STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE N0. 90-6299T

)

POA ACQUISITION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 7, 1991, in Orlando, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr.

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. #58

Tallahassee, FL 32399-0458

For Respondent: Jay Trent

Real Estate Manager POA Acquisition, Inc.

P.0. Box 617617 Orlando, FL 32861

STATEMENT OF THE ISSUES

This proceeding involves permits for outdoor advertising issued by the Florida Department of Transportation. The issue for determination is whether those permits should be revoked for failure to have the property owner's permission to maintain a sign at the subject location.

PRELIMINARY STATEMENT

In a letter dated August 9, 1990, Peter W. Wright, Administrator, Outdoor Advertising, Florida Department of Transportation, informed POA Acquisition, Inc., (POA) the permit- holder, of the agency's intent to revoke permits #AQ195- 35/AQ196- 35.

Jay Trent, POA's Real Estate Manager, responded with a timely request for formal hearing.

At the hearing, the Department of Transportation (DOT) presented the testimony of Peter Wright and of Patricia Ann Lavelle, and introduced four documents, received into evidence as Petitioner's exhibits #1-4, without objection.

Jay Trent testified on behalf of Respondent, POA. In addition, Mr. Trent provided a late-filed exhibit, without objection, received in evidence as Respondent's exhibit #1.

After the hearing, the transcript was filed, and DOT submitted a proposed recommended order. Its proposed findings of fact are substantially adopted herein.

FINDINGS OF FACT

1. Respondent, POA Acquisition, Inc. (POA), is an outdoor advertising company maintaining an office in Orlando, Florida.

   
   

2. On or about June 7, 1985, sign permits #AQ 195-35 and AQ 196-35 were issued by the Florida Department of Transportation (DOT) to Iverson, Inc., for the two faces of a sign located near the highway intersection of State Road 438 and U.S. 441 in Orlando, Orange County, Florida.

   
   

3. The site for the sign was leased from the owners by Iverson, for 5 years effective August 1, 1985, at an annual rate of $1,800.00. The lease provided for automatic renewals of successive 5-year terms unless written notice to terminate was given by either party ninety (90) days prior to the end of the term. The lease also provided for termination by the lessor with ninety (90) days notice if the lessor required use of the property for another purpose. (Petitioners Exhibit #4)

   
   

4. At some point, Iverson assigned its lease and transferred the permits to another company, Don Bell Industries, Inc. (Don Bell) The lessors sold the property to Bernard Kaplan. Patricia Lavelle became the agent for the owner, Bernard Kaplan.

   
   

5. The new owner had development plans for the property and began negotiating a new lease with Don Bell in July 1989. Offers and counter-offers were made, but no new lease was signed. On July 2, 1990, Patricia Lavelle sent a letter to Don Bell stating that the lease had expired as of June 30, 1990, and the billboards needed to be removed.

   
   

6. Unknown to Patricia Lavelle, Don Bell had transferred its lease to POA in November 1989. Ms. Lavelle found out about the transfer the day she wrote to Don Bell, and she sent POA a copy of the letter.

   
   

   Ms. Lavelle also sent a notice to Peter Wright, DOT, informing him that the lease with Don Bell was terminated and asking that the permits be revoked and reissued to the new leasee, National Advertising Company.

   
   

7. POA sent Ms. Lavelle a check for $1,440 (deducting 20% for federal tax), dated July 11, 1990. She held the check and never deposited it.

   
   

8. Ms. Lavelle contends that no lease exists between the owner and POA, and POA does not have the owner's permission to maintain its billboard on the premises. She contends that the lease expired in June 1990, when the Don Bell lease expired.

   The assignment of lease from Bell to POA, which was never sent to Ms.

   Lavelle or Bernard Kaplan, indicates that the lease term is 6/26/85 to 6/26/90.

   
   

9. POA contends that a five year renewal period commenced in July 1990, as the lessor did not give 90 days advance notice, as provided in the lease document. However, no evidence was presented to refute Ms. Lavelle's statement that the notice was given to Don Bell when a letter dated July 7, 1989, was sent from P.A. Lavelle to Russ Adams, Manager of Don Bell & Company, stating that the land was "under a development project", and someone from the company needed to negotiate a new lease. (Petitioner's Exhibit #1) In the absence of evidence to the contrary, Ms. Lavelle's testimony and the July 7th letter establish that POA does not have the owner's permission to maintain a sign at the subject site.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1), F.S.

    
    

11. The DOT has authority to regulate outdoor advertising signs pursuant to Chapter 479, F.S.

    
    

    Section 479.07, F.S. provides, in pertinent part:

    
    

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

    
    

    Section 479.08, F.S. provides:

    
    

    479.08 Denial or revocation of permit.--The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines that the application for the permit contains knowingly false

    or misleading information or that *the permittee has violated any of the provisions of this chapter,* unless such permittee, within 30 days after the receipt of notice by the department, corrects such false or misleading information and complies with the provisions of this chapter.

    Any person aggrieved by any action df the department in denying or revoking a permit under this chapter may, within 30 days after receipt of the notice, apply to the department for an administrative hearing pursuant to chapter 120.

    (emphasis added between *)

12. In the absence of competent evidence that there is still a lease in effect or other evidence of the owner's permission, P0A is in violation of Section 479.07(7), F.S. and its permits are no longer valid.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the DOT issue a Final Order revoking permit numbers AQ 195-35/AQ 196-

35.

DONE AND RECOMMENDED this 9th day of A1pril, 1991, in Tallahassee, Leon

County, Florida.

COPIES FURNISHED:

Vernon L. Whittier, Jr. Asst. General Counsel Dept. of Transportation

605 Suwannee Street, M.S. #58

Tallahassee, FL 32399-0458

Jay Trent, Real Estate Manager POA Acquisition, Inc.

P.O. Box 617617 Orlando, FL 32861

Ben G. Watts, Secretary Dept. of Transportation Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

Dept. of Transportation

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458

MARY CLARK

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 9th day of April, 1991.

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: 90-006299

Orders for Case No: 90-006299