STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OUTDOOR MEDIA OF PENSACOLA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-3827T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) LAMAR ADVERTISING CO., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4074T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held, pursuant to notice, in the above- styled cases on December 12, 1989, before Stephen F. Dean, the duly-designated Hearing Officer, in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner, Outdoor Arby Van Slyke, Esq. Media of Pensacola, Inc.: P.O. Box 13244

Pensacola, FL 32501

For Petitioner, Lamar Robert P. Gaines, Esq. Advertising Co.: Beggs & Lane

P.O. Box 12950 Pensacola, FL 32501

For Respondent, Department Charles G. Gardner, Esq. of Transportation: 605 Suwannee Street

Tallahassee, FL 32399-0458

STATEMENT OF THE ISSUE

The issue is which outdoor advertising signs should be permitted.

PRELIMINARY STATEMENT

This conflict arose from the competing applications of Petitioner, Lamar Advertising Co. ("Lamar"), and Petitioner, Outdoor Media of Pensacola, Inc. ("Outdoor"), for outdoor advertising sign permits from Respondent, the Department of Transportation ("DOT"). As part of the application process, DOT requires a valid building permit and the landowner's permission to erect the sign. The local authorities do not require the landowner's permission but do make the applicants comply with DOT spacing regulations. The DOT and the local authorities process and issue permits on a first-come, first-serve basis.

Lamar applied to the local authorities first and received local approval for its sign at the southeast corner of U.S. 90 and Pine Forrest Road. Lamar did not have the landowner's permission to erect the sign when it applied to the local authorities. Outdoor applied for two sign locations at the southeast corner of the intersection of U.S. 90 and Pine Forrest Road. Both of Outdoor's applications stated that the address was 4141 Pine Forrest Road. One application was approved and the other was denied by the local authorities by letters identifying the sign by its address. Outdoor's manager attached the site diagram of the sign which had not been approved to the county's letter of approval for the other sign and forwarded both to DOT. DOT approved Outdoor's application thinking it had local approval. Subsequently, Lamar was able to obtain the landowner's permission for its sign; however, it moved the site of its sign but did not get the county to re-evaluate its new site. When it applied to DOT, the application was denied because Outdoor was first.

Lamar and Outdoor both submitted proposed recommended orders which were read, considered and adopted.

FINDINGS OF FACT

1. Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that

   regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location.

   The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit.

   
   

2. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989.

   
   

3. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R.

   297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address.

   
   

4. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval.

   
   

5. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R.

297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C").

1. Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3).

   
   

2. After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297.

   
   

3. It is the policy of both the Escambia County building inspection department and the DOT to approve

   applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits.

   
   

4. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed.

   
   

5. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems.

   
   

6. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and parties of this proceeding, by the authority of subsection 120.57(1), Florida Statutes.

   
   

8. The two sign companies were both rushing to get permits and both failed to materially comply with state and local laws. Outdoor failed to submit a proper application to DOT for site "D" because Outdoor did not have county approval. Lamar filed with the county for site approval of a location 250 feet south of the intersection of S.R. 297 and U.S. 90A; however, its final application to DOT was for a site 144 feet south of S.R. 297 and U.S. 90A. Lamar did not reapply for county evaluation of this new site.

   
   

9. Section 479.07(3)(b), Florida Statutes, requires that complete information be given on the application.

   This information includes, in this case, county evaluation of the sites. Both Lamar and Outdoor failed to give accurate information regarding county approval on sites "E" and "D". A permit issued because of erroneous data provided by the applicant can be revoked.

   
   

10. Only one site was properly approved by the county and the state, Outdoor's site "C". However, Outdoor elected to proceed with its application for improperly approved site "D" instead of site "C". The DOT denied site "C" because of spacing, and Outdoor did not appeal the DOT's denial of its application for site "C".

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it.

DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida.

Officer Hearings

1550

STEPHEN F. DEAN, Hearing

Division of Administrative The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-

(904) 488-9675

Hearings 1990.

COPIES FURNISHED:

Mr. Ben C. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thomas H. Bateman, III, Esq. General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Robert P. Gaines, Esq. Beggs and Lane

P.O. Box 12950 Pensacola, FL 32576-2950

J. Arby Van Slyke, Esq.

P.O. Box 13244 Pensacola, FL 32591

Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458

Filed with the Clerk of the Division of Administrative

this 31st day of January,

Docket for Case No: 89-003827

Orders for Case No: 89-003827