STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1062T

)

LAMAR OUTDOOR ADVERTISING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer K. N. Ayers held a public hearing in the above styled case on 23 January 1979 in Chipley, Florida.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Staff Attorney

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: John M. McNatt, Jr., Esquire

1530 American Heritage Life Building Jacksonville, Florida 32202

By Notice of Alleged Violation dated 3 April 1978, the Department of Transportation (DOT or Petitioner) seeks to have the Lamar Outdoor Advertising's (Respondent's) sign located on the I-110, 750 feet north of Maxwell Street in Pensacola removed. As grounds therefor it is alleged that the sign has no permit and is not permittable because located only 306 feet from a previously approved sign location. The notice further alleges improper setback violation, but no evidence was presented regarding this violation. Thereafter, one witness was called by Petitioner, one witness was called by Respondent and nine exhibits were admitted into evidence.

FINDINGS OF FACT

1. On 30 April 1976 Salter Advertising Company's application to locate a sign facing north on Salter-owned property off the I-110 near the intersection of Scott and Alcaniz Streets, Pensacola, Florida, was approved (Exhibit 1).

   
   

2. By application dated 12 November 1976 Salter requested authorization to erect a sign at the same location facing south (Exhibit 8). This application was disapproved by the District sign inspector on December 20, 1976. What happened to the original of Exhibit 8 was not disclosed at the hearing. On a duplicate original of this application, which was introduced as Exhibit 9, the

   disapproval on the duplicate original application was erased or whited-out and under date 5-2-77, this application was approved by the District Sign Coordinator, the supervisor of the inspector who had disapproved Exhibit 8.

   
   

3. The copy introduced as Exhibit 8 differs from Exhibit 9 in several respects. In the first place it is a carbon copy of what appears to have been the original of Exhibit 8. The "received" stamps dated November 24, 1976, December 13, 1976, and December 21, 1976, appear at different places on Exhibits

   8 and 9; Exhibit 8 contains a "returned" stamp with date of 11/15/76 which does not appear on Exhibit 9; Exhibit 9 contains a "received" stamp dated April 29, 1977 which does not appear on Exhibit 8; and Exhibit 9 shows sign to be facing both S and W, while Exhibit 8 shows sign facing S only.

   
   

4. The reason given for disapproving Exhibit 8 contained in letter dated January 31, 1977, (Exhibit 5), was that there was inadequate space to place a sign at the location proposed because of the City of Pensacola's setback line 50 feet from the center line of Alcaniz Street. This same condition exists respecting the application approved in Exhibit 1. Accordingly, no sign has been erected at the location despite the approval of the South and West facing sign approved in Exhibit 9.

   
   

5. In November of 1976 Respondent contacted Petitioner's sign inspector for Pensacola and arranged to meet at the site of the sign proposed in Exhibits

   2 and 4. The property at this location was for sale and Respondent wanted to know if it was suitable for a sign. At this time it was customary for the official who approved the application to go to the site before the application was submitted and advise whether or not an application for a sign at the location would be approved. At the on-site meeting the inspector advised Respondent that approval for the intended sign would be forthcoming.

   
   

6. Respondent then purchased the property, submitted the application for sign approval and erected the sign at a cost of some $12,000.

   
   

7. The testimony, that it was customary for an applicant after receiving on-site approval, to erect the sign before receiving formal approval of its application for sign permit, was not rebutted.

   
   

8. The sign erected by Respondent is located approximately 300 feet from the site for which Salter received approval of its application in Exhibits 1 and

9. The I-110 is part of the interstate system.

   
   

   CONCLUSIONS OF LAW

   
   

   1. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

   2. Section 479.08, Florida Statutes, provides in pertinent part: If the construction, erection, operation, use,

      maintenance and display of any advertisement,

      advertising sign or advertising structure for which a permit is issued by the department and the permit fee has been paid as above provided, shall be prevented by any zoning board, Commission or other public agency which also has jurisdiction over the advertisement, advertising sign or advertising structure or

      its site, the fee for such advertisement, advertising sign or structure whall be returned by the department and the permit revoked.

      
      

   3. Rule 14-10.04(5), Florida Administrative Code, provides:

      
      

      Prior to the issuance of any outdoor advertising permit, the sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and the local governmental regulations.

      If all these requirements are met and the measurements are correct, the inspector stamps the application "approved", signs it and dates his signature. The approved application with the correct fee attached is forwarded to the Outdoor Advertising Section in Tallahassee.

      The Outdoor Advertising Section in Tallahassee will be responsible for reviewing and final approval of all license and permit applications.

      
      

   4. Rule 14-10.06(1)(b), Florida Administrative Code, provides in pertinent part:

      
      

      1. Interstate highway

         1. No two structures shall be placed less than one thousand (1000) feet apart on the same side of the highway facing the same direction.

         2. Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or safety rest area. Said five hundred (500) feet to be measured along the Interstate from the beginning or ending of the pavement widening at the exit from or entrance to the main-traveled way.

            
            

   5. Prior to erecting the sign here under consideration, Respondent obtained on-site approval from the Petitioner's sign inspector as provided by the above-quoted rule. Furthermore, the Respondent, relying on the approval granted him, purchased the property and erected the sign, thereby substantially changed its position based upon Petitioner's verbal approval of its application. Even if the existing approved application issued to Salter is a valid permit, a strong case of estoppel has been presented by Respondent which would preclude Petitioner's requiring the removal of the sign.

      
      

   6. The above-quoted statute, when applied to the facts of this case, clearly require that the permits issued to Salter to erect the signs approved by Exhibits 1 and 9 be revoked.

      
      

   7. From the foregoing, it is concluded that Respondent is not precluded from obtaining a permit for the signs applied for in Exhibits 2 and 4 by reason of the permits previously issued in Exhibits 1 and 9. It is therefore

RECOMMENDED that Respondent be issued permits for the signs erected of the I-110, 750 feet north of Maxwell Street in Pensacola, Florida, as applied for in Exhibits 2 and 4.

Entered this 7th day of February,1979, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Staff Attorney

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

John M. McNatt, Jr., Esquire 1530 American Heritage Life

Building

Jacksonville, Florida 32202

Docket for Case No: 78-001062

Orders for Case No: 78-001062