STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-426T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before the undersigned Hearing Officer on May 20, 1976.

APPEARANCES

For Petitioner: Frank H. King, Esquire,

For Respondent: William D. Rowland, Esquire,

Having considered all testimony and evidence presented in this matter, the Hearing Officer enters the following:

FINDINGS OF FACT

1. The Department of Transportation cited National Advertising Company for the maintenance of eight (8) outdoor advertising signs without current permit tags in violation of spacing requirements. The subject signs are listed on Exhibit 1 attached hereto and are owned and maintained by Respondent. The subject signs are located along I-95 in the vicinity of Orlando, Florida.

   
   

2. The subject signs had valid county tags for 1972. The subject signs had no tags for 1973, but by agreement between Respondent and Petitioner this lack of 1973 tags has been disregarded.

   
   

3. In the fall of 1974 Petitioner issued Respondent county tags for the subject signs. When affixing these tags to the signs Respondent discovered that there was some confusion over whether the signs were in the county or were in the city limits of Orlando. Respondent went to the City offices and asked if the signs were in the city limits and was told that the City did not know. Respondent then went to the County offices and was told that the signs were in the city. Respondent them communicated this information to Mr. Kennedy, an employee of the Department of Transportation in the DeLand office who agreed that the tags would not be put on the subject signs unless it was determined at some later date that the signs were actually located in the county and not in the city. At the time of this agreement Respondent was in possession of the 1974 county tags and was prepared to affix then to the subject signs. Because of the agreement however, the tags were not affixed to the subject signs.

4. Confusion persisted over the question of whether the signs were located inside or outside of the city limits. In the fall of 1975, Respondent submitted a permit application for annual renewal for the subject signs requesting city tags. Petitioner granted this application and in late 1975 issued city tags for the subject signs. These tags have since been affixed to the subject signs and remain there at the time of this hearing.

   
   

5. Representatives of Petitioner visited the Orange County Zoning Department on February 11, 1976 in attempt to determine whether the subject signs were located in the county or in the city. Petitioner's representatives determined that the signs were located in the county.

   
   

6. During 1974 and 1975 there was a great deal of confusion on the part of both Petitioner and Respondent concerning the question of whether the subject signs were in Orange County or in the City of Orlando. Respondent, in good faith, diligently attempted to resolve the confusion. It appears however, that Petitioner and Respondent were not able to resolve the confusion until early 1976 and shortly before this hearing.

   
   

7. Respondent made no application for 1976 permits for the subject signs before May 13, 1976.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this cause.

   
   

9. In 1974 Florida law did not require permits for outdoor advertising structures inside an incorporated city or town. Subsection 479.07, Florida Statutes 1973. Respondent purchased county permit tags for 1974 from the Department of Transportation, Petitioner, and was prepared to affix them to the subject signs. They were not so affixed only after Petitioner and Respondent agreed that until the confusion surrounding the location of the signs with regard to the city and county limits was resolved, the permit tags would not be affixed.

   
   

10. Subsection 479.07(1), Florida Statutes 1975, which became effective January 1, 1975, states that:

no person shall . . . operate . . . any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefore from the department and paying the annual fee therefor..."

Thus, it can be seen that Florida law requires a permit and annual fee for an outdoor advertising sign when it is located outside any incorporated city or town. The same subsection goes on to state that:

"[a]ny person who shall... operate... any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on

a form provided by the department."

This provision requires those outdoor advertising signs along a federal aid primary highway or interstate highway, as is the case here, within an incorporated city or town to have a permit. There is no requirement that an annual fee be paid. Subsection 479.07(4), Florida Statutes 1975, provides that:

"[f]or every permit issued the department shall deliver to the applicant a serially numbered permanent metal permit tag..."

The same subsection goes on to say that:

"[p]ermit tags issued for use in 1974 and thereafter shall be considered permanent permit tags and shall be maintained on the structure until returned to the department for cancellation."

The statute requires these permit tags to be affixed to the signs for which they have been issued and further provides that operation of a sign without a currently valid permanent permit tag shall be prima facie evidence that the same has been constructed or erected and is being operated in violation of Chapter

479. In the case at hand, Respondent applied in late 1975 for permits for the subject signs. The permits applied for were for signs located within an incorporated city or town. Petitioner, Department of Transportation, granted this application by issuing to Respondent permanent permit tags for the subject signs which tags were of the type issued by Petitioner for advertising signs located within an incorporated city or town. These tags have been since, and are presently, affixed to the subject signs. It does not appear from Chapter 479, Florida Statutes 1975, that Respondent is required to apply annually for a permit tag for outdoor advertising signs located within an incorporated town or municipality.

11. It is apparent that Petitioner, Department of Transportation, was under the same misapprehension as Respondent that the subject signs were located within the city limits of Orlando and not in Orange County. Why else would Petitioner, Department of Transportation, less than a year ago, issue permit tags for the subject signs of the type issued for signs located within an incorporated town or city. In light of Respondent's diligent and good faith efforts to determine the location of the signs with reference to the city-county line, and in light of Petitioner's agreement with that determination as late as the fall of 1975, Petitioner may not now say that Respondent is in violation of the law by having city permit tags rather than county permit tags. As early as 1974 Respondent asked Petitioner which tag was needed for the subject signs, a city tag or a county tag? Petitioner's answer to that question was at best vague until the fall of 1975 when, upon application, Petitioner issued city tags for the subject signs.

RECOMMENDED ORDER

Therefore, it is RECOMMENDED that the alleged violations by Respondent are without merit and should be dismissed.

DONE and ORDERED this 14th day of September, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

William D. Rowland, Esquire

P. O. Box 539

Winter Park, Florida

Docket for Case No: 76-000426

Orders for Case No: 76-000426