Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Jan. 27, 1987
Summary: Dispute which advertising sign company had lease for site
86-3608.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LAMAR OUTDOOR ADVERTISING, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3608T
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
) QUALITY OUTDOOR ADVERTISING, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4187T
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a consolidated hearing was held in the above-styled cases on December 18, 1986, in Bartow, Florida.
APPEARANCES
For Petitioner: Stephen Martin, Esquire
Lamar Outdoor 200 Lake Morton Drive, Suite 300 Advertising Lakeland, Florida 33801
For Petitioner: Gary Tabler, pro se Quality Outdoor 2831 Gary Lane
Advertising Lakeland, Florida 33803
For Respondent: Vernon L. Whittier, Esquire Department of Department of Transportation Transportation Haydon Burns Building
Tallahassee, Florida 32301
By letter dated August 18, 1986, (Exhibit 5), Department of Transportation (DOT), Respondent, returned Lamar Outdoor Advertising's (Lamar), Petitioner, application for an additional sign face for structure located on U.S. 98, 0.52 miles north of SR 60. As grounds for denying Lamar's application Lamar was advised of a pending hearing for a sign at the same site. Lamar requested a hearing.
By Memorandum of Returned Application dated August 6, 1986, Quality Outdoor Advertising (Quality) application for a sign along U.S. 98 approximately 0.5
miles north of SR 60 was denied because of the proximity of that location (within 1000 feet) to the site for which Lamar had earlier held a permit. These issues were consolidated for hearing.
At the hearing, Lamar called one witness, Quality called one witness and four exhibits were admitted into evidence.
Proposed Order Granting Permit has been submitted by Respondent Lamar.
Proposed findings 1 - 4 included therein are accepted and are included below. Those portions of findings 5 and 6 inconsistent with the findings below are rejected as not supported by the evidence.
FINDINGS OF FACT
In 1974 Tag No. 8670-10 was issued to Peterson Outdoor Advertising for a sign located on US 98 one-half mile north of SR 60 in Bartow, Florida. At the time the permit was issued, Peterson had a sublease to erect the sign from the operator of a garage located on this site who leased the property from the owner.
In 1980 Lamar bought out Peterson and acquired its assets including the permit for a sign on the garage property. At this time Peterson held a lease from Garfield Jones to occupy the site with one advertising structure. This lease was for a five year period ending December 31, 1984 (Exhibit 6). The lease contained the usual provisions for cancellation by the parties and for extensions beyond the expiration date.
In 1985, the garage tenant surrendered his lease, and the building was modified to operate as a feed store. Lamar's sign was removed to make way for the building modification as provided for by the lease.
On July 22, 1986, Quality executed a lease with Milton W. Bryan, Jr. (Exhibit 3) for a site for an advertising sign at premises located at 1710 N. Broadway in Bartow, Florida. This is the site for which both of these Petitioners seek permits. As compensation therefor the lessee agrees to pay
$1200 a year upon erection of the sign.
Subsequent thereto on August 6, 1986, Lamar obtained a lease from Bryan to erect a sign on this same property. As compensation therefor, Lamar provided Bryan with a sign along U.S. 17 south of Bartow at no cost.
Lamar also presented Exhibit 4 which was admitted without objection. This is an affidavit of Bryan that upon removal of Lamar's sign during construction of the Feed Depot building Lamar had right of first refusal to rebuild an outdoor advertising structure.
No evidence was submitted that Bryan offered or failed to offer Lamar right of first refusal before he executed the lease to Quality.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
All rights Lamar acquired in this site were those originally held by Peterson. Peterson was a sub-lessee of the lessee of the property while it was used as a garage. When lessee Jones surrendered his lease to the owner, Lamar's
lease was also surrendered and his structure was removed in accordance with the terms of the lease.
Prior to August 6, 1986, Lamar never had a lease with the owner of the property, Milton W. Bryan, Jr. Although in Exhibit 4 Bryan states Lamar had a right of first refusal to lease the site from him for an outdoor advertising structure, no documentation of this right was presented and Bryan's action in leasing the site to Quality in July 1986 belies the accuracy of Exhibit 4.
The lease executed by Bryan and Quality predates the lease between Bryan and Lamar and, without voiding this lease, Bryan was not legally able to lease the same property to Lamar.
From the foregoing it is concluded that Quality Outdoor Advertising has the only valid lease to erect an outdoor advertising sign on the property owned by Milton W. Bryan, Jr. and is entitled to a permit for such a sign as soon as the former tag issued to Peterson Outdoor Advertising (and now owned by Lamar) is revoked. Inasmuch as Lamar had no lease on the site when Quality obtained its lease the tag was revokable pursuant to Section 479.07(7), Florida Statutes. It is
RECOMMENDED that Quality Outdoor Advertising be issued a permit for a sign along U.S. 98, 0.6 miles north of SR 60 in Bartow, Florida and that Permit No. 8670-10 now held by Lamar Outdoor Advertising be revoked.
ENTERED this 27th day of January, 1987, in Tallahassee, Florida.
K. N. AYERS 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 27th day of January, 1987.
COPIES FURNISHED:
Stephen Martin, Esquire
200 Lake Morton Drive Lakeland, Florida 33802
Gary Tabler 2831 Gary Lane
Lakeland, Florida 33803
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Thomas Drawdy Secretary
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Docket for Case No: 86-003608
Orders for Case No: 86-003608
