STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OFTRANSPORTATION, )

)

Petitioner, )

)

vs. )

) CASE NO. 85-4165T HEADRICK OUTDOOR ADVERTISING, )

)

Respondent. )

and )

)

LAMAR ADVERTISING COMPANY, )

)

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 April 17, 1986, in Chipley, Florida. The transcript was filed on May 7, 1986, and the parties requested 30 days thereafter to submit proposed findings of fact and conclusions of law. The Intervenor's proposed findings of fact are accepted. The Respondent's proposed findings are not findings f fact, but are conclusions of law which are not required to be specifically accepted or rejected. The Department did not submit proposed findings of fact, but filed instead a memorandum of law.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

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

For Respondent: William G. Warner, Esquire

Post Office Box 335

Panama City, Florida 32402 For Intervenor: Bobbie Palmer, Esquire

Post Office Box 12950 Pensacola, Florida 32576

The issue presented is whether two outdoor advertising permits held by the Respondent may be revoked for failure to maintain the permission of the owner of the sign site to have a sign at the permitted location.

FINDINGS OF FACT

1. This proceeding was initiated when the Department notified the Respondent, Headrick Outdoor Advertising, that its permits numbered AD089-10 and AD090-10 were being revoked because the Respondent no longer had permission of the property owner to maintain a sign there, as required by Section 479.07(7), Florida Statutes.

   
   

2. Permits numbered AD089-10 and AD090-10 authorized an outdoor advertising sign on U.S. 98, 100 feet west of Hickory Avenue in Bay county, Florida.

   
   

3. The record owner of the property where the above permits authorized the Respondent to locate a sign is E. Clay Lewis III, Trustee, who took title by deed in 1977.

   
   

4. By letter dated August 9, 1985, the property owner notified the Respondent that the subject property was being sold, and that the Respondent had 30 days to remove the sign from the property and cancel the outdoor advertising permits for this sign.

   
   

5. By letter dated October 17, 1985, the property owner advised the Department that the Respondent no longer had a valid lease for the site where the subject permits authorized a sign, and that the signs had been removed.

   
   

6. Documents marked Exhibits 1-3 reflect the foregoing, as does the testimony of the Department's outdoor advertising inspector. This evidence was received without objection from the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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 and permits, as prescribed by Chapter 479, Florida Statutes.

   
   

8. Section 479.07(7), Florida Statutes requires an outdoor advertising permittee to maintain the permission of the owner of the sign site at all times. Accordingly, the Department properly notified the Respondent that the subject permits were invalid when it received information, subsequently corroborated by documents, that the Respondent no longer had the property owner's permission to locate a sign at the permitted site.

   
   

9. The Respondent did not present any evidence at the administrative hearing. The testimony and documentary evidence presented by the Department were received without objection. Although hearsay in nature, this evidence was not disputed, controverted, rebutted, or refuted. Section 90.104(1)(a), Florida Statutes (the Evidence Code), requires a timely objection to be made in order to assure the exclusion of evidence. Objections to evidence may be waived, as may any other right, such as the right to a jury trial, etc., and the failure of the Respondent to object to or otherwise raise an issue concerning the Department's documentary evidence operated as such a waiver.

   
   

10. Section 479.08, Florida Statutes, authorizes the Department to revoke any sign permit issued by it when it is determined that the permittee has violated any of the provisions of Chapter 479. It is a violation of Section 479.07(7), Florida Statutes, for a permittee to fail to maintain the permission of the owner of the sign site to have a sign there. Since the Respondent did not present any evidence to show that it had the permission of the property owners to maintain a sign at the permitted site, and the record reflects that it does not, the Respondent is in violation of Section 479.07(7), Florida Statutes, and the subject permits may be revoked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that permits numbered AD089-10 and Ad090-10 held by the Respondent, Headrick Outdoor Advertising, be revoked.

THIS RECOMMENDED ORDER entered this 31st day of July, 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 31st day of July, 1986.

COPIES FURNISHED:

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

William G. Warner, Esquire

P. O. Box 335

Panama City, Florida 32402

Bobbie Palmer, Esquire

P. O. Box 12950 Pensacola, Florida 32576

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

A. J. 8palla, Esquire General Counsel

Department of Transportation

562 Haydon Burns Bldg. Tallahassee, Florida 32301

Docket for Case No: 85-004165

Orders for Case No: 85-004165