STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAY OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3872T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0817T

) HARRY MOODY OUTDOOR ADVERTISING, )

)

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 these consolidated cases on June 6, 1986, in Orlando, Florida. Subsequently, Harry Moody Outdoor Advertising submitted proposed findings of fact which have been considered and accepted.

APPEARANCES

For Ray Outdoor C. Ray Green, Esquire Advertising: 2600 Gulf Life Tower

Jacksonville, Florida 32207

For Department of Philip S. Bennett, Esquire Transportation: Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32301-8064

For Harry Moody Timothy C. Laubach, Esquire Outdoor Advertising: 511 North Ferncreek Avenue

Orlando, Florida 32803

By Notice dated October 5, 1984, the Department denied an application of Ray Outdoor Advertising for a permit to erect a sign on U.S. 40, 1.9 mile east of U.S. 441/301, in Marion County, Florida, because of a spacing conflict with permits held by Moody Outdoor Advertising. Thereafter, by Notice dated February 8, 1985, the Department sought to revoke the permits held by Moody which caused the conflict with Ray's proposed site, for violation of the harmony of regulations statutes, Sections 479.15 and 479.155, Florida Statutes.

FINDINGS OF FACT

1. State outdoor advertising permits numbered 11332-10 and AC679-10 were issued to Harry Moody Outdoor Advertising in August of 1979. These permits authorized a sign on S.R. 40, 2.5 miles east of U.S. 441/27/301, in Marion County, Florida. A building permit was issued by the City of Ocala in August, 1979, and Moody erected an outdoor advertising sign in 1979 pursuant to these permits.

   
   

2. On June 25, 1984, Moody removed this sign when the property owner was bulldozing the property in preparation for the construction of a restaurant on the site. Moody planned to reerect this sign after the restaurant had been constructed.

   
   

3. On July 23, 1984, Ray Outdoor Advertising received a building permit from the City of Ocala to erect a sign at 2141 E. Silver Springs Boulevard in Ocala. This location is within 750 feet of the site where Moody held permits.

   
   

4. When Ray applied to the Department for state permits for its location, the Department denied the application because Ray's proposed location was too close to the permitted location of Moody to comply with the spacing rule. Ray's proposed site was 276 feet west of the location where Moody held state permits.

   
   

5. Moody has a lease for the location where the Department has issued his state permits. This lease has been maintained, and it is renewed from year to year until revoked. There is no evidence that the lease was ever cancelled.

   
   

6. In October of 1984, when the property where Moody's sign had been located was cleared and the sign could be reerected, Moody applied to the City of Ocala for a building permit. On October 26, 1984, this permit was denied because a building permit had been issued to Ray, and the site where the Moody sign was to be reerected was too close to the location where Ray's building permit authorized it to build a sign.

   
   

7. In summary, the Department will not issue Ray a state permit because of the proximity of the site where Moody holds state permits, and the City of Ocala will not issue Moody a building permit to reerect its sign because of the proximity of the site where Ray has a building permit.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 479.15, Florida Statutes, is the harmony of regulations statute, and it prohibits local authorities from issuing a permit for a sign which is prohibited by Chapter 479. This statute also prohibits the Department from issuing a state permit for a sign which is prohibited by local authorities.

   
   

10. Section 479.07(1), Florida Statutes, prohibits the erection of a sign on a federal-aid primary highway (with certain inapplicable exceptions) without first obtaining a state sign permit from the Department. Section 479.07(9)(2), Florida Statutes, requires at least 1,000 feet between permitted signs on the same side of a federal-aid primary highway before a state permit can be issued.

11. Since the permits held by Moody authorized a sign at a location less than 1,000 feet from the site where Ray applied for a state permit, the Ray application could not be granted, and the Department's denial of the Ray application was proper. Under the harmony of regulations statute, the City of Ocala should likewise have denied a building permit to Ray because Ray was prohibited by Section 479.01(9)(2), Florida Statutes, from receiving a state permit at this location.

    
    

12. Moody has held its permit for the location in question since 1979. The sign it had erected pursuant to these permits was a lawful sign when it was taken down temporarily with the intent to reerect it at the permitted site. These permits are still lawful, except that Moody is barred from reerecting its sign because it cannot obtain a City of Ocala building permit, due to the building permit the City issued to Ray in violation off the harmony of regulations statute.

    
    

13. Section 479.08, Florida Statutes, authorizes the Department to revoke a state permit for only two reasons, (1) the application contains knowingly false or misleading information, or (2) the permittee has violated any of the provisions of Chapter 479. There is no evidence to support a finding that Moody has violated either of the statutory prerequisites for permit revocation. The City of Ocala, not Moody, has violated the harmony of regulations statute, and absent this violation by the City Moody would be free to lawfully reerect its sign. Thus, the permittee has not violated Chapter 479, and its permits may not be revoked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order dismissing its notice

of revocation of permits numbered 11332-10 and AC679-10 held by Harry Moody Outdoor Advertising; and denying the application of Ray Outdoor Advertising for a permit on U.S. 40, 1.9 mile east of U.S. 441/301, in Marion County, Florida.

THIS RECOMMENDED ORDER entered this 21st day of August, 1986 in Tallahassee, Leon County, 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 August, 1986.

COPIES FURNISHED:

C. Ray Green, Esquire 2600 Gulf Life Tower

Jacksonville, Florida 32207

Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Timothy C. Laubach, Esquire

511 N. Ferncreek Avenue Orlando, Florida 32803

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301-8064

A. J. Spalla, Esquire General Counsel

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301-8064

Docket for Case No: 84-003872

Orders for Case No: 84-003872