STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KOA CAMPGROUND, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4563T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6291T

)

ARTHUR S. PELOSO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on March 19, 1990 in Kissimmee, Florida. The following appearances were entered:

APPEARANCES

For KOA Campground: William H. Muntzing, Esquire

1102 Oak Street Kissimmee, Florida

For A. S. Peloso: Philip W. Watson, Esquire

Akerman, Senterfitt & Eidson

Firstate Tower, 17th Floor Orlando, Florida

For Department of Rivers Buford, Jr., Esquire Transportation: Department of Transportation

605 Suwannee Street Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit.

Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule.

Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license.

Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida.

Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit.

Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule.

Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag.

Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.

PRELIMINARY STATEMENT

On or about June 30, 1989, the Department of Transportation (DOT) issued its Notice of Violation to Petitioner, KOA Campground (KOA). On July 27, 1989, KOA filed its Petition for Administrative Proceeding, which was referred by the Department to the Division of Administrative Hearings on August 21, 1989. On August 11, 1989, KOA filed its application for a sign permit for the same structure involved in the Notice of Violation. Said application was denied on September 29, 1989. On September 1, 1989, Petitioner KOA filed a second petition seeking a determination of its right to a permit and requested that the issues raised in the original petition be consolidated with the issues raised in the new petition.

On October 20, 1989, DOT issued its Notice of Violation to Respondent, Peloso. On October 30, 1989, Respondent denied the violations through counsel and requested a formal administrative hearing. On November 16, 1989, this matter was referred to the Division with the request to consolidate these two matters. By Order dated November 27, 1989, the request for consolidation was granted, and the date of the formal hearing was continued until February 15, 1990. Upon the filing of the Joint Stipulation for Substitution of Counsel on January 24, 1990, this consolidated matter was rescheduled to be held on March 19, 1990. This hearing followed.

At the hearing, KOA presented the testimony of David L. Coats, former property administrator for Associated Mortgage Investors, Inc., the owner of Petitioner KOA Campground and Terence J. Shade, managing partner of Petitioner, and offered one exhibit in evidence. Arthur S. Peloso and Arthur A. Peloso testified for Respondent Peloso, and offered nine exhibits in evidence. DOT presented the testimony of Peter W. Wright, Administrator of Outdoor Advertising, District 5, and Michael D Dollery, outdoor advertising inspector and presented three exhibits in evidence. The transcript of the proceedings was filed with the Clerk of the Division on April 17, 1990. KOA filed its proposed findings of fact on April 27, 1990, and Peloso filed his on May 1, 1990. The DOT has not filed proposed findings as of the date of this order. The proposed findings of fact submitted by the parties have been given careful consideration

and adopted where consistent with the evidence. Each proposed finding is ruled upon in the Appendix attached to this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system.

   
   

2. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east.

   
   

3. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property.

   
   

4. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west.

   
   

5. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued.

   
   

6. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the

   100 foot strip of land owned by KOA was leased to Peloso and states:

   
   

   "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use

   or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable

   or held responsible therefor in any manner whatsoever.

7. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east."

1. The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect.

   
   

2. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT.

   
   

3. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989.

   
   

4. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10).

   
   

5. KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign.

   
   

6. Peloso has ceased construction on his new sign structure.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Department of Transportation is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the Interstate and Federal Aid Primary Systems, and along the State Highway System outside the corporate limits of cities and towns. The Florida Highway Beautification Program is controlled by Chapter 14-10, Florida Administrative Code.

   
   

9. Respondent Peloso applied for and obtained two valid sign permits from the DOT in 1982, one for an east-facing sign and one for the west on his property abutting U.S. 192. These permits were obtained in compliance with the provisions of Section 479.07, Florida Statutes, and Chapter 14-10, Florida Administrative Code, then in force. Peloso also obtained a permit for his sign from Osceola County. He then constructed a single sided sign facing west on the site.

   
   

10. Also in 1982, KOA and Peloso entered into a Lease to accommodate the erection of signs on the parties' property. Under the terms of paragraph 6 of the Lease, Peloso had the duty to procure all necessary permits and to so construct his sign structure so as to minimize its intrusion onto KOA's property. Paragraph 7 of the Lease clearly indicates an intention by KOA to

    erect a sign, at its own expense, on its property, facing east, but does not indicate whether the sign was to be used for on-site or off-site advertising purposes. No provisions under the Lease requires Peloso to provide space for an off-premises sign, to erect a sign or maintain permits for KOA.

    
    

11. Petitioner KOA did not apply for or obtain a DOT sign permit in 1982 or subsequently. It did obtain a local permit for an on-site sign and in early 1982 did construct an east-facing sign. This sign did not require a DOT sign permit since the message on the sign facing advertised the KOA Campground located on the same property. There was insufficient evidence to indicate that DOT sign permit No. AG637-10 was ever attached to this sign or any sign. Therefore, when KOA changed the message on its sign to advertise an off-premise business, which was observed by DOT in 1989, the sign lost its status as an exempt sign under Section 479.16(1), Florida Statutes. The DOT was correct in citing Petitioner KOA with violations of:

    
    

    1. Section 479.07(1), Florida Statutes, for operating, using or maintaining a sign on the State Highway System without obtaining a permit.

       
       

    2. Section 479.07(9)(a)2, Florida Statutes, for locating a sign within one thousand feet from a permitted sign on the same side of a federal-aid primary highway.

       
       

    3. Section 479.04(1), Florida Statutes, for engaging in the business of outdoor advertising outside an incorporated area without first obtaining a state license.

    
    

    However, each of these violations have been corrected by the removal of the advertising message from the sign face of the KOA sign which faces east. Section 479.08, Florida Statutes. This sign can remain so long as the sign qualifies as an on-premises sign, Section 479.16(1), Florida Statutes, but KOA is not entitled to the granting of a sign permit for the application filed in 1989 since it is within one thousand feet of a permitted sign; and its application conflicts with the application of Peloso, marked as an amended application, dated October 14, 1988. Section 479.07(9)(a), Florida Statutes; Rule 14- 10.004(4), Florida Administrative Code. See generally: Florida Department of Transportation vs. E.T. Legg & Co., 472 So.2d 1336 (Fla. 4th DCA 1985).

    
    

12. The violations cited against Peloso have been corrected by remedial action by complying with the DOT stop work order and by properly posting sign permit numbers AG636-10 and AX346-35 for his west-facing sign on U.S.192. Section 479.08, Florida Statutes. Peloso is not in violation of the spacing rule, Section 479.07(9)(a), Florida Statutes, since he holds a valid current sign permit. In addition, Peloso is entitled to hold two valid state permits. One for a sign facing in the west bound direction (AG636-10 and AX346-35). He is also entitled to a replacement for the lost tag (AG637-10) for a sign facing in the east bound direction, upon his compliance with Rule 14-10.004(11), Florida Administrative Code, since the original permit was issued prior to 1984 and Peloso has properly renewed that tag annually since it was issued. Section 479.07(5), Florida Statutes. Upon demonstrating to DOT that the new sign structure to be erected will comply with all applicable rules and regulations, Peloso is entitled to continue to maintain permits for both an east and a west- facing sign. Section 479.07, Florida Statutes and Rule 14-10.004, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes.

   
   

2. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules.

DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Buildi.ng

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Proposed Findings of Fact submitted by Petitoner, KDA Campground.

Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence.

Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted.

Paragraph 3- Accepted in substance. Paragraph 4- Rejected.

Paragraph 5- Accepted in substance.

Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance.

The Department of Transportation did not file proposed findings of fact.

COPIES FURNISHED:

William H. Muntzing, Esquire 1102 Oak Street

Post Office Box 421966 Kissimmee, Florida 34742

Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231

Orlando, Florida 32302

Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, FL 32399-0450

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0450

Docket for Case No: 89-004563

Orders for Case No: 89-004563