Lee v. Florida Department of Transportation

District Court of Appeal of Florida

Lee v. Florida Department of Transportation

366 So. 2d 116, 1979 Fla. App. LEXIS 13947

CourtDistrict Court of Appeal of Florida

DecidedJanuary 4, 1979

DocketNo. KK-134

StatusPublished

Cited by4 cases

This text of 366 So. 2d 116 (Lee v. Florida Department of Transportation) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lee v. Florida Department of Transportation, 366 So. 2d 116, 1979 Fla. App. LEXIS 13947 (Fla. Ct. App. 1979).

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Opinion

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.

[117]*117This 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.

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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.

[117]*117This 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.

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