STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METRO ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4464T

) DEPARTMENT OF TRANSPORATION )

)

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 April 11, 1985, in Deland, 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 has been made on each, either directly or indirectly.

APPEARANCES

FOR PETITIONER: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

FOR RESPONDENT: Philip S. Bennett, Esquire

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

By letter dated November 30, 1984, the Department notified the Respondent that its request for replacement tags for two side-by-side signs on U.S. 17-92,

1. miles south of SR 436, in Seminole County was denied. The Respondent requested a hearing, contending that he requested replacement tags are for a location where it holds currently valid permits. Thus, the issue is whether the Department properly denied the Respondent's request for replacement tags.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Metro Advertising Company, is a licensed outdoor advertising company doing buiness in Orlando, Florida, through a division known as Eagle Outdoor. In 1964 the Petitioner acquired two outdoor advertising signs situated side-by-side on U.S. 17-92, 1.49 miles south of SR 436, in Seminole County, Florida. Thereafter, these signs were permitted by the Department and issued permit numbers 3988-2 and 3990-2.

      
      

   2. The Petitioner has renewed these permits each year by paying the appropriate annual renewal fee to the Department, including the renewal fees for the year 1985.

   3. Some time in 1983 the Departmet's outdoor advertising inspector noticed that the two signs which are the subject of this proceeding did not have affixed to them the permit tags as required. This inspector informed a representative of the Petitioner who was a divisional manager of the company, that these signs did not display permit tags, and advised that this be corrected.

      
      

   4. Subsequently, the Department's outdoor advertising administrator also discussed the matter of the missing tags on the subject signs with the Petitioner's divisional manager. At this time the divisional manager denied that the Petitioner owned these signs, and that there was no reason to replace the tags.

      
      

   5. On December 12, 1983, violation notices were issued by the Department charging that the signs at the subject location were in violation of the statutes and rules, and that these signs would be removed unless an administrative hearing was requested within 30 days. Since the Petitioner's logo appeared on these signs, the violation notices were directed to the Petitioner, and mailed returned receipt requested.

      
      

   6. When the time afforded to request an administrative hearing expired without any response from the Petitioner, the Department issued its final order for the removal of the subject signs. Pursuant to this order, the Department caused these signs to be removed.

      
      

   7. The signs that the Deparatment removed were nonconforming signs. If they were rebuilt they would violate the statutory spacing requirements.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   9. The applicable provisions of the Florida Statutes relating to the issuance of permits and metal permit tags for outdoor advertising structures prior to 1984 is found in Section 479.07(4), which provided in pertinent part as follows:

      
      

      For every permit issued the department shall deliver to the applicant a serially numbered permanent metal permit tag which shall indicate the size of the advertising

      structure, advertising sign or advertisement

      . . . The permittee shall attach a currently valid permanent permit tag to each advertising structure, adver tising sign or advertisement which he

      owns and which is required to be permit ted wherever located within the state. The tag shall be attached to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible. . . . and shall be maintained on the structure until

      returned to the department for cancel lation. The construction, erection, use or maintenance of any advertising struc ture, advertising sign or advertisement which is required by the chapter to be permitted, without having affixed there to a currently valid permanent permit tag shall be prima facie evidence that the same has been constructed or erected

      and is being operated, used or maintained

      in violation of the provisions of this chapter, and shall be subject to removal by legal representatives of the department....

      
      

      Section 14-10.04(2), Florida Administrative Code, imposes the same duty on permittees to attach the permanent tag to the structure so that it is plainly visible, but adds the requirement that the placement of the tag on the structure shall be in such a manner as to cause the tag to not be accessible to the general public.

      
      

   10. The signs which are the subject of this proceeding were in violation of the above statute and rule when the Department's inspector found them not to have affixed to them the required tags. The Petitioner, a licensed outdoor advertising company, did not correct this violation after being advised that its signs did not have the tags affixed. The Department served on the Respondent a violation notice citing each of these signs with violating the statutes and rules. These notices were mailed return receipt requested and, although the return receipts were not offered in evidence, the Petitioner does not contend that the violation notices were not received. When these violation notices were not responded to in anyway, the Department entered its final order for the removal of the signs. Subsequently, these signs were removed by the Department pursuant to the procedural requirements of Section 479.07(4), Florida Statutes, and Section 12-10.05(2)(h), Florida Administrative Code.

       
       

   11. The Petitioner contends that the subject tags were stolen from its signs, that various representatives of the Petitioner held discussions with the Department's district officials relative to obtaining replacement tags, and that replacement tags were ultimtely applied for but that the request was denied at a time when the signs were still standing. However, the evidence is inconclusive as to when these signs were actually removed by the Department. There was testimony at the hearing that they were removed in December of 1984. Yet the Department's letter of November 30, 1984, denying the Petitioner's request for replacement tags, which is a part of the record of this proceeding pursuant to Section 120.57(5) (a), Florida Statutes, recites that the signs had already been removed and that this was the reason the replacement tags could not be issued.

       
       

   12. The Petitioner contends further that it was having problems with vandals stealing its tags off the subject signs. However, the burden is on the permit holder to place the tags on the sign where they are not accessible to the public, pursuant to Section 14-10.04(2), Florida Administra- tive Code.

       
       

   13. Because tags will be stolen, however, Section 479.07(2), Florida Statutes, provided for replacement tags, and Section 479.07(5) (a) of the 1974 amendment to Chapter 479, Florida Statutes, contains similar provisions, while reciting that the permittee is responsible for maintaining a valid tag on its signs at all times. The Petitioner did not have these tags affixed to the subject signs. An order from the Department for removal of these signs was

       entered pursuant to its authorized procedure. The subject signs were removed. Since re-erection of these signs would violate the spacing law, they may not be rebuilt. Thus, the Department properly denied the Petitioner's request for replacement tags.

       
       

   14. The Department should not have accepted the Petitioner's payment for tag renewal fees for the years 1984 and 1985, because it knew in 1983 that the bags were not displayed, and it initiated enforcement proceedings in December of 1983. These fees for 1984 and 1985 should be refunded.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Petitioner's request for replalcement tags for permit

numbers 3988-2 and 3990-2 for signs on U. S. 17-92, 1.49 miles south of SR 436, in Seminole County, be DENIED, and that the fees paid by the Petitioner for the years 1984 and 1985 be REFUNDED.

THIS RECOMMENDED ORDER entered this 15th day of July, 1985 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 15th day of July, 1985.

COPIES FURNISHED:

Gerald S. Livingston, Esq. Post Office Box 2151 Orlando, Florida 32802-2151

Philip S. Bennett, Esq. Haydon Burns Building, MS 58

Tallahassee, Florida 32301-8064

Hon. Paul A. Pappas Secretary

Dept of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-004464

Orders for Case No: 84-004464