STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3807T

) AD-CON OUTDOOR ADVERTISING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 13, 1989, in Fort Pierce, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rivers H. Buford, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Garrison M. Dundas, Esquire Swann and Haddock, P.A.

300 South Sixth Street Fort Pierce, Florida 34950

For Respondent: Richard J. Pozniak

Ad-Con Outdoor Advertising Post Office Box 541

Fort Pierce, Florida 34954 STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Respondent's outdoor advertising permit AY 242-35 should be revolked.

PRELIMINARY STATEMENT

By letter dated May 16, 1989, Petitioner notified Respondent that, because it had received information reflecting that Respondent no longer had the property owner's permission to maintain the sign authorized by outdoor advertising permit AY 242-35, Petitioner intended to revoke the permit. The letter further advised Respondent that it had the opportunity to request a formal hearing on the matter before any final action was taken. Respondent timely requested such a hearing and on July 18, 1989, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

Petitioner did not present any testimonial evidence at hearing. It did, however, offer into evidence four exhibits, all of which were admitted by the Hearing Officer. The lone witness to testify on behalf of Respondent was Richard J. Pozniak, one of its corporate officers. Respondent, like Petitioner, also offered into evidence four exhibits. All of Respondent's exhibits were received into evidence.

The parties were advised on the record before the close of the hearing that their post-hearing pleadings had to be filed within fifteen days of the date of the filing of the hearing transcript with the Division of Administrative Hearings. The hearing transcript was filed with the Division on October 13, 1989. Petitioner filed a proposed recommended order that same day. The proposed findings of fact contained in Petitioner's proposed recommended order have been carefully considered and are addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing pleading.

FINDINGS OF FACT

Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:

1. Marilyn Bethel owns Tract B of Unit 3 in Indian River Estates in St. Lucie County, Florida [hereinafter referred to as the Property].

   
   

2. On or about May 14, 1988, Bethel entered into a lease agreement with Respondent. The agreement, which was signed by Bethel and Respondent's Secretary Treasurer, Richard Pozniak, provided as follows:

   
   

   The undersigned lessor, his [sic] heirs or assigns, in consideration of the annual sum of TWELVE HUNDRED (1,200) Dollars paid by AD-CON OUTDOOR ADV., INC., its heirs or assigns, hereafter known as Lessee, hereby grants to it or assigns the exclusive right to use and occupy the premises known as, [the Property] space for a south facing sign[,] for the purpose of constructing and maintaining advertising displays and devices, including necessary equipment for a period of Year to Year years from 6/1/88 19 .

   First option to lease both North and South facing locations will be granted to the Lessee by the Lessor for the above mentioned location at the termination date of the Lease drawn between the Lessor and National Outdoor Adv due to expire in [sic] April 1, 1989, for an additional 1,200. Total due will be $2,400.

   It is further agreed:

   In the event said property is to be improved by the erection of a permanent building, the agreement may be cancelled by giving sixty (60) days written notice to the Lessee prior to the commencement

   of construction. If the title passes from the present owner, this agreement may be cancelled by giving sixty (60) days written notice to the Lessee. In either case, the Lessee shall be refunded all unearned prepaid rental. The right is given to the Lessee to cancel this agreement by giving sixty

   (60) days written notice if the advertising value of the premises is diminished by any law or regulation, obstruction of view, or change of traffic.

   The Lessor agrees not to obstruct, nor to permit any other person to obstruct, the view of the advertising displays or devices constructed on said premises in any manner whatsoever.

   In the event this agreement is terminated before the end of its term (or the renewal thereof) the Lessor agrees to refund to the Lessee all unearned prepaid rental.

   It is understood that all display or necessary equipment placed on above property by Lessee is at all times its property and subject to its removal at any time.

   After the term (or renewal thereof) of this agreement, it will continue in force from year to year unless terminated by either Lessee or Lessor or[sic] written notice to the other, served not less than sixty (60) days before the beginning of such additional year.

   Lessor grants to lessee, or agents, the right to ingress or egress during the term of this contract to maintain sign structure(s).

   This agreement is subject to Lessee securing a building permit for said display. Payment is to be made upon securing building permit.

   
   

   The foregoing agreement was drafted by Respondent. Respondent prepared the agreement by adding the underscored language to a printed, form "Outdoor Advertising Structures and Display Lease" that it routinely utilizes in such transactions.

   
   

3. On or about June 20, 1988, Respondent submitted an application for an outdoor advertising sign permit for the south facing sign referenced in the above-described lease agreement. Permit AY 242-35 was subsequently granted to Respondent by Petitioner.

4. By letter dated January 9, 1989, from Respondent's attorney, Respondent informed Bethel that it sought to exercise its option "to lease both North and South facing locations," as provided in their agreement.

   
   

5. By letter dated January 24, 1989, Bethel, through her attorney, gave "notification to [Respondent] pursuant to the Lease that it will be terminated on May 31, 1989." The letter was received by Respondent on January 25, 1989.

   
   

6. On or about May 1, 1989, Bethel sent Petitioner a letter advising that Respondent would "not have a lease for the billboard [which is the subject of permit AY 242-35] after May 31, 1989." Based on the information provided by Bethel, Petitioner initiated action to revoke permit AY 242-35 on the ground that Respondent no longer had "the property owner's permission to maintain signs at the subject location."

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner is authorized to revoke outdoor advertising sign permits, such as the one held by Respondent, if the permittee fails to comply with any of the requirements of Chapter 479, Florida Statutes. Section 479.08, Fla. Stat.

   
   

8. Among the requirements of Chapter 479, Florida Statutes, is that the permittee have the "written permission of the owner or other person in lawful possession or control of the site designated as the location of the sign in the application for the permit." Section 479.07, Fla. Stat. Therefore, if such written permission" is withdrawn after a permit has been granted, the permit may be revoked by Petitioner.

   
   

9. The lease agreement that Respondent entered into with Marilyn Bethel, the owner of the property on which Respondent's permitted south facing sign is located, constituted the "written permission" that Respondent needed to obtain its permit. The agreement authorized Respondent to use the property to construct and maintain the permitted sign "for a period of Year to Year," commencing on June 1, 1988. It further granted Respondent a "first option" to lease the property for the additional purpose of constructing and maintaining a north facing sign. According to the agreement, Respondent would be able to exercise this option following the termination of the lease agreement between Bethel and National Outdoor Advertising, a competing outdoor advertising business.

   
   

10. Pursuant to its clear and unambiguous terms, however, the lease agreement between Bethel and Respondent could be terminated effective after the first year by either party giving "written notice to the other, served not less than sixty (60) days before the beginning of such an additional year." Bethel served such notice on Respondent on January 25, 1989, which is more than 60 days prior to the date on which the second year of the agreement would have begun.

By taking such action, Bethel effectively exercised her right to terminate her lease agreement with Respondent and thus withdrew the "written permission" she had previously given Respondent to maintain the permitted sign on her property. Because Respondent no longer has such "written permission," its permit should be revoked pursuant to Section 479.08, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, its hereby RECOMMENDED that Petitioner enter a final order revoking Respondent's

permit AY 242-35.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of November, 1989.

STUART M. LERNER

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 6th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3807T

The following are the Hearing Officer's specific rulings on the findings of fact proposed by Petitioner:

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. Accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Accepted and incorporated in substance.

5. Accepted and incorporated in substance.

6. Accepted and incorporated in substance.

7. Accepted and incorporated in substance.

8. Accepted and incorporated in substance.

9. Accepted and incorporated in substance.

10. Accepted and incorporated in substance.

11. Rejected. The Hearing Officer is of the view that the agreement is not vague and ambiguous regarding Bethel's right to terminate her agreement with Respondent in the manner prescribed by the agreement's termination clause. In any event, to the extent that there may an ambiguity in the agreement concerning this matter, any such ambiguity should be resolved in favor of Bethel's right to terminate the agreement inasmuch as the agreement was drafted by Respondent.

See Finlayson v. Broward County, 471 So.2d 67, 68 (Fla. 4th DCA 1985).

COPIES FURNISHED:

Rivers H. Buford, Jr., Esquire Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Garrison M. Dundas, Esquire Swann and Haddock, P.A. Southeast Bank Building

300 South Sixth Street Fort Pierce, Florida 34950

Richard J. Pozniak

Ad-Con Advertising Company Post Office Box 541

Fort Pierce, Florida 34954

Docket for Case No: 89-003807

Orders for Case No: 89-003807