STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-706T

) PETERSON OUTDOOR ADVERTISING, ) VOLUSIA COUNTY, 1-4, EAST, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held at the Department of Transportation Office, 719 South Boulevard, Deland, Florida, at 4:00 P.M. on April 27, 1977, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: William Rowland, Esquire

115 East Morse Boulevard Winter Park, Florida 32789

ISSUE

Whether the Department of Transportation should is sue a permit under Chapter 479, Florida Statutes, for the subject outdoor advertising sign.

FINDINGS OF FACT

1. An outdoor advertising sign located 9.85 miles east of Volusia County line on Highway 1-4, East, with copy presently reading, "Four Seasons" was cited for violation by the Petitioner, Department of Transportation. Said violation notice was sent to the Respondent, Peterson Outdoor Advertising Company. The sign is located approximately 1200 feet north of State Road 430-A on the east side of 1-4 facing south and bears a 1974 state permit No. 6273-10.

   
   

2. It is not disputed that this sign was owned by Rivers Advertising Company and sold by Rivers Advertising Company by Bill of Sale dated June 21, 1974 to the Petitioner, Department of Transportation.

   
   

3. The sign did not conform to the requirements of Chapter 479, Florida Statutes, as evidenced by memorandum dated May 1, 1973, Department of

   Transportation files, Petitioner's Exhibit 1, and upon its sale to the Department was to have been removed by the Department from its location. The payment for the sign amounted to $4,975 which was paid by check to the owner, Rivers Advertising Company.

   
   

4. Rivers Advertising Company had leased the real property on which subject sign stood from the property owner, Mr. Gene Berna. Mr. Berna said that Rivers Advertising Company had not paid under their lease agreement at the time that the Petitioner, Department of Transportation, sought to remove the sign subsequent to its purchase from Rivers on June 21, 1974 and would not let the maintenance crew remove the structure.

   
   

5. Dandy Signs claimed ownership of the sign by virtue of the fact that Gene Berna sold it to then and that it purchased a renewal 1974 permit tag Number 6273-10-74 and affixed it to the structure.

   
   

6. Dandy Signs had never made an application for a permit for subject sign but through error of the Petitioner acquired the permit sign attached to subject sign through the inclusion of it in a regular renewal procedure.

   
   

7. Subject sign was not eligible to be permitted under the renewal procedure inasmuch as said sign had been purchased by the State of Florida on June 21, 1974 and Dandy Signs was not eligible for the renewal permit issued because it did not own the sign.

   
   

8. Dandy Signs, claiming ownership for the sign through an agreement with the owner of the property on which the sign was located, then "sold" the subject sign by Bill of Sale to the Respondent, Peterson Outdoor Advertising, by an instrument dated May 27, 1975.

   
   

9. The proposed Recommended Order filed by the Respondent has been examined and considered in the preparation of this order.

   
   

10. The Hearing Officer further finds:

    
    

11. The subject sign is owned by the Petitioner.

    
    

12. The property owner, Gene Berna, had no title to the subject sign. His only interest was as lessor of the real property.

    
    

13. Dandy Signs was on notice that the sign did not belong to the property owner, Gene Berna, and that it belonged to Rivers Outdoor Advertising. Berna told Dandy Signs the subject sign belonged to Rivers.

    
    

14. Dandy Signs should not have requested a renewal permit on a sign not previously owned by it and not purchased from the owner.

    
    

15. The Petitioner erroneously issued a renewal permit on subject sign upon Dandy's representation it was the owner of the sign.

    
    

16. Respondent, Peterson Outdoor Advertising, received no interest in the sign by the alleged Bill of Sale of May, 1975, inasmuch as it did not buy the sign from the owner, the State.

    
    

    CONCLUSIONS OF LAW

17. Section 479.07, Florida Statutes, requires a sign owner to make an application for a permit.

    
    

18. No application for a permit was made by the company from which the Respondent was alleged to have purchased subject sign. The company which made application and was granted a permit sold subject sign to the Petitioner.

    
    

19. The Respondent did not buy subject sign from the owner and received no better title than Dandy Signs which received no title or interest in the sign from the purported sale by the lessor land owner.

RECOMMENDATION

1. Deny the request for a permit.

   
   

2. Remove the subject sign which is owned by the Petitioner and should be removed from the roadside.

DONE and ORDERED this 29th day of July, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

William Rowland, Esquire

115 East Morse Boulevard Winter Park, Florida 32789

Docket for Case No: 76-000706

Orders for Case No: 76-000706