STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAX MEDIA OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2093T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on March 10, 1982, in DeLand, Florida. The transcript was received on March 31, 1982. At the hearing the parties requested and were accorded 20 days after the filing of the transcript to submit proposed findings of fact and conclusions of law, but to date none have been received.

APPEARANCES

For Petitioner: Michaeline Davidson (as a witness) Vice President of Max

Media Outdoor Advertising Post Office Box 847

Winter Park, Florida 32790

For Respondent: Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

The issue to be resolved is whether a permit should be granted the Petitioner for an outdoor advertising sign at Mills Street and Virginia Street in Orlando, Florida. One witness testified for the Petitioner and ten exhibits were offered and received in evidence. One witness also testified in behalf of the Respondent.

FINDINGS OF FACT

1. The Petitioner, Max Media Outdoor Advertising, held a lease for billboard space at 1410 North Mills Street in Orlando, Florida, and it had erected a sign at this location. On January 16, 1981, the landlord, Lust Industries, cancelled this lease, effective on approximately April 16, 1981. The rental was paid by the Petitioner through the month of March, 1981.

   
   

2. On February 24, 1981, the Petitioner applied for a City of Orlando permit to erect a billboard at 1400-1406 North Mills (immediately adjacent to 1410), which was denied because of the proximity to its existing billboard. Over the weekend of March 21-22, 1981, the Petitioner began to dismantle its sign at 1410 North Mills Street, and on Monday, March 23, 1981, the final poles

   were taken out of the ground. On March 23 the Petitioner again applied for a permit at 1400-1406 North Mills Street, which was granted by the City of Orlando after confirmation that the sign at 1410 had been dismantled.

   
   

3. The Petitioner's landlord, Lust Industries, had made inquiry late in 1980 or early in 1981 about the City's regulation of billboards, and in January or February of 1981 filed its own application for a permit at 1410 North Mills. This was denied by the City because of the Petitioner's existing billboard. After the removal of the Petitioner's billboard at 1410 North Mills, Lust Industries again applied for a City permit, but this time its application was denied because of the outstanding permit already issued to the Petitioner for the adjacent property.

   
   

4. On March 18, 1981, while the Petitioner's billboard was still in existence at 1410 North Mills, Lust Industries applied to the Department of Transportation for a State permit at 1410 North Mills. Sometime in April, 1981, the Department of Transportation issued its State permit to Lust Industries, based upon inaccurate or false statements contained in the application.

   
   

5. The Petitioner, having a valid City of Orlando Permit to erect its sign at 1400-1406 North Mills Street, then applied to the Department of Transportation for a State permit. This was denied because of the existence of a permit to Lust Industries at 1410 North Mills Street. As a result, neither the Petitioner nor Lust Industries are able to erect a billboard, the former for want of a State permit, and the latter for lack of a City permit.

   
   

6. The witness for the Department of Transportation candidly admitted that the permit to Lust Industries would not have been granted if the information contained in its application had been known to be inaccurate or false at the time the application was considered.

   
   

   CONCLUSIONS OF LAW

   
   

7. Pursuant to Chapter 479, Florida Statutes, the Department of Transportation has jurisdiction to regulate outdoor advertising within 660 feet from the right-of-way of any highway in the federal-aid primary system. The location of the proposed billboards which are the subject of this proceeding is within 660 feet from U.S. 17 and U.S. 92 as these routes run through Orlando. Section 14-10.09(2), Florida Administrative Code, prohibits billboards spaced less than 500 feet apart on the same side of the highway facing the same direction. The zoning ordinances of the City of Orlando have substantially the same provisions.

   
   

8. Section 14-10.04(1)(c), Florida Administrative Code, provides that where two applications from different parties conflict with each other, or are competing for the same site, the first application received will be the first one considered for approval. This section further requires that the second application be disapproved if the first is approved.

   
   

9. Section 479.15, Florida Statutes, requires that there be harmony of regulations between governmental entities in the permitting of outdoor advertising. Subsection (1) of this statute forbids the Department of Transportation from issuing a permit for any structure which is prohibited by any other public board, officer or agency in the lawful exercise of its powers.

10. Section 479.08(1), Florida Statutes, gives the Department of Transportation authority to revoke an advertising permit after 30 days notice when the application for the permit appears to contain false or misleading information.

    
    

11. These are the statutory and code provisions applicable to the facts in this proceeding. However, this case in its present posture does not permit a granting of the Petitioner's application.

    
    

12. Although the statute requires harmony of regulation between governmental entities in the permitting process, and although the code authorizes revocation of a permit by DOT when it was issued on the basis of false information, nevertheless DOT issued a permit to the first applicant therefor and denied the Petitioner's second application as the code requires. The permit held by Lust Industries cannot be revoked in this case because Lust Industries is not a party to this proceeding. The Petitioner's permit cannot be granted because it violates the spacing requirements of the statutes.

    
    

13. The Department of Transportation should initiate a proceeding to revoke the permit held by Lust Industries on the basis of facts adduced in this case. The Petitioner should be afforded an opportunity to intervene in such a proceeding in order to determine the matter of eligibility for a permit at the location involved here. In the meantime, the Petitioner's application cannot be granted in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Max Media Outdoor Advertising for a

permit authorizing the erection of an advertising structure at Mills Street and Virginia Street in Orlando, Florida, be denied.

THIS RECOMMENDED ORDER entered on this 27th day of May, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 27th day of May, 1982.

COPIES FURNISHED:

Mr. William Davidson Mrs. Michaeline Davidson Post Office Box 847

Winter Park, Florida 32790

Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

Paul Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 81-002093

Orders for Case No: 81-002093