STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN STATE DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 86-0451T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on April 24,1986, at Bartow, Florida.

APPEARANCES

For Petitioner: Claude C. Sweat, Esquire

Post Office Drawer B5 Lakeland, Florida 33802

For Respondent: Charles G. Gardner, Esquire

Department of Transportation, Haydon Burns Building Tallahassee, Florida 32301

By letter dated January 20, 1986, Sun State Development Corporation, Petitioner, contests the denial of its application to erect an outdoor advertising sign on its property on the east side of SR 37, 1710 feet north of CR 540A in Polk, County, Florida. The application was denied by the Department of Transportation, (DOT), Respondent, because it was within 1000 feet of an existing permitted sign.

At the hearing Petitioner called three witnesses, Respondent called one witness who had been earlier called by Petitioner, and five exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. There is no dispute regarding the facts presented. Accordingly the findings of both parties are accepted. This creates a discrepancy which neither party produced evidence to resolve and c which, in the interest of fair administration of the outdoor advertising laws and regulations, should be resolved by Respondent.

FINDINGS OF FACT

1. Petitioner, on May 20, 1985, submitted an application for an outdoor advertising sign on his property alongside SR 37, 2000 feet north of the intersection of Brannen Road (CR 540A) (Exhibit 5).

2. This application was disapproved by Memorandum of Returned Application dated July 22, 1985, for the specified reason that it did not meet the spacing requirement because it was in conflict with permit No. 2595-12 held by Lamar Citrus. (Exhibit 5)

   
   

3. Tag No. 2595-12 was issued to Peterson Outdoor Advertising (Peterson) on application approved December 14, 1976 for a sign, along SR 37,500 feet south of Brannen Road on the right side of SR 37 facing north. In the space on this application for DOT use only was written: "Sec 548 N/B 22.68 Mi 50'R F/N 34'H" (Exhibit 1). This shows the approved location to be at mile 22.68 north bound with the sign facing north. Exhibit 1 further indicates the site was transferred to Lamar Citrus who is the current owner of that permit.

   
   

4. The tag numbers originally issued to Peterson were lost and new tag numbers for the sign erected by Lamar in December 1985 have been issued.

   
   

5. The sign inventory maintained by the DOT sign inspector in this district showed the permit for the Lamar structure to be at mile 22.07. Petitioner's application is for a sign at mile 22.05 which is within 1000 feet of the sign erected by Lamar in December 1985.

   
   

6. At the time Petitioner applied for the sign that is the subject of these proceedings Lamar had no sign erected. Lamar acquired a lease on property consisting of part of the abandoned Seaboard Coastline Railroad right-of-way, which abuts Petitioner's property on the north, subsequent to Petitioner filing the application which was here denied by Respondent. The sign erected on this property in December 1985 is at mile 22.07.

   
   

7. When Petitioner applied for the permit here considered, the initial site visit by the DOT sign inspector resulted in a recommendation that Petitioner move his proposed sign location about 100 feet to the south to be at least 1000 feet from the Lamar permit. This Petitioner did. However, his application was thereafter disapproved because of the above noted spacing requirement.

   
   

8. Lamar was not a party to these proceedings and submitted no explanation of how the originally approved site 500 feet south of Brannen Road at mile 22.68 was shown on the DOT inventory at mile 22.07. No evidence was presented by DOT that Lamar or its predecessor, Peterson, had ever obtained a permit for the relocation of the site to mile 22.07 as shown in the Department sign inventory.

   
   

9. Inspectors for DOT rely upon their sign inventory in determining the permitted site locations rather than the description shown on the original application.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of these proceedings.

    
    

11. This case presents disturbing questions. The reason given for denial of Petitioner's application was that the proposed location was within 1000 feet of a site authorized for Tag No. 2595-12. The application submitted by Peterson Outdoor Advertising which led to the issuance of Tag No. 2595-12 was for a site along SR 37, 500 feet south of Brannen Road. The location of this site was described by DOT on this application as mile 22.68.

12. Petitioner applied for a permit alongside SR 37 either 2000 feet or 1710 feet NORTH of Brannen Road. (The original distance shown was 2000 feet which was crossed out and 1710 was written in red ink for this distance).

    
    

13. Exhibit 4 clearly shows Petitioner's property to be south of Brannen Road 1500 to 1800 feet. This indicates the block labeled north on the application, which was marked to show the direction from the intersection of Brannen Road, is erroneous. Throughout these proceedings all parties have treated this application as if the south block was x-ed. Obviously a site 1700 feet north of Brannen Road is more than 1000 feet from a site 500 feet south of Brannen Road.

    
    

14. It is significant that when an inspector first visited the site for Petitioner's proposed sign the existing permit for the Lamar location, 500 feet south of Brannen Road, was not on the abandoned railroad right-of-way abutting Petitioner's property on the north. How the mile 22.68 shown on Exhibit 1 was changed to mild 22.07 in the inspector's inventory of signs was not explained to any degree of satisfaction.

    
    

15. Five hundred feet south of Brannen Road would locate the site on parcel marked PG13-A on the tax assessor's map. (Exhibit 4). This site is approximately 900 feet north of the property on which Lamar erected its sign in December 1985 well after Petitioner's application was filed.

    
    

16. These facts raise implications of possible improprieties on the part of both DOT personnel and Lamar Citrus. Under these circumstances it is insufficient to say that Petitioner has the burden to show that Lamar's sign was erected on a site for which it had no permit when Respondent relied solely on the district sign inventory and did not independently search its records to discover how the Lamar sign, authorized to be erected 500 feet south of Brannen Road, was allowed to be erected some 1500 feet south of Brannen Road.

    
    

17. Peterson applied for a sign permit at a site along SR 37 500 feet south of Brannen Road. The figure of 22.68 miles was placed on Exhibit 1 by DOT personnel as was the figure mile 22.07 in the sign inventory record. One or both of these figures is erroneous and the only party able to resolve this conflict is Respondent.

    
    

18. For the above reason it is insufficient to say that Petitioner has failed to show that its proposed location is more than 1000 feet from an existing permitted sign. Petitioner has shown that its proposed location is more than 1000 feet from the site for which Tag No. 2595-12 was issued. In the memorandum of returned application (Exhibit 5) the site for Tag No. 2595-12 was given as the reason for denial of Petitioner's application.

    
    

19. Under the circumstances this application cannot be approved. However, Lamar has erected a sign at a location different from thee location approved December 14, 1976. The site applied for was 500 feet south of Brannen Road. If mile 22.68 showed on Exhibit 1 is erroneous the location which was approved is still located 500 feet south of Brannen Road. The site approved was the site applied for and that site is 500 feet south of Brannen Road regardless of the mile description of Brannen Road less 500 feet.

    
    

20. From the foregoing it is concluded that Petitioner has shown that the location of this proposed sign is more than 1000 feet from the approved site for which Tag No. 2595-12 was issued; however, due to circumstances which need clarification, a permitted sign has been erected by Lamar which is within 1000

feet of Petitioner's proposed site. Until this discrepancy is resolved, the applied for permit cannot be granted. It is

RECOMMENDED that the application be denied. However, if it is subsequently determined that Lamar lacks authority for the location where its sign is erected, Petitioner should be advised that it may re-apply without prejudice and without losing its place in line vis a vis Lamar. If Lamar shows that it was properly authorized to erect the sign that was erected in December 1985, some 1400 feet south of Brannen Road, then it is recommended Petitioner's application be disapproved.

Entered this 3rd day of June, 1986.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1986.

COPIES FURNISHED:

M. A. Todd

Sun State Homes

4110 South Florida Avenue Lakeland, Florida 33803

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32301

Dallas Gray, Deputy State Right of Way Administrator Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

SUN STATE DEVELOPMENT CORPORATION

Petitioner,

vs. CASE NO. 86-0451T

DEPARTMENT OF TRANSPORTATION

Respondent,

/

FINAL ORDER

The Record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer. Said Order is made a pact hereof, copy attached. None of the parties filed exceptions to the recommended order. The introductory material and Findings of Fact made by the Hearing Officer are adopted and made a part of this Final Order except for the finding set forth in the Conclusions of Law on page 4 of the Recommended Order stating: "These facts raise implications of possible improprieties on the part of both DOT personnel and Lamar Citrus." As stated by the Hearing Officer, the quoted finding is one of fact, even though it is listed as part of the Conclusions of Law. The said finding of fact is not supported by competent substantial evidence.

Valid sign permit numbers AQ674 and AQ733 are currently attached to a sign structure owned by Lamar which would create a spacing conflict with Petitioner's proposed sign site. (T: 9-12) As requested by Petitioner, the Department produced the original permit application form for the Lamar sign structure which was dated December 14, 1976. (Exhibit Number 1, T: 10-22) The sign structure bearing the said permits is located differently than the location specified on the original application form. (T: 8-38). According to the Department's current sign inventory, Lamar's structure with permit numbers AQ674 and AQ733, is located at the proper site. (T: 18) Lamar Outdoor Advertising Company (Lamar) was not a party to these proceedings.

Petitioner failed to show that the site location specified on the original permit application from Lamar is still the current legally permitted location. The site location on the original application differs from the actual location of the existing Lamar structure. Since 1976, the permit location may have been changed for a number of reasons such as measurement by Department personnel, remeasurement, modification of the record, use of better measuring equipment, etc. (T: 75-84) No impropriety of actions by Department personnel is indicated.

The Department accepts the remaining Conclusions of Law of the Recommended Order. The permit application for the proposed sign of Sun State Development Corporation is denied. Petitioner may reapply without prejudice and maintain its order of preference for the requested location should it be shown that the signs of Lamar are not in the properly permitted location.

DONE AND ORDERED this 2nd day of September, 1986.

THOMAS E. DRAWDY SECRETARY

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

COPIES FURNISHED TO:

K. N. AYERS HEARING OFFICER

DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING

2009 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32301

CLAUDE C. SWEAT, ESQUIRE POST OFFICE DRAWER BS LAKELAND, FLORIDA 33802

CHARLES GARDNER, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, MS 58 TALLAHASSEE, FLORIDA 32301

DALLAS GRAY, DEPUTY STATE RIGHT OF WAY ADMINISTRATOR

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 86-000451

Orders for Case No: 86-000451