STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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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 8, 1986, in Deland, Florida. The transcript was filed on May 5, 1986, and the parties requested

30 days thereafter to submit proposed findings of fact and conclusions of law. To date nothing has been received from either party.

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

For Respondent: Philip S. Bennett, Esquire

Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064

By memorandum dated October 8, 1985, the Department advised the Petitioner that its application for a sign permit on the east side of State Road 434, 350 feet north of State Road 50, facing south, in Orange County, Florida, was denied. The reason for denial was that this sign site violated the spacing rule because of a conflict with permits held by Maxmedia, Inc. The issue is whether the Department correctly denied the Petitioner's permit application.

FINDINGS OF FACT

1. In May of 1980, the Petitioner, Peterson Outdoor Advertising purchased a sign from Lamar Advertising Company. This sign is located on the east side of State Road 434, approximately

   350 feet north of State Road 50 in Orange County, Florida.

   
   

2. This sign is a stacked, back to back structure, having two faces which face north and south. The face which is the subject of this proceeding is the south face which faces northbound traffic on State Road 434. This face is visible to traffic on the main-traveled way of State Road 50.

   
   

3. When the Petitioner purchased the subject sign from Lamar, it checked the records of Lamar, and the records of the Department of Transportation and the orange County Building and Zoning Department, to ascertain that the sign had all required building permits, electrical permits, county permits and state permits, and that the sign site was a legal location. The sign had all the permits that were required.

   
   

4. The relevant document from the Department of Transportation pertaining to the subject sign was a letter dated March 13, 1978, from the Department's district office to Lamar. This letter returned the permit applications that had been submitted by Lamar in February of 1978 seeking permits for the subject sign, for the reason that "your applications do not require a state permit".

   
   

5. The parties stipulated that, prior to May of 1984, the personnel of the Department's Fifth District gave advice that signs along non-controlled roads within 660 feet of a federal-aid primary highway did not need a state sign permit.

   
   

6. The Petitioner relied on the determination of the Department that the subject sign site did not require a state permit, and purchased the sign from Lamar.

   
   

7. In May of 1984 the Fifth District personnel of the Department corrected their erroneous prior interpretation of the statutes and rules they administer, and permits were thereafter required for all signs within 660 feet of a federal-aid primary highway if they were visible from the main-traveled way of the controlled road.

   
   

8. On July 1, 1985, the Department's outdoor advertising inspector advised the Petitioner that the south faces of the

   subject sign required a state permit. These are the faces in question in this proceeding.

   
   

9. In compliance with this advice from the Department, the Petitioner filed permit applications for both the north faces and the south faces of the subject sign. The Department returned the applications for the north faces for the reason that a permit was not required. The north faces are not involved in this proceeding.

   
   

10. The Department denied the Petitioner's applications for the south faces by memorandum dated October 8, 1985, for the reason that these faces conflicted with permits held by Maxmedia, Inc., in that they were not located more than 1,000 feet from the Maxmedia sign.

    
    

11. The Maxmedia permits authorized a sign which was erected at a point 740 feet from the subject sign of the Respondent. The permits held by Maxmedia were issued by the Department on May 8, 1984.

    
    

12. Prior to July 1, 1984, the spacing rule for signs on a federal-aid primary highway required 500 feet between signs. On July 1, 1984, this spacing requirement was increased to require 1,000 feet on a federal-aid primary highway. State Road 50 is a federal-aid primary highway, and the area within 660 feet from State Road 50 is a controlled area.

    
    

13. The Petitioner's sign 350 feet north of State Road 50 was more than 500 feet from any other structure prior to July 1, 1984. It is not more than 1,000 feet from the Maxmedia signs now, however.

    
    

    CONCLUSIONS OF LAW

    
    

14. 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.

    
    

15. When Lamar Advertising Company applied for a permit for the subject sign in 1978, a state sign permit was required because the location was within 660 feet from State Road 50, a federal-aid primary highway, and the south face of this sign was visible from the main-traveled way of State Road 50. Section 479.01(1),

    Florida Statutes (1977), defined sign as any billboard whose copy was visible from the main-traveled way of a federal- aid primary highway. Section 479.07(1), Florida Statutes (1977), prohibited the erection of a sign outside any incorporated city or town without first obtaining a state permit from the Department. The controlled portion of a federal-aid primary highway was all of the area within 660 feet thereof, pursuant to Section 479.11(1), Florida Statutes (1977), and beyond 660 feet outside of urban areas if the copy on the sign was intended to be read from the main-traveled way of a federal-aid primary highway, pursuant to Section 479.11(2), Florida Statutes (1977).

    
    

16. Nevertheless, the Lamar permit applications were returned to Lamar with a letter from the Department's district office that the permit applied for was not required. Pursuant to this advice from the Department, the subject sign was built. It was subsequently sold to the Respondent who purchased the sign in reliance upon the Department's advice that no permit was needed.

17. Prior to July 1, 1984, Rules 14-10.06(1)(b)3. and 14- 10.09(2), Section III, Spacing of Signs, 3., Florida Administrative Code, prescribed a minimum spacing of 500 feet between signs on a federal-aid primary highway. The distance between the Respondent's sign and the Maxmedia sign is 740 feet; thus, prior to July 1, 1984, the spacing requirement was met.

1. On July 1, 1984, Section 479.07(9)(a)2., Florida Statutes (1984), became effective. This statute requires 1,000 feet of spacing between signs on a federal-aid primary highway. The Respondent's sign being 740 feet from the Maxmedia sign, it cannot meet this spacing requirement. Section 479.07(1), Florida Statutes (1984), also became effective on July l, 1984, prohibiting any sign from being maintained on a federal-aid primary highway or on the State Highway System outside an incorporated area without a state sign permit. Since the subject sign cannot meet the new spacing requirements, it cannot receive a state permit under the present law.

   
   

2. However, but for the erroneous interpretation of the statutes and rules by Department personnel, the permit application submitted by Lamar in February of 1978 should have been granted, and the requested permit should have been issued. In May of 1984 the misinterpretation of the law by Department personnel was corrected, and pursuant to the correct interpretation a permit application by the Respondent for the subject sign would not have been returned, but would have been granted because there was then no spacing violation.

   
   

3. It would not be equitable to deny to the Respondent the permit that the Department should have issued in 1978, but did not because of an erroneous interpretation of the statutes and rules the Department administers. The Department cannot misinterpret its statutes, and rules to the detriment of an outdoor advertiser, and then force a violation on the outdoor advertiser who acted in reliance on the Department's erroneous interpretation. [See Wainwright v. Department of Transportation, 11 FLW 938 (Fla. 1st DCA, April 25, 1986), Food-N-Fun v. Department of Transportation,

11 FLW 1654 (Fla. 1st DCA, August 8, 1986), C-Sand Company v. Department of Transportation, Case No. BJ-392 (Fla. 1st DCA, September 9, 1986), Tri-State Systems, Inc., v. Department of Transportation, Case No. BJ-426 (Fla. 1st DCA, August 12, 1986), and Tri-State Systems, Inc., v. Department of Transportation, Case No. BJ-428 (Fla. 1st DCA, September 11, 1986). Unless the Respondent's permit application can be granted, its sign is in jeopardy, and subject to removal. Since this would be a totally inequitable result, the Department should acknowledge its mistake in declaring that a permit was not required in March of 1978, and issue the permit initially applied for by Lamar in 1978, and reapplied for by the Respondent in 1985.

RECOMMENDATION

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

RECOMMENDED:

That the application of Peterson Outdoor Advertising for a permit on the east side of State Road 434, approximately 350 feet north of State Road 50, facing south, in Orange County, Florida, be GRANTED.

THIS RECOMMENDED ORDER entered on this 29th day of October, 1986, in Tallahassee, 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 29th day of October, 1986.

COPIES FURNISHED:

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064

Thomas Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

A. J. Spalla

General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-004337

Orders for Case No: 85-004337