STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2019T

) DEPARTMENT OF TRANSPORTATION and ) BILL SALTER ADVERTISING, INC., )

)

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 February 14, 1983, in Pensacola, Florida.

APPEARANCES

For Petitioner: P. Michael Patterson, Esquire

905 West Moreno Street Pensacola, Florida 32501

For Respondent: Vernon L. Whittier, Jr., Esquire Department of Haydon Burns Building, Mail Station 58 Transportation Tallahassee, Florida 32301-8064

For Respondent: Mark J. Proctor, Esquire Bill Salter Post Office Box 12308 Advertising, Inc. Pensacola, Florida 32501

This case arose from the denial of the Petitioner's application for permits to erect signs facing north and south ("V" shaped) on State Road 291, 190 feet north of State Road 296 in Escambia County, Florida. The issue to be resolved is whether permits should be granted to the Petitioner for signs at this location.

FINDINGS OF FACT

1. On August 17, 1979, Rocair Realty Company wrote a letter to William Salter of Bill Salter Advertising, Inc., agreeing to lease a location on the west side of State Road 291 (Davis Highway), north of State Road 296 (Brent Lane), 150 feet west of the intersection of Davis Highway and Brent Lane.

   
   

2. In reliance on this letter, Bill Salter Advertising, Inc., applied to the Department of Transportation on August 20, 1979, for a permit to erect an outdoor advertising sign located 150 feet west of State Road 291.

   
   

3. On September 28, 1979, Bill Salter Advertising, Inc., executed a lease with Rocair Realty Company to formalize the written permission granted by Rocair

   Realty Company on August 17, 1979, to erect an outdoor advertising sign at the location 150 feet west of State Road 291. This lease gave Bill Salter Advertising, Inc., the right to negotiate with Rocair Realty for other locations on the leased property.

   
   

4. The Department of Transportation issued to Bill Salter Advertising, Inc., a permit to erect an outdoor advertising sign located 150 feet west of State Road 291, and Bill Salter Advertising, Inc., erected an outdoor advertising sign at this location.

   
   

5. The September 28, 1979, lease between Bill Salter Advertising, Inc., and Rocair Realty Company, terminated on October 1, 1981.

   
   

6. On October 1, 1981, Bill Salter Advertising, Inc., entered into another lease agreement with Rocair Realty which ran until September, 1982, and on August 11, 1982, Bill Salter Advertising, Inc., executed a third lease with Rocair Realty for the same property which runs until September, 1983.

   
   

7. Based upon provisions of the September 28, 1979, lease with Rocair Realty Company, an employee of Bill Salter Advertising began to negotiate with Rocair Realty for a location on the leased property 210 feet north of State Road 296.

   
   

8. Bill Salter Advertising paid Rocair Realty the

   lease fees on the location at 150 feet west of State Road 291, and lease fees were paid to Rocair Realty on the location of 210 feet north of State Road 296.

   
   

9. On August 4, 1981, Bill Salter Advertising, Inc., applied to the Department of Transportation for outdoor advertising sign permits at the location 210 feet north of State Road 296. On August 17, 1981, the Department of Transportation approved this application and issued permit tags for signs facing north and south on the west side of State Road 291, 210 feet north of State Road 296.

   
   

10. On September 4, 1981, the Petitioner, Lamar Advertising Company, applied to the Department of Transportation for permits to erect outdoor advertising signs located on the west side of State Road 291, 190 feet north of State Road 296.

    
    

11. This location is not a Federal-Aid Primary or Interstate Highway, and it is outside the city limits of Pensacola, in Escambia County. As such it is subject to the spacing requirements of the Escambia County ordinance regulating outdoor display advertising.

    
    

12. At the time the Petitioner, Lamar Advertising Company, made this application, the Department of Transportation had already issued permits for Bill Salter Advertising's location at 150 feet west of State Road 291, and it had already approved a permit for the erection of Bill Salter Advertising's signs located 210 feet north of State Road 296.

    
    

13. The location for which Lamar Advertising seeks per- mits is less than

    500 feet from the permitted locations of Bill Salter Advertising at 150 feet west of State Road 291 and at 210 feet north of State Road 296.

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Prior to the erection of an outdoor advertising sign in the State of Florida, a permit must be obtained from the Department of Transportation and the written permission of the property owner must be secured.

    
    

16. Section 479.07(6), Florida Statutes, provides:

    
    

    No person shall erect or cause

    to be erected an advertising structure, advertising sign or advertisement

    upon the property of another without first securing the written permission of the owner or lessee of said property

    and applying for and receiving a current permit tag as herein provided.

17. Section 479.13, Florida Statutes, provides: No person shall construct, erect,

    operate, use or maintain any outdoor advertising structure, outdoor adver- tising sign or advertisement without the written permission of the owner or other person in lawful possession or control of the property on which such structure or sign is located.

    
    

18. Section 479.15(1) , Florida Statutes, provides:

    
    

    No zoning board or commission nor any other public officer or agency shall permit any advertisement or adver- tising structure which is prohibited under the provisions of this chapter nor shall the department permit any advertisement or advertising structure which is prohibited by any other public board, officer or agency in the

    lawful exercise of its or their powers.

    
    

19. Section 2, Paragraph D., Spacing, Escambia County ordinance for the regulation of outdoor display advertising within unincorporated areas, prohibits the erection of a sign which is less than 500 feet from any other non-accessory outdoor advertising sign on the same side of the road right-of-way.

    
    

20. Section 14-10.04(1)(c) , Florida Administrative Code, provides in part:

    
    

    Where two applications frog different advertisers. . .are competing for the

    same site ,the first application received by the district office will be the first considered for approval.

    If the first one received is approved the second application will be disapproved and returned to the advertiser.

    
    

21. At the time Bill Salter Advertising applied to the Department of Transportation for permits at the locations 150 feet west of State Road 291, and at 210 feet north of State Road 296, it had the property under lease from Rocair Realty. The Bill Salter Advertising applications were first in point-of-time before that submitted by Lamar Advertising Company for locations that would preclude approval of both because of the 500 foot spacing restriction in the Escambia County ordinance. The proposed location of the Lamar Advertising Company signs 190 feet north of State Road 296 is less than 500 feet from the locations permitted to Bill Salter Advertising at 150 feet west of State Road

296 and 210 feet north of State Road 296. Thus, the permit application of Lamar Advertising Company should be denied.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Lamar Advertising Company for permits

to erect signs facing north and south ("V" shaped) on State Road 291, 190 feet north of State Road 296 in Escambia County, be DENIED.

DONE and RECOMMENDED this 18th day of May, 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 18th day of May, 1983.

COPIES FURNISHED:

P. Michael Patterson, Esquire 905 West Moreno Street Pensacola, Florida 32501

Vernon L. Whittier, Jr., Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581

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

Docket for Case No: 82-002019

Orders for Case No: 82-002019