STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACKERLEY COMMUNICATIONS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-3303T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 26, 1993, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald L. Knight, Esquire

GUSTAFSON, STEPHENS, FERRIS, FORMAN & KNIGHT, P.A.

540 Northeast Fourth Street Fort Lauderdale, Florida 33301

For Respondent: Paul Sexton, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether Petitioner's application for an outdoor advertising sign permit should be granted by the Department of Transportation (hereinafter referred to as the "Department")?

PRELIMINARY STATEMENT

By letter dated April 14, 1993, Petitioner requested a formal administrative hearing on the propriety of the Department's determination to return Petitioner's application to obtain a state permit for an outdoor advertising sign located in the Town of Hypoluxo because the application was accompanied by neither a "local [sign] permit" issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official "that the sign complies with all local governmental requirements," as required by Section 479.07(3)(b), Florida Statutes. On May 19, 1993, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Petitioner had requested.

At the formal hearing, which was held on October 26, 1993, a total of five witnesses testified: Judith Williamson, an outdoor advertising inspector with the Department; The Honorable Al Merion, the Mayor of the Town of Hypoluxo; Barbara Lee Searls, Hypoluxo's Town Clerk; Wendy Thomas, a planner employed by the law firm of Gustafson, Stephens, Ferris, Forman, & Knight, P.A.; and Don Hall, Petitioner's operations manager. In addition to the testimony of these five witnesses, a total of 18 exhibits (Petitioner's Exhibits 1 through 6 and Respondent's Exhibits 1 through 12) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on October 26, 1993, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on November 12, 1993. On December 10, 1993, and December 13, 1993, respectively, Petitioner and the Department filed proposed recommended orders containing proposed findings of fact and conclusions of law. These proposed findings of fact and conclusions of law have been carefully considered by the Hearing Officer. The proposed findings of fact are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County.

   
   

2. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media.

   
   

3. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County.

   
   

4. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign.

   
   

5. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media.

   
   

6. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County.

   
   

7. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since.

   
   

8. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town.

   
   

9. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs."

10. It also contains a section dealing with "nonconforming signs," which provides as follows:

    
    

    1. Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations:

       1. A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign.

       2. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced.

    2. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs.

    3. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming.

       
       

11. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance.

    
    

12. The Town also has a building code.

    
    

13. Under the code, a building permit is required before a sign within the Town may be altered or repaired.

    
    

14. No building permit has ever been issued by the Town for any work to be performed on the Sign.

    
    

15. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes.

    
    

16. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit.

    
    

17. Petitioner filed its application on January 12, 1993.

    
    

18. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above.

19. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance.

    
    

20. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application.

    
    

21. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote:

    
    

    Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963.

    
    

    The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo.

    
    

    To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town.

    
    

22. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo."

    
    

23. Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/

    
    

    CONCLUSIONS OF LAW

    
    

24. With certain exceptions not applicable to the instant case, "a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or an any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the [D]epartment." Section 479.07(1), Fla. Stat.

25. Section 479.07(3)(b), Florida Statutes, provides, among other things, that "where local governmental regulation of signs exist," an application for such a permit from the Department "must be accompanied by . . . 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 that applicant upon approval of the state permit application by the [D]epartment." See also Rule 14-10.004(2)(i), Fla. Admin. Code ("[t]he application . . . shall contain: Where there are local government sign requirements, a statement from the appropriate governmental official indicating that the sign complies with all local government requirements and can be issued a local permit").

    
    

26. If the sign for which the permit is sought "is prohibited by any other public board, officer, or agency in the lawful exercise of its powers," the Department may not grant the requested permit. Section 479.15, Fla. Stat.; see also Section 479.155("[t]he provisions of this chapter shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances").

    
    

27. Where the Department intends to deny an application for a sign permit, it must provide the applicant with a written notice containing:

    
    

    1. The particular facts or basis for the Department's action and the statute or rule relied upon.

    2. A statement that the applicant or licensee has the right to an administrative hearing pursuant to Section 120.57, F.S.

    3. A statement that the Department's action shall become conclusive and final agency action if no request for hearing is filed within 30 days of receipt of the notice of

    the Department's intended action.

    
    

    Rule 14-10.003(1)(f)1., Fla. Admin. Code.

    
    

28. An applicant who contests the proposed denial of its application has the burden of proving its entitlement to the requested permit. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 786-87 (Fla. 1st DCA 1981). It need address, however, only those entitlement issues raised in the Department's written notice of intended denial. See Woodholly Associates

    v. Department of Natural Resources, 451 So.2d 1002 (Fla. 1st DCA 1984).

    
    

29. In the instant case, Petitioner has not met its burden of proving that it is entitled to the permit it seeks from the Department.

    
    

30. The evidence reveals that, although "local governmental regulation of signs exists" in the Town of Hypoluxo, where the Sign is located, Petitioner's application to the Department was accompanied by neither a permit for the Sign issued by the Town, nor a statement from any Town official regarding the legality of the Sign under the Town's current sign ordinance. Moreover, it appears from the testimony given by Mayor Merion that the Town takes the position that the Sign is illegal and subject to removal under the ordinance.

31. Under such circumstances, given the plain and unambiguous language of Section 479.07(3)(b), Florida Statutes, requiring permit applicants in cases such as the instant one, where "local governmental regulation of signs exists," to provide the Department with proof that the local government in question has determined that the sign for which the permit is sought "complies with all local government requirements," the Department has no alternative but to deny Petitioner's application, regardless of how persuasive it may find Petitioner's argument that the position taken by the Town is untenable.

    
    

32. The Department may not substitute its judgment for that of the local government on the question of whether the subject sign "complies with all local governmental requirements." Had the Legislature intended otherwise, it would not have required, as it did in Section 479.07(3)(b), Florida Statutes, that an applicant submit "a statement from the appropriate local governmental official indicating that the sign complies with all local governmental requirements," but instead would have simply required the submission of any documentation, whether or not in the form of "a statement from the appropriate local governmental official," establishing compliance with "local government requirements."

    
    

33. If the local government refuses to provide the statement of compliance that the applicant needs to obtain a permit from the Department, the applicant may seek a judicial remedy.

    
    

34. An administrative remedy, however, is unavailable. No matter how unreasonable the local government's recalcitrance may seem, the Department is powerless to rectify the situation. In the absence of a showing that the local government, either voluntarily or at the direction of a court of competent jurisdiction, has approved the subject sign as being in full compliance with "local government requirements," the Department lacks the authority to issue a state outdoor advertising sign permit for the sign, even if the applicant has proffered compelling evidence that the local government has acted unreasonably in withholding its approval of the sign. See City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So.2d 493, 495-96 (Fla. 1973)("[a]ll administrative bodies created by the Legislature are . . . "mere creatures of statute;" "[a]s such, [their] powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State"); Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So.2d 1375, 1379 (Fla. 1st DCA 1991)("a]n administrative agency has only the authority that the legislature has conferred by statute"); Lewis Oil Company, Inc., v. Alachua County, 496 So.2d 184, 189 (Fla. 1st DCA 1986)("[a]dministrative agencies have only the power delegated by statute").

    
    

35. Such a showing of local governmental approval has not been made in the instant case.

    
    

36. Accordingly, the Department must deny Petitioner's permit application.

2/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

hereby

RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994.

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 4th day of January, 1994.

ENDNOTES

1/ The Town, however, has not taken any action to effectuate the removal of the Sign.

2/ If the Department desires to have the Sign removed, it must act in accordance with the provisions of Section 479.105, Florida Statutes.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-3303T

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:

Petitioner's Proposed Findings

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

2. Rejected as a finding of fact because it is more in the nature of a statement of the law.

3-5. Accepted and incorporated in substance.

6. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected as a finding of fact because it is more in the nature of legal argument.

7-11. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Third sentence: Rejected as a finding of fact because it is more in the nature of a recitation of testimony than a finding of fact based upon such testimony.

2. First and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

3. First and fourth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second, third and fifth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. First, second and fourth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second sentence:; Third sentence: Accepted and incorporated in substance.

6. First sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case; Second, third, fifth and sixth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Fourth sentence: Rejected as a finding of fact because it is more in the nature of commentary regarding the contents of the evidentiary record.

The Department's Proposed Findings

1. Accepted and incorporated in substance.

2. First, second, third and fifth sentences: Accepted and incorporated in substance; Fourth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. Rejected as a finding of fact because it is more in the nature of a statement of the respective legal positions of the parties.

4. Accepted and incorporated in substance.

5. First, second and third sentences: Accepted and incorporated in substance; Fourth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6. First, second, third, fourth, fifth and seventh sentences: Accepted and incorporated in substance; Sixth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

7-8. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of commentary regarding the contents of the evidentiary record.

2. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance.

COPIES FURNISHED:

Gerald L. Knight, Esquire GUSTAFSON, STEPHENS, FERRIS, FORMAN

& KNIGHT, P.A.

540 Northeast Fourth Street Fort Lauderdale, Florida 33301

Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S. 58

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation c/o Eleanor F. Turner

Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

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 of time 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: 93-003303

Orders for Case No: 93-003303