STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTRY CORNER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1315T

)

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 16 September 1980 at Lake City, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

For Respondent: Larry G. Brummitt, in proper person.

By letter dated 24 June 1980, Larry Brummitt, Owner of Country Corner store, requested am administrative hearing to contest the denial of his application, by DOT, Respondent, to erect a sign on U.S. 90, 200 feet west of

1. 221, in Greenville, Florida. By letter dated 11 June 1980, Respondent had denied Petitioner's application "because we feel that they [Bank of Greenville] were the first applicant" and granting this permit would violate the spacing requirements.

   
   

   At the hearing, Mr. Brummitt testified in his own behalf and one witness was called by Respondent. There was no dispute regarding the facts here involved.

   
   

   FINDINGS OF FACT

   
   

   1. Larry Brummitt owned a sign on U.S. 90 in Greenville, Florida advertising Country Corner for which he held a permit for seven or eight years.

      U.S. 90 is a federal-aid primary highway. Mr. Brummitt desired to rebuild and relocate this sign a short distance from its authorized location and, to insure he did things properly, sought advice both from the advertising sign inspectors at Lake City and from the State Administrator of the Outdoor Advertising Section in Tallahassee. At both places he was told that be could not get an application for a new sign approved until his existing sign was removed because the new sign would violate the spacing requirements of Rule 14D-10.06(b)3, Florida

      Administrative Code while the existing sign was up; that an application would not be accepted while the former sign was standing; that the policy of the Department, when conflicting interests desired to erect signs where only one could be erected, was the person whose application was first received would be approved.

      
      

   2. The Department's long-standing policy, which was memorialized in a memorandum to all District Outdoor Advertising Sign Administrators in 1978, is that where conflicting applications for signs are received, the first submitted will be approved.

      
      

   3. Relying upon this information, Petitioner prepared his application, removed the old sign, and at 10:00 a.m. on 2 June 1980 presented his application to Respondent for a permit to erect his replacement sign.

      
      

   4. On 24 March 1980 American Sign and Indicator Company first approached Respondent's sign inspector to inquire about erecting a time and temperature sign for the Bank of Greenville. They were told that a permit for such a sign could not be issued because it would be within 500 feet of the Country Corner sign and would violate the spacing requirements unless Brummit's sign was first moved. At 1400 hours on 2 June 1980 American Sign and Indicator Company presented an application at the Lake City Headquarters of Respondent for a permit to erect a time and temperature sign at approximately the same location earlier requested by Brummitt.

      
      

   5. In his letter of 11 June 1980 the District Administrator, Outdoor Advertising, in Lake City advised Mr. Brummitt that his application was being disapproved and of his right to petition for an administrative hearing within 14 days or the denial would become final. As reasons for denying the application the letter stated:

      
      

      The application indicates the proposed location would be within 500 feet if a proposed time and temperature display to be erected by the Bank of Greenville in the County of Madison.

      The Bank of Greenville has been dealing in good faith with the Department to erect

      this display since January 5th, 1980. After obtaining the necessary criteria and additional expenses accrued, the Department feels the bank should be allowed to erect the display, because we feel they were the first applicant.

      
      

   6. When questioned by the Hearing Officer how Respondent "reasoned" the bank's application was received prior to Petitioner's application, the District Sign Inspector acknowledged that he had discussed these applications with the Chief Right-of-Way Agent in District 2, Mr. Bielling, under whose supervision the Outdoor Advertising Section comes, that Mr. Bielling is his boss and tells him what to do (Tr. p. 24-25) and that as far as the sign inspector is concerned, Mr. Bielling has the prerogative to change DOT policy.

      
      

      CONCLUSIONS OF LAW

      
      

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

   8. Rule 14D-10.06(b)3, Florida Administrative Code, provides that no two structures shall be spaced less than 500 feet apart on the same side of a federal-aid primary highway facing in the same direction.

      
      

   9. Here Respondent has a statewide policy that competing applications for outdoor advertising sign permits shall be treated on a first-come-first-served basis. The first application received for a sign on U.S. 90 near U.S. 221 in Greenville was the application of Petitioner.

      
      

   10. Agencies must honor their own substantive rules until they are amended or abrogated. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). Since the head of an agency is bound by the rules of the agency it follows that all others in the agency are likewise bound by these rules.

       
       

   11. From testimony presented at the hearing it appears that the bank was issued a permit, despite the appeal, and has erected the time and temperature sign for which application was made after Petitioner's application. If so, this is an unauthorized sign for which there was no authority to issue a permit while this appeal was pending.

       
       

   12. From the foregoing it is concluded that the application of Larry G. Brummitt for a sign located on U.S. 90, 200 feet west of U.S. 221 in Greenville, Florida, was the first application received for a permit for a sign near that location. As such DOT policy required the permit be issued to Mr. Brummitt. It is therefore

RECOMMENDED that Mr. Brummitt be issued a permit for the erection of an outdoor advertising sign on U.S. 90, 200 feet west of U.S. 221 in Greenville, Florida.

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980.

COPIES FURNISHED:

Charles G. Gardner, Esquire Florida Department of

Transportation

Haydon Burns Building, Room 562 605 Suwannee Street

Tallahassee, Florida 32301

Mr. Larry G. Brummitt Country Corner

Post Office Box 156 Greenville, Florida 32331

Docket for Case No: 80-001315

Orders for Case No: 80-001315