vs. ) CASE NO. 84-2247T
Respondent. )
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 October 23, 1981, in Chipley, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law, which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling on each has been made either directly or indirectly.
For Respondent: Vernon L. Whittier, Jr., Esquire
By Memorandum dated April 26, 1984, the Department advised the Petitioner that its application for outdoor advertising sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, was denied for failure to meet the spacing requirements. The issue to be resolved is whether the site of the Petitioner's proposed signs meets the spacing requirements of Chapter 479, Florida Statutes, and Chapter 84-227, Laws of Florida, so as to qualify for sign permits.
Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property.
Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained.
A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar.
Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site.
Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing.
By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property.
By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles
W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department.
The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County.
The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective.
There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising.
The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site.
The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
CONCLUSIONS OF LAW
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 there for pursuant to the provisions of Chapter 479, Florida Statutes.
Section 479.02, Florida Statutes, provides in part:
It shall be the function and duty of the department, subject to current federal regulations to:
(b) Regulate size, lighting, and spacing of signs permitted in zoned and unzoned commercial and zoned and unzoned industrial areas.
Section 14-10.06(1), Florida Administrative Code, provides in part:
2. Interstate Highway
a. 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.
Section 2479.07, Florida Statutes, as amended by Chapter 824-227, Laws of Florida, which became effective July 1, 1984, provides in part:
(6)(a) any sign not granted a permit by the effective date of this act shall not be granted a permit unless such sign is located at least:
1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.
5. Section 2479.08, Florida Statutes provides in part:
(1) The department may after 30 days' notice in writing to the permittee, revoke any permit issued by it under s. 479.07 . . . in any case where it shall appear to the department that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this
chapter unless such permittee shall, before the expiration of said 30 days, correct such false or misleading information and comply with the provisions of this chapter.
Section 479.15, Florida Statutes, provides in part:
No zoning board or commission nor any other public officer or agency shall permit any advertisement or advertising 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.
The Petitioner notified the Department on June 13, 1984, that it owned the property where Lamar held permits AD809- 8, A1584-10, A1585-10 and 6821-10, and that the Petitioner was cancelling these permits. It further advised that Lamar had been notified to remove its sign structure. However, pursuant to Section 479.08, Florida Statutes, only the Department has authority to cancel state sign permits issued under the provisions of Section 479.07, Florida Statutes, and the Department must do so in accordance with Section 479.08 providing a 30 day show cause notice to the permittee. The permittee may cancel its permits sooner by affidavit to the department; however, unless voluntarily cancelled by the permittee, the 30 day statutory period must run its course because there is no authority for the Department to cancel permits involuntarily without following the statutory procedure.
Utilizing the 30 day statutory show cause provision, the earliest Lamar's permits could have been cancelled would have been after July 1, 1984. The 1984 Legislature amended Section 479.07, Florida Statutes, by increasing the spacing requirement for sign permits on interstate highways from 1,000 feet to 1,500 feet, effective July 1, 1984, for any sign that had not been granted a permit by this date.
Upon receipt of the Department's show cause notice, Lamar requested an administrative hearing, and then withdrew the request, and advised that the permits were being cancelled and the sign removed. Lamar's sign structure at the subject location was removed by the afternoon of June 30, 1904. However Lamar's permits for this location had not been cancelled, either by the permittee voluntarily or by the Department pursuant to Section 479.08, Florida Statutes, The permits were legally in effect until after July 1, 1984.
The Lamar permits which prevented the issuance of permits to the Petitioner under the old 1,000 foot spacing requirement were cancelled July 23, 1984. However, because of the new 1,500 foot requirement which became effective July 1, 1984, and the Bill Salter Outdoor Advertising permits at locations nearer than 1,500 feet from the location in question, the Petitioner's application may not be granted.
Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied.
DONE and ORDERED this 28th day of December, 1984, in Tallahassee, Florida.
WILLIAM B. THOMAS
FILED with the Clerk of the Division of Administrative Hearings this 28th day of December, 1984.
Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
