STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-746T

)

HENDERSON SIGNS, )

)

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 April 21, 1983, in Chipley, Florida. The transcript was received on May 6, 1983, and the parties requested time thereafter to submit proposed findings of fact and conclusions of law. These have been considered. Where not adopted, they have been rejected as irrelevant, immaterial, or not supported by the weight of the credible evidence.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building; Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Charles M. Wynn, Esquire

Post Office Box 793 Marianna, Florida 32446

By Administrative Complaint filed and served on November 24, 1982, the Department of Transportation seeks to revoke the outdoor advertising license held by Henderson Signs, alleging that the Respondent has repeatedly disregarded the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, in order to circumvent the regulation of outdoor advertising signs in parts of Jackson County. The Complaint also charges the Respondent with abuse of its sign license by erecting or maintaining signs in unincorporated areas in Jackson County in violation of the zoning provisions of the above statutes and rules, and by erecting or maintaining outdoor advertising signs prior to applying for and obtaining permits as required by the provisions of the above statutes and rules. The Complaint further charges the Respondent with abuse of the administrative process by seeking administrative hearings pursuant to Section 120.57(1), Florida Statutes, which were without merit, in order to extend the time its unpermitted signs remain erected and in use.

In support of the Administrative Complaint the Department presented two witnesses, both of whom are representatives of the Department of Transportation, and five exhibits which were received in evidence. The Respondent presented two witnesses, both of whom are owners of Henderson Signs, and one exhibit which was received in evidence.

FINDINGS OF FACT

1. Henderson Signs is a partnership which was initially owned and operated by Ladon Henderson and his wife, Margie Henderson. When Ladon Henderson became inactive, his son, Gene Henderson, became a partner and he now operates the business with Margie Henderson.

   
   

2. Henderson Signs has been licensed by the Department of Transportation to engage in the outdoor advertising business since before the year 1976. This license was renewed annually as required, and Henderson Signs now holds Outdoor Advertising License Number 20157 reissued on November 16, 1982.

   
   

3. Henderson Signs has operated in Washington, Gadsden and Jackson Counties, but in July of 1981 this business was sold to Tri-State Systems, Inc., and pursuant to the terms of this sale Henderson Signs may not now engage in the outdoor advertising business in these three counties. It may, however, operate elsewhere.

   
   

4. Between the years 1978 and 1981 Henderson Signs has received 17 notices of violations from the Department of Transportation charging that signs at 20 locations on Interstate 10 in Jackson County were erected illegally. This resulted in the opening of 22 dockets in the Division of Administrative Hearings to litigate administratively the charges against Henderson Signs. In 14 of these dockets the findings and conclusions resulted in a determination that Henderson was guilty as charged. Some of these guilty findings were appealed to the District Court of Appeals, where they were affirmed on the merits. Some were affirmed by per curiam opinions. Ten other cases have been docketed in this Division involving signs now owned by Tri-State Systems, Inc., pursuant to the sale by Henderson Signs. (This data has been taken from exhibits 1 and 2 offered by the Department.)

   
   

5. This evidence demonstrates that the Respondent has repeatedly erected outdoor advertising signs along Inter-state 10 in Jackson County which were found to be illegal signs because of spacing violations, zoning violations, or lack of the required permit authorizing their erection.

   
   

6. The legal position of Henderson Signs in many of the cases where administrative hearings were requested subsequent to the service of Notices of Violations, was that no state permits were necessary for varying reasons, one of which was that Interstate 10 had not become a part of the United States Interstate Highway System because it had not been opened to the public.

   Findings of not guilty were made in one Division of Administrative Hearings docket involving three sign violations, because of a failure of the evidence to prove that Interstate 10 was open to the public. (Data taken from exhibit 2 offered by the Department).

   
   

7. The Administrative Procedure Act, Chapter 120, Florida Statutes, affords parties whose substantial interests are affected by actions of Administrative Agencies the right to a hearing to resolve disputed issues. Henderson Signs utilized the provisions of this Act. When the disputes were resolved against the contentions of Henderson Signs, by agency order or by the Court after appeal, it removed the signs that were the subject of these proceedings. The Department of Transportation has never had to remove a Henderson sign for failure of the Respondent to comply with a final order determining it to be illegal.

8. The Respondent contends that a genuine issue existed regarding the necessity of securing a permit prior to the erection of a sign along the site of Interstate 10 in Jackson County, until the time it became a part of the Federal Interstate Highway System by being opened for public traffic.

   
   

9. There is no evidence from which a finding of fact can be made as to precisely when Interstate 10 in Jackson County was opened and in use by the public. The formal ceremony opening Interstate 10 was held in November of 1978.

   
   

10. During the time between the erection of a sign by the Respondent and the order that it be removed after a determination that it was illegal, Henderson Signs received rental payments from the sign advertiser.

    
    

11. Subsequent to July of 1981, when the Respondent sold its sign business in Jackson County, there have not been any notices of violation issued to Henderson Signs by the Department of Transportation.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs, and issue and revoke licenses, pursuant to Chapter 479, Florida Statutes.

    
    

13. Section 479.05, Florida Statutes, permits the Department to revoke any license granted by it when it finds:

    
    

    "... that any material information re- quired to be given in the application for the license is knowingly false or misleading or that the licensee has violated any of

    the provisions of this chapter unless such licensee shall, before the expiration of 30 days, correct such false or misleading in- formation and comply with the provisions

    of this chapter "

    
    

14. There is no evidence that Henderson Signs supplied false or misleading information in its application for licensure as an outdoor advertiser. The stated condition precedent to the revocation of a license for violation of the provisions of Chapter 479, Florida Statutes, is that the licensee be given 30 days to comply with the provisions of this chapter.

    
    

15. At the time when the Department notified Henderson Signs of its intention to revoke its outdoor advertising license, and at the time of the subsequent filing of the Administrative Complaint against it, Henderson Signs was not in violation of any of the provisions of Chapter 479, Florida Statutes. Even if it had then been in violation, Section 479.05, Florida Statutes, requires that a licensee be afforded 30 days to bring itself into compliance before revocation proceedings may be initiated.

    
    

16. Section 479.05, Florida Statutes, does not authorize the revocation of an outdoor advertising license for past violations. The clear import of this statute is that the revocation of a license for violations of Chapter 479 must be on the basis of existing violations which persist after the 30 day time afforded a licensee to bring itself into compliance.

17. Thus, in these circumstances, the outdoor advertising license held by Henderson Signs is not subject to revocation.

RECOMMENDATION

From the foregoing, Findings of Fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Henderson Signs

be dismissed.

THIS RECOMMENDED ORDER entered on this 21 day of July, 1983, 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 21st day of July, 1983.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Building; M.S . 58 Tallahassee, Florida 32301-8064

Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446

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

Docket for Case No: 82-000746

Orders for Case No: 82-000746