F.S. Law Implemented 479.02, 479.05, 479.11, 479.10 and 479.16 F.S., Agreement between Governor and U. S. Department of Transportation.”
. Fla.Stat. § 479.11(1): “No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
(1) Within 600 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lyman Walker, III v. State, 366 So. 2d 96 (Fla. 1st DCA 1979)…the sign, under Florida Statute § 479.24(2). . White Advertising v. State Department of Transportation, Case # 11-90; Peterson Outdoor Advertising v. State Department of Transportation, Case # 11-88; A. W. Lee v. State Department of Transportation, 366 So. 2d 116; and Outdoor Advertising Art v. State Department of Transportation, 366 So. 2d 114. . Florida Statute § 479.07(1) and (4), amended effective January 1, 1975, to require DOT issue a permanent metal tag to be affixed by owner to each sign, states tha…
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Outdoor Advertising ART, Inc. v. Fla. Dep't of Transp., 366 So. 2d 114 (Fla. 1st DCA 1979)…ing C. J., and MILLS and BOOTH, JJ., concur. . White Advertising v. State Department of Transportation, Case # 11-90; Peterson Outdoor Advertising v. State Department of Transportation, Case # 11-88; A. W. Lee v. State Department of Transportation, 366 So. 2d 116, and Walker v. State Department of Transportation, 366 So. 2d 96. . Fla.Stat. § 479.07(2) provides in material part: “. . . Every application for permit shall be accompanied by payment of the fee for each advertising structure . . included in the…
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3M Nat'l Advertising Co. v. City OF Tampa Code Enf't Bd., 587 So. 2d 640 (Fla. 2d DCA 1991)…unty v. McClurken, 37 Cal.2d 683, 234 P. 2d 972 (1951). Few if any Florida cases address the appropriate remedy when a lawful nonconforming use is subsequently modified or altered. Perhaps the leading case is Lee v. Florida Dept. of Transportation, 366 So. 2d 116 (Fla. 1st DCA 1979), in which departmental rules, like the Tampa city code, forbade enlargement or “significant repair” of nonconforming billboards. Those rules further required demolition of the entire structure upon proof of violation. The appella…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lyman Walker, III v. State, 366 So. 2d 96 (Fla. 1st DCA 1979)
- Outdoor Advertising ART, Inc. v. Fla. Dep't of Transp., 366 So. 2d 114 (Fla. 1st DCA 1979)
- White Advertising Int'l v. Fla. Dep't of Transp., 364 So. 2d 104 (Fla. 1st DCA 1978)