vs. ) CASE NO. 77-650T
Respondent. )
Pursuant to notice a hearing in the above styled cause was held at the Department of Transportation Office, 719 South Boulevard, DeLand, Florida, at 2:45 P.M. on April 27, 1977, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.
For Petitioner: William D. Rowland, Esquire
For Respondent: Philip S. Bennett, Esquire
Whether the sign of Petitioner, White Advertising International, should be removed by the Respondent, Department of Transportation, for violation of Section 479.07(1) and Section 479.11(2), Florida Statutes, and the rules and regulations promulgated thereunder.
A notice of violation was sent by the Respondent, Department of Transportation, to the Petitioner, White Advertising International, on March 21, 1977, citing an outdoor advertising sign owned by the Petitioner located 1.97 miles west of U.S. #1, State Road 50 E/B with copy "Real Estate Service." The violation noted that the sign violated Section 479.071(1), Florida Statutes, and Rule 14ER77-09 (now Rule 14-10.04) and Section 479.11(2), Florida Statutes, and Rule 14ER77-10, 11 (now Rule 14-10.05 and 14-10.06).
There is no dispute as to the location or copy or ownership of the subject sign. It is not in a zoned business, commercial or industrial area and is outside an urban area. The sign does not conform to the current setback requirements.
The sign has a permit tag dated 1971, the only permit tag on the sign. No application was alleged to have been made for permit or annual fee paid or offered subsequent to 1971 until the application noted in 4, infra.
A sign permit application and annual renewal was processed by White Advertising International dated January 21, 1977. The application was an annual renewal for the year of "19 72-1976." The printed application form stated that, "The signs listed above meet all requirements of Chapter 479, Florida Statutes.
Respondent, by its outdoor advertising section administrator, refused to grant the permit on the grounds that the sign which had been erected prior to the enactment of the current setback regulations and probably in the year 1967 had had no application for permit or annual fee paid since 1971 and therefore having become an illegal sign, no permit could be issued.
The Petitioner sign company introduced into evidence a letter dated February 28, 1977, from Respondent, Department of Transportation, through its property management administrator which indicated that the State had previously contended the subject sign was built on an unplatted street and had to be removed without compensation but that it was discovered such was not the case and that the State then offered to reimburse Petitioner for relocation costs. Petitioner did not remove the sign and the letter states that the current position of the Respondent State is:
That the sign is on the right of way, contrary to Section 339.301, Florida Statutes;
Has no current permit; contrary to Section 479.07(1), F.S.
Violates Section 479.13, Florida Statutes, as having been constructed, erected, operated, used and maintained without the written permission of the owner or other person in lawful possession or control of the property on which the sign is located; and
The sign therefore is an illegal sign and must be removed by Petitioner without compensation.
Respondent contends: that the sign is illegal, having failed to be permitted since the year 1971; that it has one pole of the sign pole on the right of way contrary to Section 339.301; that it has no lease contract as required by Section 479.13; that Respondent has no authority to renew delinquent permits; that once a sign becomes illegal a new permit cannot reinstate its nonconforming status.
Petitioner, White Advertising International, contends: that it should be granted a permit inasmuch as permits for some signs had been granted by the Respondent although the annual permit fee was not timely made.
CONCLUSIONS OF LAW
Section 479.07 Individual device permits; fees; tags.-, Florida Statutes, provides in part:
"(1) Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit
to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside an incorpo- rated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. . ."
No annual fee has been paid since 1971 although the subject sign has been used and maintained since that date and has recently had new copy erected thereon. No good faith attempt to pay was shown.
Rule 14ER-77.09 (Rule 14-10.04, Florida Administrative Code) Permits., provides:
"-A- (1) Statute: Chapter 479.07(1) of
the Florida Statutes, required that no person may use or maintain any outdoor advertising structure, outdoor advertising sign or out- door advertisement, outside any incorporated city or town, without first obtaining a per- mit therefor from the department, and paying the annual fee therefor, as provided."
The above cited rule adds nothing new to the statute and violation of the statute is violation of the rule.
Section 479.11, Florida Statutes, Certain outdoor advertising prohibited.-, provides in part:
"No advertisement, advertising sign or ad- vertising structure shall be constructed, erected, used, operated or maintained:
* * *
(2) Beyond 660 feet of the nearest edge of the right-of-way of all portions of
the interstate system or federal-aid primary systems outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system.
Rule 14ER-77.10 (Rule 14-10.05, Florida Administrative Code) Violations of Chapter 479 or Chapter 335.13 F.S., provides in part:
"-A- (1) Certain Outdoor Advertising Pro- hibited: No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
* * *
(2)(b) Beyond 660 feet of the nearest edge of the right of way of all portions of the Interstate System or the Federal-Aid Primary Systems outside of urban areas that are erected with the purpose of their message
being read from the main traveled ways of such system unless it is of a class or type permitted in Section 479.111(1), F.S. or 479.16(1),(3) F.S . . ."
The exceptions are not applicable in this case.
The subject sign is in violation of the foregoing statute and rule and the Petitioner sign owner admits it is partially on the road right of way. The above cited rule adds nothing new to the statute and violation of the statute is violation of the rule.
If a rule adds no new requirement and the requirements of the statute are clear the date a rule is promulgated is unimportant inasmuch as the dictates of the statute must be met in any event.
Section 479.13, Florida Statutes, Written permission of owner required., provides:
"No person shall construct, erect, operate, use, or maintain any outdoor advertising structure, outdoor advertising sign or ad- vertisement without the written permission of the owner or other person in lawful pos- session or control of the property on which such structure is located."
There is no evidence the Petitioner has complied with the foregoing statute. Any controversy as to whether the sign was located on the right of way would not waive the requirement that a permit fee be tendered especially since no written permission of the owner had been secured prior to erection of the sign, which in itself would have settled the controversy.
The contention of the Petitioner that the sign should now be permitted inasmuch as other signs have been permitted by despondent although they were delinquent and had not been permitted as required by Section 479.07 is without merit.
The Florida Statutes have stated in clear and easily understood language that a permit is needed and that it shall be renewed by paying an annual fee. Outdoor advertising is a privilege subject to control and taxation by the State as set out in the statutes passed by the State Legislature.
"While the license or privilege tax, even though also passed to raise revenue, is im- posed on the right to exercise a privilege, its payment is made a condition to the exer- cise, or continuance in the exercise, of the privilege, business, or vocation involved." Section 4, Licenses and License Taxes, 21 Fla. Jur. 12; see also Section 1, Licenses and Permits, 51 Am. Jur.2d 8. (Emphasis supplied)
The subject sign lost its privilege when the owner failed to pay the annual fee and the sign became in violation of Section 479.07, Florida Statutes, in 1972 and therefore illegal.
"ILLEGAL. Not authorized by law; illicit; unlawful; contrary to law, Protest of Down- ing, 164 Okl. 181, 23 P.2d 173.
Sometimes this term means merely that which lacks authority of or support from law; but more frequently it imports a violation.
Etymologically, the word seems to convey the negative meaning only. But in ordinary use it has a severer, stronger signification;
the idea of censure or condemnation for break- ing law is usually presented. But the law implied in illegal is not necessarily an ex- press statute. Things are called 'illegal' for a violation of common law principles. . . Tiedt v. Carstensen, 61 Iowa, 334, 16 N.W.
214." Black's Law Dictionary, Revised Fourth Edition, p. 582.
The Florida Department of Transportation should remove the sign under the enforcement provisions of Chapter 479, Florida Statutes. Cf. Brazil v. Division of Administration, State of Florida Department of Transportation, June 21, 1977, Case No. 77-66. The loss of the grandfathered-in "nonconforming" status provided in Section 479.24, Florida Statutes, is consistent with the requirement of Section 479.07(1), supra. By failure to keep the permit in force by paying the annual fee, the Respondent lost his opportunity to collect compensation from the state for removal of its sign. A "nonconforming sign" is a sign which conformed to the set back and other requirements of the outdoor advertising law in effect on December 8, 1971 but became nonconforming upon change of the laws.
The failure of the Respondent State to exercise its enforcement powers or to require compliance in some instances with Chapter 499, Florida Statutes, Section 335.13, Florida Statutes, and with the Federal Beautification Act does not give the Petitioner a right to violate the requirements of the laws passed by the Legislature of the State of Florida or the Congress of the United States. Failure to obey the laws subject Petitioner to the consequences.
The proposed Recommended Order filed by the Petitioner has been considered in this order.
Remove subject sign if the same has not been removed within thirty (30) days from the date of the Final Order.
DONE and ORDERED this 6th day of July, 1977, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
William D. Rowland, Esquire White Advertising International Post Office Box 626
