STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER OUTDOOR )

ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2999T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

T & L MANAGEMENT, INC., )

)

Intervenor. )

)

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 May 10, 1984, in Pensacola, Florida. The transcript was received on June 6, 1984, and the parties thereafter submitted proposed findings of fact and conclusions of law. These have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.

APPEARANCES

For Petitioner: Mark J. Procter, Esquire

Post Office Box 12308 Pensacola, Florida 32501

For Respondent: Vernon L. Whittier, Jr., Esquire

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

For Intervenor: Michael D. Smith, Esquire

Post Office Drawer 1832

201 East Government Street Pensacola, Florida 32598

This case arose from the Department's denial of the Petitioner's application for permits for signs facing north and south on the west side of I- 110, .78 mile north of SR 289-A in Pensacola. The Intervenor, T & L Management, Inc., also had been denied permits for signs facing north and south on the west side of I-110, .6 mile south of SR 296, in Escambia County, Florida, because of a spacing conflict with other permits held by the Petitioner. Subsequently, these other permits were cancelled by Bill Salter, and T & L Management has intervened seeking approval of its application at the .6 mile location.

Approval of either the Bill Salter application or the T & L Management

application will preclude the approval of the other because of the spacing requirements for sign locations along an interstate highway.

Thus, the issue to be resolved is whether permits should be granted the Petitioner for outdoor advertising signs facing north and south at the .78 mile location or whether permits should be granted the Intervenor for outdoor advertising signs facing north and south at the .6 mile location.

FINDINGS OF FACT

1. On June 19, 1981, Bill Salter Advertising entered into a lease with G.

   L. Atwell to erect signs on the Atwell property which is adjacent to Interstate Highway 110. This lease gave Bill Salter permission to erect outdoor advertising signs at the location .78 miles north of SR 289A on the west side of Interstate Highway 110, inside the city limits of Pensacola. The term of this lease was from June 1981 to June 1982, renewable with $100 per year rental until the signs were erected, and then increasing to $200 per year thereafter, giving both parties certain rights of cancellation.

   
   

2. On May 28, 1982, Bill Salter applied to the Department of Transportation for permits to erect signs, one facing north and one facing south on the Atwell property .78 mile north of SR 289-A, and also submitted an affidavit to cancel permits for sign locations facing north and south, .55 mile south of SR 296. These documents were received by the Department on June 1, 1982.

   
   

3. By letter dated June 21, 1982, the Department denied the application of Bill Salter Outdoor Advertising for permits to erect signs at the location .78 mile north of SR 289A on the west side of I-110 because of a spacing conflict. Both the application and the affidavit to cancel permits at .55 mile south of SR

   296 were returned to Bill Salter Advertising with the denial letter.

   
   

4. The spacing conflict requiring denial of this application was an application from Lamar Advertising Company for a location just south of the proposed Bill Salter site, which had received field approval but not final approval because it was also in conflict with another location. However, all of these conflicts have now been resolved, and there are presently no permitted locations within a thousand feet of the proposed Bill Salter location at .78 mile north of SR 289A.

   
   

5. On July 9, 1982, T & L Management entered into a lease with James A. McKinney to erect a sign on the McKinney property which is adjacent to I-110. This lease gives T & L Management permission to erect advertising signs at a location .6 mile south of SR 296 (Brent Lane) on the west side of I-110. The lease is for a period of 10 years, giving both parties certain rights of cancellation, with an annual rental of 8300.

   
   

6. On July 12, 1982, T & L Management applied for permits to erect signs facing north and south on the McKinney property, .6 mile south of SR 296. The T & L application was received by the Department on July 14, 1982. T & L's application for the .6 mile location shows the distance from the right-of-way as

   15 feet; however, the McKinney property is actually located more than 50 feet from the limited access fence which is the highway right-of-way. The application was denied and returned to T & L Management because the .6 mile location was in spacing conflict with permits held by Bill Salter Outdoor Advertising for a location .55 mile south of SR 296 on the west side of I-110.

7. Another lease was entered into between Bill Salter Outdoor Advertising and T. R. Pledger for a location approximately .55 mile south of SR 296. This lease was signed by Mr. Pledger during the summer of 1982, to be effective from March 1, 1982. Payments were made to Mr. Pledger's mother-in-law, Ms. Reeves, who lived on this property located 150 to 200 feet from the interstate right-of- way. Bill Salter applied for and received permits to erect signs at this location, and his application showed the distance back from the right-of-way to be 15 feet. However, it is the usual practice in this locale to indicate the minimum distance required, and locate the sign at a greater distance from the highway right-of-way.

   
   

8. Bill Salter Outdoor Advertising cancelled its permits for the location

   .55 mile south of SR 296 on I-110, by affidavit executed on March 10, 1983. These permits were in conflict with the Salter application at .78 mile, and with T & L's application at .6 mile. Currently T & L's application at the .6 mile location is in conflict with Bill Salter's application at the .78 mile location. Bill Salter's permit application was received by the Department on June 1, 1982, and T & L's permit application was received by the Department on July 14, 1982. Both parties have permission of the property owner in the form of leases to erect outdoor advertising signs at these locations.

   
   

9. At the time permit applications were submitted by Bill Salter and T & L during 1982, the Department did not require that written permission of the property owners be submitted with the application, and this policy of the Department continues to the present. However, every applicant is required to certify on the application "...that the sign meets all the requirements of Chapter 479 of the Florida Statutes." Also, where a permit application is denied and a cancellation affidavit had been submitted with the application, it is Department policy to return both the application and the cancellation affidavit unprocessed.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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 and issue permits pursuant to Chapter 479, Florida Statutes:

    
    

11. A person or entity desiring to erect an advertising sign in Florida must first secure the written consent of the property owner, and then obtain a permit from the Department of Transportation.

    
    

12. Section 479.07(6), Florida Statutes:

    
    

    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 when applying for and receiving a current permit or tag as herein provided. (emphasis supplied)

13. Section 479.13, Florida Statutes:

    
    

    No person shall construct, erect, operate

    or maintain any outdoor advertising structure or outdoor advertising sign or advertisement without the written permission of the owner

    or other person in lawful possession or consent of the property on which such structure

    is located.

    
    

14. Section 14-10.06(1)(b)2.a, Florida Administrative Code, provides: Interstate Highway

    No two structures shall be spaced less than one thousand (1,000) feet apart on the same side

    of the highway facing the same direction.

    
    

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

    
    

    Where two applications from different advertisers...are competing for the same site the first application received by the district will be the first considered for approval

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

    
    

16. Section 479.15(1), Florida Statutes:

    
    

    No zoning board or commission nor any other public officer or agency shall permit to erect any advertisement or advertising structure which is prohibited under the provisions of this chapter nor shall the department permit any advertizing

    or advertising structure which is prohibited by other public board, officer or agency in

    the lawful exercise of its or their power.

    
    

17. T & L Management contends that the statement on Bill Setter's application that the distance proposed for the sign location is 15 feet back from the right-of-way of the highway, when this distance is actually between 150 and 200 feet, renders the application revocable for containing false information. However, distance measurements parallel to the highway between signs are generally the critical spacing measurements. Sign location distances exceeding the 15 foot minimum distance back from the right-of-way are only crucial if they cause a variance sufficient to create a spacing conflict parallel to the highway. There is no evidence that such a variance had occurred in this controversy. Moreover, both of the parties on their applications indicated distances 15 feet back from the right-of-way, when the leased proper- ties were both located a greater distance back from the right-of-way.

    
    

18. T & L Management also questions whether the Bill Salter permits at the

    .55 mile location were valid because of the back dating of the lease and because of the location of the Pledger property at the .55 mile location. However, there was not presented sufficient evidence to support a finding that these permits are invalid; and nevertheless the issue is irrelevant because of

    the cancellation of the permits at the .55 location. The impediment to approval of the T & L application for permits at the .6 mile location is the Bill Salter application for the .78 mile location.

    
    

19. When Bill Salter applied for permits at the .78 mile location, the property was under lease from the owners. The Bill Salter application was first in point-of-time before the application submitted by T & L Management. The Department may not approve both of these applications because of the 1000 foot spacing requirement between signs along interstate highways. The proposed location of the T & L Management signs at .6 mile south of State Road 296 on I-

110 is less than 1,000 feet from the proposed location of the Bill Salter signs at .78 mile north of State Road 289A on I-110. Consequently, the permit application of T & L Management, Inc., should be denied, and the permit application of Bill Salter Outdoor Advertising should be granted, subject to authorization from the City of Pensacola for the erection of signs at .78 mile location.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of T & L Management, Inc., for permits to

erect signs facing north and south on I-110 .6 mile south of State Road 296 in Escambia County, be DENIED, and that the application of Bill Salter Outdoor Advertising for permits to erect signs facing north and south on I-110, .78 mile north of SR 289-A in Pensacola, Escambia County, Florida, be GRANTED, subject to authorization from the City of Pensacola to erect signs at the .78 mile location.

This RECOMMENDED ORDER entered this 21st day of June, 1984, 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 June, 1984.

COPIES FURNISHED:

Mark J. Procter, Esquire

P. O. Box 12308 Pensacola, Florida 32501

Vernon L. Whittier, Jr., Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Michael D. Smith, Esquire

P. O. Drawer 1832

201 East Government Street Pensacola, Florida 32598

Docket for Case No: 82-002999

Orders for Case No: 82-002999