STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0111T

) HEADRICK OUTDOOR ADVERTISING, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on March 31, 1987, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Charles J. Gardner, Esquire

Department of Transportation Haydon Burns Building,

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

For Respondent: James K. Baughman

Outdoor Headrick Outdoor, Inc

15 West Strong Street, Suite 228-B Pensacola, Florida 32501

ISSUES

The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location.

The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.

FINDINGS OF FACT

1. Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising.

   
   

2. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner.

   
   

3. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner.

   
   

4. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

   Section 479.07(7), Florida Statues, provides:

   
   

   A permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site.

   
   

6. The property owner's permission, in writing, is a prerequisite to issuance of a permit for an outdoor advertising sign and for the maintenance of the sign. Lamar Advertising Company v. Department of Transportation 490 So.2d 1315 (Fla. 1st DCA 1986)

   
   

7. Pursuant to both section 479.07(7) and Lamar, supra, it is clear that the continued permission of the property owner is necessary to maintenance of a sign. The evidence was undisputed that Headrick did not have the continuing permission of the owner to maintain the signs permitted by Permits AG820-2 and AG821-2. While the owner may have signed a lease in 1986, the owner quite clearly revoked any permission for Headrick to maintain the signs during 1985. Headrick produced no valid lease to show continued permission of the owner. Further, the lease which Headrick did introduce contained no date and therefore

does not and cannot establish valid permission of the owner. Finally, by Headrick's own admission, it no longer has permission of the landowner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked.

DONE AND ENTERED this 11th day of May, 1987, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street

Pensacola, Florida 32503

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Docket for Case No: 86-000111

Orders for Case No: 86-000111