STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR CITRUS OUTDOOR )

ADVERTISING CO., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1359T

) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public bearing in the above styled case on 19 September 1979 at Bartow, Florida.

APPEARANCES

For Petitioner: James C. Kirkpatrick

Post Office Box 3531 Lakeland, Florida 33802

For Respondent: Charles G. Gardner, Esquire

Department of Transportation The Haydon Burns Building Tallahassee, Florida 32301

By letter dated June 12, 1979, Lamar Citrus Outdoor Advertising Co., Petitioner, requested an administrative hearing to protest the denial of its application for a permit for a sign located on U.S. 98, (Lake Parker Avenue in Lakeland), 100 feet north of the intersection with Orange Avenue. The application for permit was denied by Respondent because the sign in question is within 500 feet of an existing permitted sign.

One witness was called by Petitioner, one witness was called by Respondent and six exhibits were admitted into evidence. There was no dispute regarding the facts here involved.

FINDINGS OF FACT

1. Petitioner leased the site in question in 1967, erected the sign thereon and has maintained the sign since that time. The sign in question is located within the city limits of Lakeland.

   
   

2. The street along which this sign is located is U.S. Highway 98, a federal-aid primary highway.

3. During the period from 1967 when erected until 1974 permits were not required for signs located within the corporate limits of cities or towns. Laws, 1974 c. 74-80 amended sec. 479.09(1), Florida Statutes, to require signs along federal aid primary highways within any incorporated city or town to have permits issued by DOT at no cost to the applicant.

   
   

4. No application for permits for this sign was submitted by Petitioner until the application dated 11 May 1979, the denial of which led to these proceedings.

   
   

5. The sign in question is located within 500 feet of a sign owned by Peterson Outdoor Advertising Co. which has been issued a permit. Peterson's sign was erected subsequent to the erection of Petitioner's sign.

   
   

6. On December 18, 1978 Respondent sent to all outdoor advertising licensees and permittees a notice (Exhibit 5) reminding them that all signs inside city limits which are located on federal-aid primary highways are required to have permits and that, for those signs for which permits had not been issued, the owners had until February 17, 1979 to submit applications.

   
   

7. Petitioner received this notice and submitted timely applications for permits on most of the signs it owned which were located along federal-aid primary highways within city limits.

   
   

8. Petitioner presented no valid reason for its failure to timely apply for the permit here desired, but acknowledged that this failure was due to oversight or because the file for this sign had been removed from its usual place when other similar applications were submitted.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The sign here involved was erected prior to the time permits were required for signs located within city limits and as such enjoys grandfather status as a non-conforming sign.

    
    

11. Lamar Citrus Outdoor v. Florida DOT, DOAH Case No. 79-940T, R.O. submitted 21 August 1979, involved facts similar to those in this case. There Petitioner had applied for a permit for a non-conforming sign prior to receipt of Respondent's 18 December 1978 notice to all outdoor advertising licensees and this application had been denied. Accordingly, when the 18 December 1978 notice was issued, Petitioner did not reapply.

    
    

12. In Case No. 79-940T the Hearing Officer found shifts in policy by DOT had created confusion and the prior denial of the application for permit was sufficient to make it inequitable for the permit to again be denied simply because Petitioner had failed to reapply during the time allowed by the 18 December 1978 notice.

    
    

13. Here no previous application for a permit for the non-conforming sign had been denied. Petitioner's only excuse for failing to obtain a permit was oversight or inadvertence on its part. As was stated in the Recommended Order in Case No. 79-940T:

    . . .there shall one day come a time at which non-conforming signs not holding a current permit must be removed. . .

    
    

14. Petitioner is in the sign business and is fully cognizant of the rules and regulations pertaining to signs and permits for these signs. While Petitioner may not have received actual notice that permits were required for signs along federal-aid primary highways within incorporated cities and towns when the law was changed in 1974 to require permits for these signs, Petitioner was given actual notice on December 18, 1978 and failed to apply within the time specified.

    
    

15. The time for requiring compliance with the laws and regulations respecting the permitting of signs is no longer in the future but is now at hand. By failure to apply for a long-overdue permit during the grace period allowed by the December 18, 1978 directive, Petitioner has lost the right to such a permit. It is therefore

RECOMMENDED that Lamar Citrus Outdoor Advertising Co.'s application for a permit for signs located on Lake Parker Street, 100 feet north of Orange Avenue, be denied.

Entered this 3rd day of October, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

James C. Kirkpatrick Manager, Lamar Citrus

Outdoor Advertising Co.

Post Office Box 3531 Lakeland, Florida

Charles G. Gardner, Esquire Department of Transportation The Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 79-001359

Orders for Case No: 79-001359