vs. ) CASE NO. 84-3510T
Respondent. )
For Petitioner: Robert P. Gaines, Esquire
For Respondent: Vernon L. Whittier, Jr., Esquire
A final hearing was held in this case on February 13, 1985 in Pensacola.
The issue to be heard was whether respondent, Department of Transportation (Department), should grant the application of petitioner, Lamar Advertising Company (Lamar), for a permit for an outdoor advertising sign to be located in Escambia County on the north side of Interstate 10, 0.75 miles east of U.S. 29, facing east. At final hearing, the parties stipulated that the application should be denied for insufficient spacing if Chapter 84-227, Laws of Florida (1984), effective July 1, 1984, applies. The issue for determination therefore became whether Lamar's application is permittable under the applicable law in effect on and before June 30, 1984.
On or about June 6, 1984, petitioner, Lamar Advertising Company (Lamar), submitted an application for an outdoor advertising sign permit for a sign to be located in Escambia County on the north side of Interstate 10, 0.75 miles east of U.S. 29, facing east. Respondent, Department of Transportation (Department), received the application on June 8, 1984.
The exact location for which Lamar sought a sign permit had been under permit to National Advertising which later assigned the permit to Headrick Signs (Headrick). The location had been under lease to National Advertising by the owners of the property.
On or about May 1, 1984, TLC Properties, Inc. entered into a contract to buy the property where the Headrick sign was located. The sales contract had a condition that the offer to purchase was contingent on the buyer being able to acquire within 60 days the permits required for the intended use, i.e., Lamar's sign.
The owners of the property, through Cramer Realty, Inc. (Cramer), sent National Advertising a letter on or about May 31, 1984 giving it 30 days' notice of termination of its lease on the property and asking it to remove its sign by June 30, 1984. No copy of this letter was included with Lamar's application.
Later, on or about June 22, 1985, the owners, again through Cramer, sent Headrick a letter asking Headrick to sign and return an Outdoor Advertising Permit Affidavit Form 178-529 cancelling its sign permit for the location because of loss of its lease to the property. The letter requested immediate action by Headrick so that the owners would not lose their sale. No copy of this letter was included in Lamar's application.
Headrick finally signed the Outdoor Advertising Permit Affidavit Form on or about July 31, 1984. Cramer in turn sent the executed affidavit to Lamar's realtor on or about August 2, 1984. Lamar later filed the executed affidavit with the Department.
By non-rule policy, the Department considers the effective date of the affidavit cancelling the Headrick sign permit to be July 31, 1984, the date the affidavit was signed, not the date it was later submitted or, even later, received by the Department.
On or about June 19, 1984, the Department returned Lamar's application to Lamar because no preliminary approval letter from the county building inspector was included with it.
Lamar promptly obtained the necessary preliminary approval letter from the county building inspector and resubmitted the application. The Department received the resubmitted application on or about June 22, 1984. The resubmitted application did not include a copy of Cramer's letter either to National Advertising or to Headrick.
By July 3, 1984, the Department had adopted a non-rule policy that all applications not processed to completion by June 30, 1984 under the applicable law as of June 30, 1984, would be returned to the applicant to be resubmitted for processing under Chapter 84-227, Laws of Florida (1984)--the applicable law which became effective July 1, 1984. Since Lamar's application, as resubmitted, had not been processed to completion by June 30, 1984, the Department returned it to Lamar on or about July 3, 1984.
By July 23, 1984, the Department changed its non-rule policy regarding applications received but not processed to completion by June 30, 1984. The Department decided it would process those applications and grant applications for signs which would be permittable either (1) under the facts and applicable law as of June 30, 1984 or (2) under Chapter 84-227.
On or about July 23, 1984, Lamar submitted its application for the third time.
As stipulated by the parties, Lamar's application was for a sign which would not be permittable under the applicable law effective July 1, 1984, because of insufficient spacing but which would be permittable with sufficient spacing under the applicable law in effect on June 30, 1984, assuming the cancellation of Headrick's permit for a sign at the exact same location.
On or about August 28, 1984, the Department gave Lamar notice of intent to deny Lamar's application because the Headrick sign permit was not cancelled until July 31, 1984 and because Lamar's application is not permittable under the applicable law in effect on and after July 1, 1984.
CONCLUSIONS OF LAW
Chapter 84-227, Laws of Florida (1984), to the extent that it amends Section 479.07, Florida Statutes (1983), became effective on July 1, 1984. The amendments to 479.07 do not apply to any permit or license which was valid and applicable as of June 30, 1984 until January 15, 1985 or until the permit or license expires or is revoked, whichever first occurs.
Absent estoppel or agency policy to the contrary, Section 479.07, as amended by Chapter 84-227, applies to all applications decided on or after July 1, 1984 regardless whether the applications were filed on or before June 30, 1984. See Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980).
As applicant, Lamar has the burden to prove all elements of its entitlement to the permit for which it has applied. J.W.C. Company, Inc. v. Dept. of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).
In this case, Lamar proved the existence of non-rule Department policy to grant applications filed but not processed to completion on or before June 30, 1984 if the applications are permittable under the facts and applicable law as of June 30, 1984. This policy is reasonable in view of the existence of contrary older appellate court decisions that applications should be determined under the applicable law in effect as of the date of the application. Cf. Attwood v. State ex rel. Buchert, 53 So.2d 101 (Fla. 1951); Goldstein v. Sweeny,
42 So.2d 367 (Fla. 1949); Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976). Alternatively, the Department would now be estopped to deny that this policy should apply to Lamar's application. Cf. Dept. of Health and Rehab. Services v. Petty-Eiffert, 443 So.2d 266 (Fla. 1st DCA 1983); Dept. of Environmental Regulation v. Oyster Bay Estates, Inc., supra.
As stated, absent the Department's non-rule policy governing applications filed but not processed to completion by June 30, 1984, Chapter 84-
227 would apply to Lamar's application. The policy therefore creates an exception which favors the applicant in derogation of the law otherwise applicable. For this reason, the policy should be strictly construed against the applicant.
As of June 30, 1984, National Advertising's lease on the property had been terminated. Section 479.13, Florida Statutes (1983), prohibits a permittee from maintaining a sign without written permission of the owner of the property on which the sign is located. A violation of Section 479.13 could result in imposition of a penalty under Section 479.18, Florida Statutes (1983), or in revocation proceedings under Section 479.08, Florida Statutes (1983). But a violation of Section 479.13 does not result in automatic termination of the permit.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that respondent, Department of Transportation, enter a final order denying the application of petitioner, Lamar Advertising Company, for a sign permit.
RECOMMENDED this 21st day of March, 1985, at Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1985.
1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
Robert P. Gaines, Esquire Beggs & Lane
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
