Hancock Advertising, Inc. v. Department of Transp., 88-480

• Decision Date: 26 September 1989
• Docket Number: No. 88-480,88-480
• Parties: 14 Fla. L. Weekly 2285 HANCOCK ADVERTISING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

Page 1086

549 So.2d 1086

14 Fla. L. Weekly 2285

HANCOCK ADVERTISING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.

No. 88-480.

District Court of Appeal of Florida,

Third District.

Sept. 26, 1989.

Papy, Weissenborn & Papy and James McMaster, Miami, for appellant.

Gregory G. Costas and Thomas H. Bateman, III, Orlando, for appellee.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

SCHWARTZ, Chief Judge.

Hancock Advertising, Inc. appeals from a final order of the Department of Transportation (DOT) requiring the removal of an outdoor advertising sign Hancock had erected near the intersection of Interstate 95 (I-95) and State Road 836 (Dolphin Expressway) in the City of Miami. Since the DOT has authority over the sign only if it is located "on" I-95 within the meaning of SECTION 479.07(1), FLORIDA STATUTES (1987)¹, see § 479.07(9)(a)1., ² the dispositive issue is whether that is in fact the case. Contrary to the DOT's position, we hold that it is "on" the expressway rather than the interstate and therefore reverse the decision below.

The sign in dispute is the easterly section of a two part billboard which lies slightly to the west of and parallel to I-95 and to the north and perpendicular to State Road 836. We are concerned with the easterly-facing half of the sign, that is, the one which motorists traveling west on 836 face head on. While it is visible from I-95, those going either north or south would have to turn their heads to view the message. The following diagram, oversimplified but sufficient for the purpose, illustrates the situation:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After a complicated process in which a representative of the DOT initially indicated that no permit was required, Hancock erected the sign in reliance on that representation, and a hearing examiner subsequently determined that the sign was un authorized, the secretary of the DOT held in the order on review that:

[B]ecause the subject sign is immediately adjacent to Interstate 95, visible from the main-traveled way of Interstate 95 and erected without a permit, the subject We do not agree.

sign should be removed pursuant to Section 479.105(1), Fla.Stat. (1985).

Contrary to the DOT's apparent conclusion that the issue turns on whether the billboard is "adjacent to" or "visible from" I-95, ³ the statutory authority to regulate the sign, since it is inside the limits of the City of Miami, depends entirely on whether it is "on" I-95 as opposed, it follows, to being on SR-836. § 479.07(1), Fla.Stat. (1987). Since there is no statutory definition of the word "on," we must exercise our judicial responsibility to resolve the issue ourselves. L.B. Price Mercantile Co. v. Gay, 44 So.2d 87, 90 (Fla.1950). In doing so by holding that the sign is not on I-95, we primarily apply one of the most basic rules of statutory construction, which is peculiarly applicable here: that a legislative word, including a deceptively simple one like "on," must be given its ordinary and commonly accepted meaning, 49 Fla.Jur.2d Statutes § 123 (1984), as it is used in the particular statutory context. ⁴ See 49 Fla.Jur.2d Statutes § 123; 73 Am.Jur.2d Statutes § 213 (1974).

In the present setting of a street location, it seems clear that when one speaks in ordinary usage of a structure being "on" a particular street, he means the roadway to which it fronts; that is, the one which has direct physical access to the structure in question. He does not mean a merely intersecting street or boulevard even if the building runs parallel to that roadway a short distance away and is peripherally visible to those upon it. Thus, if the issue were whether the building indicated on the

following map is "on," in the sense of having an address "on," 1st St. or 3rd Ave., no one would question that the structure is "on" the street.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

See The American Heritage Dictionary (2d College ed. 1982) ("on ... 1. Used to indicate: ... c. Location at or along: a house on the beach. d. Proximity: a town on the border "). The present issue requires the same conclusion.

Our view is supported by the practical construction which has in fact been adopted by the industry which we are entitled to consider in our resolution of the statutory interpretation problem before us. 49 Fla.Jur.2d Statutes § 116; see Calio v. Equitable Life Assurance Soc'y, 169 So.2d 502 (Fla. 3d DCA 1964). The record shows that, consistent with the common practice in the business, the particular sign involved here was treated indeed as being located "on" State Road 836, and not Interstate 95. Specifically, the traffic count and the charges made for advertising on the billboard were computed according to the number of vehicles directly facing the sign driving on State Road 836, without regard to those who could see the sign only out of the corner of their eyes while traveling on Interstate 95. There is no reason why our view of § 479.07(1) should differ from those in the day-to-day business of dealing with its subject matter.

In sum, we hold that no matter what its proximity to or visibility from the Interstate, the advertising sign in question can be said only to be "on" State Road 836, and not "on" I-95.

The final order under review is therefore

Reversed.

NESBITT, J., concurs.

BASKIN, Judge (dissenting).

Hancock Advertising, Inc., [Hancock] appeals a final order issued by the Department of Transportation [DOT] requiring the removal of Hancock's outdoor advertising sign. I would hold: 1) the sign is on the interstate highway and requires a permit, § 479.07(9)(a)1, Fla.Stat. (1987), and 2) DOT's failure to measure the distance between signs in the prescribed manner prevents it from finding that Hancock's sign was less than 1500 feet from another sign. I would reverse the order for removal and remand for the following reasons:

In 1985, Hancock applied for a permit for a v-shaped, two-sided, outdoor advertising sign to be located at the intersection of Interstate 95 [I-95] and State Road 836. The district supervisor rejected the application. He informed Hancock that he was not certain whether the sign would be visible to users of the main-traveled way of I-95 and that if it were visible only to drivers on State Road 836, a permit would not be required. In 1987, Hancock erected the easterly sign facing I-95 without obtaining a permit. DOT issued a notice of violation alleging that the sign did not have the requisite permit and did not comply with statutory spacing requirements. See §§ 479.07(1), 479.07(9)(a)(1), Fla.Stat. (1987). At the conclusion of an administrative hearing, the hearing officer, entered Findings of Fact in the Recommended Order:

FINDINGS OF FACT

1. Hancock Advertising Agency owns a sign which is located immediately adjacent to Interstate-95 in the City of Miami

at the point where State Road 836 and Interstate-95 meet. The structure and its advertising message is an outdoor advertising sign as defined in Chapter 479, Florida Statutes. The sign is visible from the main traveled way of Interstate-95. ¹

2. Interstate-95 is part of the interstate highway system as defined in Section 479.01(7), Florida Statutes.

3. No State outdoor advertising permit has been issued for the sign face which is the subject of this litigation.

4. The Hancock Advertising sign is only about 443 feet from the nearest legally permitted sign.

5. Hancock Advertising received proper notice from the Department of Transportation of the outdoor advertising violations by mail and by posting a notice of violation on the sign.

The secretary for DOT incorporated these findings in the Final Order. The secretary also found that "the evidence clearly shows that the structure is located 10-12 feet from the right of way of I-95.... [B]ecause the subject sign is immediately adjacent to Interstate 95, visible from the main-traveled way of Interstate 95 and erected without a permit, the subject sign should be removed...."

Hancock argues that DOT did not prove that the sign was "on an interstate highway," § 479.07(9)(a); that the undefined phrase "on an interstate highway" renders that section unconstitutionally vague and ambiguous; and that the inspector did not properly measure the distance between Hancock's sign and the nearest legal sign. DOT contends that it proved that the sign is on the interstate highway; that the sign was erected without a permit; and that the sign is not at least 1500 feet from the nearest legal sign on the same side of the highway.

At the outset, I note that "agency determinations with regard to a statute's interpretation will receive great deference in the absence of clear error or conflict with legislative intent." McDonald's Corp. v. Department of Transp., 535 So.2d 323, 325 (Fla. 2d DCA 1988) (quoting Tri-State Systems, Inc. v. Department of Transp., 491 So.2d 1192, 1193 (Fla. 1st DCA 1986)); § 120.68(9), Fla.Stat. (1987); see Gay v. Canada Dry Bottling Co., 59 So.2d 788 (Fla.1952); Cohen v. School Bd. of Dade County, 450 So.2d 1238 (Fla. 3d DCA 1984), and "this court may not substitute its judgment for that of the agency as to disputed findings of fact or as to the weight of the evidence. Agency determinations may be set aside only if the court finds that the agency's action depends on a finding of fact not supported by competent evidence in the record." Gershanik v. Department of Professional Regulation, Bd. of Medical Examiners, 458 So.2d 302 (Fla. 3d DCA 1984), review denied, 462 So.2d 1106 (Fla.1985); § 120.68(10), Fla.Stat. (1987).

Chapter 479, Florida Statutes (1987), provides for the regulation of outdoor advertising signs adjacent to designated highways in Florida. § 479.02(2), Fla.Stat. (1987); see Fla.Admin.Code, Rule 14-10.001(1), 14-10.009; see also T & L Management, Inc. v. Department of Transp., 497 So.2d 685, 686 (Fla. 1st DCA 1986); Hammond v. Department of Transp., 493 So.2d 33 (...