STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 90-5143T

) 90-5144T

WAKOA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on January 28, 1991, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONER: Vernon L. Whittier, Jr., Esq.

Department of Transportation 605 Suwannee Steet, M.S. 58

Tallahassee, FL 32399-0458

FOR RESPONDENT: John S. Mooshie

Wakoa, Inc.

P.O. Box 12335 Tallahassee, FL 32317

STATEMENT OF THE ISSUES

Whether the outdoor advertising signs in question are in violation of the applicable statutes and regulations and whether their permits should be revoked.

PRELIMINARY STATEMENT

This case is based upon a violation and show cause notice to the Respondent dated July 2, 1990 by the Petitioner seeking to revoke two outdoor advertising permits issued to the Respondent because the Respondent's applications for the permits incorrectly stated that the signs were located in the ccunty's jurisdiction when the sites were located in the city.

It was determined that Mr. John S. Mooshie was the sole owner of Wakoa, Inc. and was a qualified representative.

The Petitioner submitted proposed findings of fact, which were read and considered. The findings submitted by the Petitioner were adopted, although they were rewritten.

FINDINGS OF FACT

1. The Respondent applied to the Petitioner for outdoor advertising permits at a location on the west side of State Road 263, 674 feet north of U.S. Highway 90, with signs facing north and south.

   
   

2. Prior to making application with the Petitioner, Mr. Mooshie contacted the Tallahassee Leon County Department and was advised that the site was located within county jurisdiction. Mr. Mooshie applied for and received a permit from Leon County whereby the county asserted jurisdiction over the area in question.

   
   

3. The site in question is within the city limits of Tallahassee and was in the city limits of Tallahassee at the time Mr. Mooshie applied for the permit.

   
   

4. The permit applications submitted by the Respondent indicated that the sign site was not inside the city limits.

   
   

5. State Permit Tag Numbers BB 729-35 and BB 730-35 were issued on July 22, 1990 for the site in question.

   
   

6. The Respondent applied to the City of Tallahassee for a city permit for the subject site on July 11, 1990 and was advised that a permit could not be issued because a city permit had been issued to Lamar Advertising for a location 600 feet north on the same street on June 21, 1990.

   
   

7. The Petitioner issued an outdoor advertising permit to Lamar Advertising for the site for which the city had issued a building permit prior to the final hearing in this case.

   
   

8. The City of Tallahassee sign ordinance requires 2,000 feet spacing between billboards on the same side of the street.

   
   

9. No sign structure has been erected at the site in question.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57, Florida Statutes. The Department of Transportation has the authority to regulate outdoor advertising signs pursuant to Chapter 479, Florida Statutes.

    
    

11. Section 479.07(3)(b), Florida Statutes, provides in part:

    
    

    (b) . . . where local government regulation of signs exits, a statement from the appropriate local governmental official indicating that the sign complies with all local governmental requirements and that the agency or unit of local government will issue a permit to the applicant upon approval of the state permit application by the department.

12. When Mr. Mooshie made application for Wokoa's permits for the sign site in question, he assumed from information provided by Leon County that the site was located in the county. Wakoa's applications reflected that the signs would be located in an area of county jurisdiction. Wakoa's permit applications to DOT were accompanied by county permit approvals. The DOT accepted the documentation from the county that the site was in the county's jurisdiction and issued the permits to Wakoa.

    
    

13. Where a sign permit is issued as a result of a mutual mistake of fact, equitable estoppel does not apply and the Department may revoke the permits and order the removal of the signs. Nelson Richard Advertising v. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987). The permits in question should be revoked for being in violation of Section 479.07(3)(b), Florida Statutes. Because no signs have been erected, removal is not necessary.

    
    

14. Wakoa has not filed a corrected application; however, the City of Tallahassee, which has local jurisdiction over the sign site, has denied a permit to Wakoa because another sign company obtained authorization from the city for a conflicting site after Wakoa filed its original application. This Order does not address the potentially-conflicting Lamar Advertising permits because an amended Wakoa application has not been filed; however, this case and a similar one in Pensacola point out the potential advantage of having both city and county review and approval of sign application prior to submission of permit applications to DOT.

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 State Permit Tag Numbers BB 729-35 and BB 730-35 be revoked.

DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991.

COPIES FURNISHED:

Vernon L. Whittier, Esq. Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

John S. Mooshie Wakoa, Inc.

Post Office Box 12335 Tallahassee, Florida 32317

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, M.S. 58

Thornton J. Williams, Esq. General Counsel

605 Suwannee Street

562 Haydon Burns Building Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005143

Orders for Case No: 90-005143