W. LEE OUTDOOR ADVERTISING, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 96-0390T
)
DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for consideration upon the Department of Transportation's Motion for Summary Recommended Order.
APPEARANCES
For Petitioner: Will J. Richardson, Esquire
Richardson Law Offices, P.A. Post Office Box 12669 Tallahassee, Florida 32317-2669
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 pursuant to Section 479.07(1) F.S. and other applicable law, the Department of Transportation properly issued Notice of Violation No. 10-B-MM- 1995-0035F regarding one of Petitioner's unpermitted advertising signs.
PRELIMINARY STATEMENT
The Department of Transportation (DOT) served Petitioner A.W. Lee Outdoor Advertising, Inc., (Lee), with a notice of violation for an unpermitted sign.
The Petition for formal hearing filed on or about April 5, 1995 alleged that the advertising sign in question was built by Tri-State, Tifton, Georgia, for the State of Florida for the purpose of advertising Stephen Foster Memorial Park, which was closed in the late 1970's. The Petition further alleged that the State of Florida never issued tags for the sign; that the sign was sold to Lee with no tag permit; that no tag permit was issued at the time of sale or since; and that Lee was entitled to a valid tag permit for this billboard, without penalty, due to the negligence of the seller in not producing a valid tag permit.
The Petition was not referred to the Division of Administrative Hearings until January 29, 1996.
The case was scheduled for formal hearing, and discovery proceeded.
On May 7, 1996, DOT filed a Motion for Summary Recommended Order. No response in opposition was timely filed. In an abundance of caution, the undersigned scheduled a telephonic conference on the motion for May 23, 1996 to determine if there were any disputed issues of material fact remaining. There being no disagreement as to any of the facts alleged in the motion, legal argument was heard from both parties, and this Recommended Order follows thereon.
FINDINGS OF FACT
By operation of Rule 60Q-2.019 F.A.C. and Rule 1.370 Fla.R.Civ.P. upon DOT's unanswered Requests for Admission, by DOT's unopposed Motion for Summary Recommended Order, and by stipulation of counsel that no material facts alleged within the motion are in dispute, the following facts are admitted and may be taken as true:
The sign is located on I-75.
I-75 is an interstate highway.
No outdoor advertising permit has ever been issued by DOT for the sign.
DOT has never owned the sign.
The Sumter County Future Land Use Map designates the use of the land upon which the sign is located as agricultural.
From 1977 to date, the zoning and land use designation for the land upon which the sign is located has been agricultural.
Prior to 1977, all zoning and land use designations for the land upon which the sign is located have been agricultural.
Lee was advised by DOT in 1992 that it was required to obtain an outdoor advertising sign permit for the sign.
No written waiver of the requirement to obtain an outdoor advertising sign permit for the sign has been issued by the DOT.
No DOT employee has ever advised Lee that Lee was not required to obtain an advertising sign permit for the sign.
The prior owner of the sign never advised Lee that Lee was not required to obtain an advertising sign permit for the sign.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) F.S.
The undisputed facts establish that Lee is required to have an outdoor advertising permit for the sign at issue in this proceeding, that Lee lacks such a permit.
Lee is required to have outdoor advertising sign permits for its signs. Section 479.01(1) F.S. provides:
Except as provided in ss. 479.105(1)(e) and 479.16, 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 on any portion of the interstate or federal- aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. For purposes of
this section, "on any portion of the State Highway System, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.
Lee has not alleged that its sign meets any of the exemptions under Section 479.16 F.S. Therefore, Lee must either qualify for a nonconforming permit under Section 479.105(1)(e) F.S. or remove its sign.
Under Section 479.105(1)(e) F.S., Lee could seek issuance of a nonconforming permit if it can demonstrate that it meets the requirements of that statute. Section 479.105(1)(e) provides:
Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area
or adjacent to the right-of-way on any portion of the interstate or federal-aid primary high- way system, which sign was erected, operated, or maintained without the permit required by
s. 479.07(1) having been issued by the depart- ment, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.
* * *
However, if the sign owner demonstrates to the department that:
Such sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for a period of 7 years or more;
At any time during the period in which the sign has been posted, the sign would have met the criteria established in this chapter for issuance of a permit;
Removal of the sign would destroy the ability of the business entity being adver- tised on the sign to continue to operate;
The department has not initiated a notice of violation or taken other action to remove the sign during the period described in subparagraph 1.; and
The department determines that the sign is not located on state right-of-way and is not a safety hazard,
the sign may be considered a nonconforming sign and may be issued a permit by the depart- ment upon application in accordance with this chapter and payment of a penalty fee of $100 and all pertinent fees required by this chapter, including annual permit renewal fees payable since the date of the erection of the sign.
The undisputed facts establish that Lee's sign could not have been issued a permit at any time within the last seven years, or any time that Lee owned it. Section 479.111 F.S. and the 1972 agreement between the State of Florida and the United States Department of Transportation (see Rule 14-10.009 F.A.C.) have consistently precluded the issuance of a permit for a sign on a federal-aid primary or interstate highway in any zoned area that is not zoned industrial or commercial.
The Legislature, in amending Section 479.105(1)(e) F.S. to provide for the issuance of a permit due to a lapse in Department enforcement of Chapter 479, has established the only basis in the law for the issuance of a permit for a sign that has been subject to the permit requirements for a number of years but does not meet the requirements of Chapter 479 at the time of a belated application. Lee's sign does not meet the requirements of that statute.
