STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1745T

) OUTDOOR ADVERTISING ART, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in the Conference Room, Department of Transportation District Office, Bartow, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on the Administrative Complaint of the Department of Transportation against Outdoor Advertising Art, Inc., alleging that it had failed to obtain permits for existing signs on State Road 540, and, therefore, the signs should be removed.

The Department of Transportation presented evidence that showed that the signs in question had not had its permits renewed after 1973. Outdoor Advertising Art, Inc. presented evidence that when advised that it was delinquent in obtaining permits for the signs, it had tendered the fees due but the Department of Transportation had rejected this delinquent fee on the non- conforming signs.

APPEARANCES

For Petitioner: John Rimes, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: William Rowland, Esquire

115 East Morse Boulevard Winter Park, Florida 32790

FINDINGS OF FACT

1. Outdoor Advertising Art, Inc. is the owner of a 12 x 40 foot sign located on State Road 540 in Polk County. The records of the Department of Transportation show the last valid permit for this sign was issued in 1973.

   
   

2. The Respondent forgot to renew the permit for 1974 due to clerical error of its staff although it received notice as required by statute from the Department of Transportation.

3. On October 2, 1975, Outdoor Advertising Art, Inc. attempted to obtain a permit for this sign for the year 1974 and 1975, and tendered a check to Department of Transportation in the amount of $20. In doing so, the Respondent relied upon what it stated the policy of the Department had been regarding renewal of delinquent permits; however, it did not fail to renew in reliance on this policy but through its own oversight.

   
   

4. The Department of Transportation denied the permit on the sign which did not conform to the existing rules and regulations adopted by the State of Florida as part of the federal highways beautification program.

   
   

5. Testimony was received that delinquent applications have been allowed to be filed by the Department of Transportation, but not in District I of the Department of Transportation.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 479.07, F.S., requires that a permit issued by the Department of Transportation be affixed to a sign by its owner upon application to the Department of Transportation and payment of the established fee. The provisions of Section 479.07(3) provide that Department of Transportation shall notify the licensee in November of the fees due on permits issued to December 1 of the prior year. The licensee shall have sixty (60) days to pay the fees or return the permit to the Department. Permits not renewed or accounted for shall be accounted for on a form provided by the Department which shall be in affidavit form. Section 479.07(1) and (6) clearly prohibit the construction or erection of a sign without first filing an application and obtaining a permit. Section

   479.07 makes no provision for the filing of late fees and the rules and regulations of the Department of Transportation do not provide for the filing of late fees. In summary, the provisions of Section 479.07 are that the licensee must obtain the permit before construction of a sign, must renew all permits each year within sixty (60) days of receipt of notice that the payment is due or return the permit to the Department, or prepare an affidavit accounting for the permit if it is not renewed or returned. A sign is not legal without a permit, and no statutory provision exists for late filing.

   
   

7. The Department of Transportation, pursuant to statute, must notify the licensee of the permits to be renewed. All the licensee must do is renew or turn in the permit. There is little excuse for the licensee's failure to renew annually within sixty (6O) days as required. The fact that some Districts in the Department of Transportation had permitted applications for delinquent permits does not excuse the licensee's forgetting to renew the permit or create any waiver of the state's rights to have the annual fee or require removal of non-conforming signs. The Respondent failed to renew as required, through oversight not in reliance on the policy of the Department of Transportation to allow application for delinquent permits.

   
   

8. When the Respondent failed to renew, the sign became an illegal sign upon the expiration of the 1973 permit, and has remained so since that time.

   
   

9. The Hearing Officer has read and considered the matters raised in the proposed recommended orders submitted by the parties. Those findings recommended but not incorporated in the Recommended Order are specifically rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, this Hearing Officer recommends that the sign be removed.

DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John J. Rimes, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

William D. Rowland, Esquire Post Office Box 539

Winter Park, Florida 32789

Docket for Case No: 77-001745

Orders for Case No: 77-001745