STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMPA OUTDOOR ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1421T

) 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 hearing in the above styled case on 14 November 1979 at Bartow, Florida.

For Petitioner: Horace A. Andrews, Esquire

Post Office Drawer 1441

St. Petersburg, Florida 33731

For Respondent: Charles G. Gardner, Esquire

Florida Department of Transportation

Haydon Burns Building Tallahassee, Florida 32301

By letter dated June 25, 1979 Tampa Outdoor Advertising, Inc., Petitioner, contests the disapproval of its application for permits for signs located on the I-4 and I-275 in Tampa, Florida. Prior to the hearing, Foster & Kleiser acquired the assets of Tampa Outdoor Advertising, Inc. aid was substituted as a party to these proceedings with the same rights as the original Petitioner.

At the hearing two witnesses were called by Petitioner, one witness was called by Respondent and 8 exhibits were admitted into evidence. Proposed Recommended Orders submitted by the parties have been considered. Proposed Findings not included herein were either not deemed supported by competent and substantial evidence or were not deemed necessary to the results reached.

FINDINGS OF FACT

The facts here involved are not in dispute.

1. In 1966 Petitioner leased the property adjacent to Cypress Street in Tampa and erected a structure thereon on the 1-275 3.6 miles west of 1-4, containing signs facing both east and west. By application dated 20 October 1977 (Exhibits 1 and 2) Petitioner applied for permits for these signs. The applications were disapproved because of spacing. Likewise, on 20 October 1977, Petitioner submitted application for a permit for a sign on the 1-4 2.9 miles east of U.S. 41 with a copy of the lease dated 1967. This sign is located in

   Tampa and the application was also disapproved because of spacing. Both of these locations are zoned commercial and are within the corporate limits of Tampa, Florida.

   
   

2. The structure on which the signs shown on Exhibits 1 and 2 were erected was built in 1968 and the sign involved in Exhibit 3 was built in 1967.

   
   

3. The signs for which a permit was requested in Exhibits 1 and 2 is located 325 feet north of a permitted structure owned by Tampa Outdoor Advertising, Inc. on the same side of the street and facing in the same direction.

   
   

4. The sign for which a permit was requested in Exhibit 3 is 275 feet west of a permitted sign facing the same direction and on the same side of the street which is owned by Foster and Kleiser.

   
   

5. No appeal was taken from these disapprovals, but by applications dated June 19, 1979, Petitioner in Exhibits 4, 5 and 6 reapplied for permits for the same signs that had been disapproved in 1977. These applications were also disapproved because of spacing.

   
   

6. The I-4 and the I-275 are part of the Interstate Highway system.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Prior to 1972, signs located within the corporate limits of cities and towns were not subject to the jurisdiction of the department. By Laws, 1971, c. 71-791, s479.03 Florida Statutes, was amended to delete the corporate limits of cities and towns exception to the department's jurisdiction over signs.

   However, it was not until July 1, 1975 that signs within corporate limits of cities and towns located along federal-aid primary and interstate highway systems required permits. Laws 1974 c.74-80 amended s479.07 by adding to subsection (1) thereof:

   
   

   Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal-aid primary highway or Interstate Highway within any incorporated city or town shall apply for a permit in a form provided by the department.

   The permanent permit tag of the kind hereafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4).

   
   

9. Since the signs here involved were built before they came under the jurisdiction of the department they had grandfather status and the applications submitted in Exhibits 1, 2 and 3 should have been approved.

   
   

10. During the period following the requirement that some signs located within incorporated cities and towns must have permits, considerable confusion

    in this regard existed both in the Department of Transportation and in the sign business. As a result, many applications for permits were not received until 1977 and these applications received differing treatment throughout the state. Respondent's efforts to deny permits to all non-conforming signs was repudiated by the legislature and by the courts. Walker v. State of Florida, Department of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979); Outdoor Advertising Art, Inc.

    v. Department of Transportation, 366 So.2d 114 (Fla. 1st DCA 1979); A. W. Lee, Jr. v. Florida Department of Transportation, 366 So.2d 116 (Fla. 1st DCA 1979); and White Advertising International v. State of Florida, Department of Transportation, 368 So.2d 411 (Fla. 1st DCA 1979)

    
    

11. While Petitioner, by virtue of its primary business of operating outdoor advertising, was required to keep itself cognizant of statutes and rules issued by the department, the inconsistency of the department in this regard contributed to the delay by Petitioner in submitting its application.

    
    

12. The reasons for which the applications submitted in Exhibits 1, 2 and

    3 were disapproved have since been invalidated for non-conforming signs erected prior to the requirements for such signs to have permits. Denital of these applications led to the delays by Petitioner in submitting applications contained in Exhibits 4, 5 and 6. Accordingly, this delay is attributable to the actions of Respondent and should not form the basis for denying the current applications for permits.

    
    

13. From the foregoing it is concluded that the signs in question were erected before they came under the jurisdiction of the department and have grandfather status as non-conforming signs. The applications for permits submitted in 1977 were timely submitted and wrongfully denied by Respondent. Resubmittal of these applications in 1979 after court decisions had negated some of Respondent's policies respecting non-conforming signs was also timely. It is therefore

RECOMMENDED that applications for permits submitted in Exhibits 4, 5 and 6 be approved.

Entered this 21st day of December, 1979.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979.

COPIES FURNISHED:

Charles G. Gardner, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32301

Horace A. Andrews, Esquire Post Office Drawer 1441

St. Petersburg, Florida 33731

Docket for Case No: 79-001421

Orders for Case No: 79-001421