STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OUTDOOR MEDIA OF PENSACOLA, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-4652T

) 88-5251T

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

LAMAR ADVERTISING OF )

PENSACOLA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

These consolidated cases were heard on Petitioner's request for an administrative hearing pursuant to Section 120.57(1), Florida Statutes. The cases were submitted to the Division of Administrative Hearings' Hearing Officer, Diane Cleavinger, on a stipulated record and were decided without formal hearing.

APPEARANCES

FOR PETITIONER: J. Arby Van Slyke

216 S. Tarragona Street, Ste. A Post Office Box 13244 Pensacola, Florida 32591

FOR RESPONDENT: Vernon L. Whittier, Jr., Esquire

Department of Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

FOR RESPONDENT: Robert P. Gaines

LAMAR ADVERTISING Seventh Floor Blount Building OF PENSACOLA, INC.: 3 West Garden Street

Pensacola, Florida 32501 STATEMENT OF THE ISSUES

The issue in this proceeding is whether a sign located approximately 3,790 feet east of State Road 296 on the North side of U.S. Highway 90 in Escambia County, Florida should be permitted or removed.

PRELIMINARY STATEMENT

The Department of Transportation notified Petitioner that an outdoor advertising sign it had erected with east and west sign facings was erected illegally and had to be removed because no valid permits had been obtained for the sign. Petitioner then applied for permits for each face of the sign it had erected. The Department notified Petitioner that it would not issue a permit for the proposed sign location. The denial of the permit was based on the site being located within 1000 feet of two sign permits issued to another advertising company. Petitioner requested a formal hearing to contest the Department's denial and removal order. The Petitioner's requests were forwarded to the Division of Administrative Hearings and the cases were opened under Case Nos.

88-4652T and 88-5251T. The two cases were consolidated for purposes of hearing.

Later, the parties suggested that part of Petitioner's case involved the validity of permits AK946-06 and AK947-06 held by Lamar Advertising of Pensacola, Inc.. Pursuant to the parties' suggestion, Lamar was made a party to this proceeding.

No formal hearing was held in this matter. The case was submitted to the hearing officer on a stipulated record. The record consisted of a joint Pre- hearing Stipulation, Addendum to the Pre-hearing Stipulation, and two depositions.

Petitioner filed its proposed recommended order on June 30, 1989.

Respondent, Department of Transportation, did not file a Proposed Recommended Order and indicated, after being contacted by telephone, that it did not intend to file a proposed recommended order. Respondent, Lamar, filed its proposed recommended order on June 30, 1989. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. On November 3, 1982, outdoor advertising sign permits AR946-06 and AK947-06 were issued by the Department of Transportation to Sandy Advertising Company. The permits were for a location on the west (north) side of U.S. Highway 90 approximately two miles east of its intersection with U.S. Highway 29 within the city limits of Pensacola, Florida. Sandy Advertising Company transferred those permits to Lamar Advertising Company of Pensacola, Inc.

   Annual renewal payments have been made each year in a timely manner by Lamar Advertising Company of Pensacola, Inc. No permit tags have been displayed at the Lamar sites and no sign has been built or maintained at the Lamar sites since issuance of the permits.

   
   

2. Without having submitted an application for a permit to the Department of Transportation, Outdoor Media of Pensacola, Inc., obtained a building permit from the City of Pensacola for the erection of an outdoor advertising sign located in Escambia County approximately 3,790 feet east of State Road 296 on the north side of U.S. Highway 90. Pursuant to the building permit, Outdoor Media erected a sign at that location. The sign had an east and a west face and was less than 500 feet from the site for which permits AK946-06 and AK947-06 were issued. Each face of the sign required a separate permit from the Department of Transportation.

3. Learning of the erection of Outdoor Media's sign, the Department notified Petitioner to remove it. Instead Outdoor Media applied for two sign permits for each face of the sign.

   
   

4. On August 8, 1988, the Department of Transportation received Petitioner's applications for a state outdoor advertising permit. The applications were for each face of the sign located on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. The applications were denied on the ground that two other permits, permit AK946- 06 and permit AK947-06, had been issued to Lamar Advertising of Pensacola, Inc., for a location on the same side of the highway within one thousand feet of Petitioner's site. The spacing impediment caused by the earlier permits is the sole basis for denial of Petitioner's permit applications by the Department of Transportation. Petitioner meets all other permit requirements.

   
   

5. In 1984, the legislature extensively revised Chapter 479, Florida Statutes. See Chapter 84-227, Laws of Florida. Of particular concern in this proceeding are the changes to Section 479.07, Florida Statutes, and whether those changes apply to permits AK946-06 and AK947-06. The revisions to this section introduced very specific tag display as well as sign erection and maintenance requirements for all permits. The revisions increased the fee schedules and provided that all permits expire annually on January 15. Section 479.07, Florida Statutes, as amended states in part:

   
   

   (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void.

   (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag.

   1. A permit is valid only for the

      location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100.

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

   (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30.

   Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice.

   Permit tags which are not renewed shall be returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment.

   (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the

   alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department

   shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

   1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.

   2. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

   The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side- to-side, stacked, or double-faced signs at the permitted sign site.

   1. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign:

      1. Exceeds 50 feet in sign structure height above the crown of the main- traveled way, if outside an incorporated area;

      2. Exceeds 65 feet in sign structure height above the crown of the main- traveled way, if inside an incorporated area; or

      3. Exceeds 950 square feet of sign facing including all embellishments.

   2. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming.

   
   

6. The effective date(s) of the amendments to Section 479.07, Florida Statutes, is stated in Section 27 of Law 84-227. Section 27 specifically and explicitly made permits issued prior to June 30, 1984 subject to the new provisions of Law 84-227. Section 27 states:

   
   

   This act shall take effect October 1, 1984, except that the amendments to Section 479.07

   F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied].

   
   

7. In spite of the language of Section 27, it is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display

   tags within thirty (30) days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with Sections 479.07(5)(b) and (8)(a), Florida Statutes. While DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes, it is applied statewide and has been held to be an invalid unpromulgated rule in Case NO. 5227R, Final Order issued December 29th, 1988.

   
   

8. DOT relies upon the definition of "non-conforming" signs given in Section 479.01(12), Florida Statutes. Section 479.01(12), Florida Statutes, states in part:

   
   

   `Nonconforming sign' means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. [Emphasis supplied.] 1/

   
   

9. DOT does not rely upon the exceptions listed in Section 479.16, Florida Statutes, as amended by Chapter 84-227. The exceptions are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits."

   
   

10. It is DOT's view that permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained or displayed. These "secret signs" can only be discovered after the application is submitted and DOT checks its computer records. The effect of DOT's interpretation is that pre- 1984 outdoor advertising sign permits can exist into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as the permittee renews its permit. This interpretation is directly opposed to the legislature's purpose in enacting the 1984 amendments, i.e., the prevention of advertisers stockpiling unused sites and permits. Moreover, this interpretation is contrary to the pre- or post-1984 statutory language and is not a reasonable interpretation of the statute.

    
    

11. DOT bases it's interpretation on the ground that the constitution prohibits the retroactive application of the 1984 amendments to permits existing prior to the effective date of those amendments. DOT did not offer any evidence as to the accuracy of its view on the requirements of the constitution. Failing such evidentiary support, DOT has failed to carry its burden of proof when utilizing an unpromulgated rule on a case by case basis.

    
    

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

    
    

13. Section 479.07, Florida Statutes, was amended by Chapter 84-227, Laws of Florida, to require that parties obtaining outdoor advertising permits post their permit tags within thirty (30) days and erect their signs within two hundred seventy (270) days or their permits would automatically become void. The amendment became effective July 1, 1984.

14. The amendment also expressly and explicitly provided for treatment of pre-July 1, 1984 permits by stating"

    
    

    . . . any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied].

    
    

15. Section 479.01(12) only makes exceptions for nonconforming "signs lawfully erected."

    
    

16. Section 479.07(9)(c) only provides that nothing in subsection (9), pertaining to spacing requirements or permitting of new signs after July 1, 1984, may be construed to cause a sign which is conforming on the effective date of the Act to become nonconforming. See the definition of "sign" contained in Section 479.01(14), Florida Statutes, and of "erect" contained in Section 479.01(4), Florida Statutes.

    
    

17. However, in spite of the clear language of the statutes, DOT interprets the term "permitted signs" as including permits issued prior to July 1, 1984, but which have no sign erected on the site. DOT has placed an interpretation upon the statutes that is not apparent from their language.

    
    

18. The plain language of Sections 479.01(12) and 479.07(9)(c) only applies to signs which have been constructed on the permit site. The sections do not apply where no sign has been constructed. Since no signs were ever erected on the sites covered by permit AK946-06 and AK947-06 neither Section 479.01(12) nor 479.07(9)(c) applies to Lamar's permits.

    
    

19. Further, DOT interprets the amendment to Section 479.07, now codified as Section 479.07(5)(a), requiring permit display and sign erection within a specified time period, to be applicable only to permits initially issued after the effective date of July 1, 1984. The agency has not enforced that subsection against preexisting permits and renewals of such preexisting permits, irrespective of whether or not a sign has ever been erected on the permitted site. However, the agency has applied and enforced against preexisting permits all other portions of the amendments, including but not limited to the mandatory recurring uniform annual January 15 renewal date and increased renewal fee with regard to preexisting permits. The agency has taken this approach on the grounds that the constitution prohibited the amendment from being applied retroactively to such preexisting permits.

    
    

20. In Administrative Case NO. 88-5227R, this interpretation was held to be an invalid unpromulgated rule. However, agencies have the choice of properly promulgating rules and applying them with the full force and effect of law or of fully explicating those policies by demonstrating the policies' reasonableness and factual accuracy on a case by case basis in Section 120.57 proceedings. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Amos v. Department of Health and Rehabilitative Services, 444 So.2d (Fla, 1st DCA 1983); Gulf Coast Home Health Services Of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987).

    
    

21. As noted earlier, the sole reason for DOT's policy was that it was required by the constitution. Such a bare bones claim as "the constitution requires it" is tantamount to the claim that was asserted in Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980)

    that a previous statutory interpretation was "wrong as a matter of law." In Florida Cities, no record foundation was made for the non-rule policy being followed in that case. The Florida Supreme Court held that such a rationale was not sustainable absent adequate record support for the application of non-rule agency policy.

    
    

22. In this case, DOT has failed to affirmatively show the reasonableness and factual accuracy of the policy that sign permits which were issued prior to July 1, 1984, should not be subject to Section 479.07(5), Florida Statutes, enforcement and should be treated as if they constituted, erected and maintained signs for purposes of Section 479.07(9), Florida Statutes. It is doubtful that DOT could ever show the accuracy of its view of the constitution. The case law in the area clearly establishes that permits such as these are not property in the constitutional sense. Such permits do not confer any right, estate or vested interest, and are revocable at the will of the legislature. Such permits are also subject to new permit conditions. State ex rel First Presbyterian Church of Miami v. Fuller, 187 So. 148 (Fla. 1939); City of Miami Beach v. Deauville Operating Corp., 129 So.2d 185 ( Fla. 3d DCA 1961) and Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 ( Fla. 1st DCA 1977). Moreover, the 1984 amendments to Chapter 479 do not require retroactive application to be applied to permits AK946-06 and AK947-06. The new permit conditions were applicable only upon the expiration of the old permits on January 15. Thereafter, the new permit conditions applied to the renewal. Therefore, since Lamar did not build any signs on the sites covered by either permit AK946-06 or AK947-06 within 270 days of its first renewal after the effective date of the statutory revisions to Chapter 479, Florida Statutes, and has not posted the required tags at the sites, permits AK946-06 and AK947-06 are void and cannot be used as a basis for denying Petitioner's sign applications. As in Florida Cities, having failed to establish the reasonableness and accuracy of its policy, the foregoing policy cannot form the basis of the permit denials. This is especially true in light of the fact that DOT's policy ignores the clear language of the statutory amendments.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order

voiding Permits AK946-06 and AK947-06, held by Respondent, Lamar Advertising

Company, Inc., and granting the applications of Outdoor Media of Pensacola, Inc.

DONE and ENTERED this 23rd day of May, 1990, at Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990.

ENDNOTES

1/ The new statute defines "erect" at Section 479.01(4) and "sign" at Section 479.01(14) as follows:

(4) "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign.

* * *

(14) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to- back, side-to-side, stacked, or double- faced display, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department.

Both of these foregoing subsections are substantially the same as their predecessors in the pre-1984 statute.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-4562T

The facts contained in paragraphs 1,2,3,6,7,8,9, and 10 of Petitioner's proposed findings of fact are adopted in substance, insofar as material.

The facts contained in paragraphs 4 and 5 of Petitioner's proposed findings of fact are subordinate.

The facts contained in paragraphs 1, 2, 3, 4, and 5 of Respondent's proposed findings of fact are adopted in substance, in so far as material.

COPIES FURNISHED:

J. Arby Van S1yke

216 S. Tarragona Street, Ste. A Post Office Box 13244 Pensacola, Florida 32591

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Robert P. Gaines

Seventh Floor Blount Building

3 West Garden Street Pensacola, Florida 32501

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 88-004652

Orders for Case No: 88-004652