STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSAL OUTDOOR, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-3767T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, by televideo conference to Orlando, Florida, on December 12, 1997.

The following appearances were entered:

APPEARANCES

For Petitioner: Bryan Parker, Qualified Representative

Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811

For Respondent: Kelly A. Bennett, Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 PRELIMINARY STATEMENT

On or about June 26, 1997, the Respondent issued Notice of Violation No. 10B-DM-1997-125-NF concerning an unpermitted outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91. On July 21, 1997, Universal Outdoor, Inc. (Petitioner), petitioned the Respondent for an administrative hearing. Petitioner pleads that the subject sign had been

permitted, but that the permit had since lapsed. Petitioner requested a formal hearing on the matter and seeks reinstatement of the permit. On August 12, 1997, the Respondent referred the matter to Division of Administrative Hearings for appointment of an Administrative Law Judge to conduct a formal hearing.

On December 12, 1997, a final hearing was convened by video conferencing with the Petitioner and its witnesses in Orlando.

Counsel for Respondent and the Administrative Law Judge participated from Tallahassee. Petitioner entered three exhibits into evidence: a lease agreement dated May 19, 1997; the Notice of Violation, dated June 26, 1997; and Respondent's First Set of Interrogatories to Petitioner. The lease was conditionally admitted in evidence (Tr 19-24). Respondent's objection is overruled. Petitioner called as witnesses Charles Tucker and Michael Dollery.

The Respondent entered into evidence Notice of Violation No. 10B-DM-1997-125-NF, for an illegally erected sign, and called as witnesses Pete Wright, Mark Gamble, and John Garner. A transcript of the hearing was prepared and filed on December 29, 1997. Petitioner filed its Proposed Findings of Fact on

January 9, 1998. Respondent filed its Proposed Recommended Order on January 8, 1998. Both proposals have been given careful Whether the Petitioner's outdoor advertising sign located at consideration and adopted when supported by a preponderance of evidence.

STATEMENT OF THE ISSUES

Whether the Petitioner's outdoor advertising sign located at

1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF.

Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.

FINDINGS OF FACT

1. On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida.

2. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits.

3. On June 26, 1997, the above-referenced sign did not have a current valid permit.

4. On June 26, 1997, the above-referenced sign was not an on-premises sign.

5. Charles Tucker is the owner of the subject sign and the property on which it is located.

6. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign.

7. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes.

8. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon.

9. Charles Tucker has owned the subject sign since 1974.

10. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company.

11. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter.

12. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage.

13. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes.

14. There has been a seven-year period of time during which the subject sign displayed advertising copy.

15. No structural changes have been undertaken on the subject sign since it was constructed.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

17. Section 479.02(1), Florida Statutes, authorizes the Respondent to administer and enforce the provisions of Chapter 479, Florida Statutes, and the agreement between the

    state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and federal regulations in effect as of the

    effective date of this act.

    
    

18. Section 479.02(7), Florida Statutes, authorizes the Respondent to adopt such rules as it deems necessary or proper for the administration of Chapter 479, Florida Statutes, including rules which identify activities that may not be recognized as industrial or commercial activities for purposes of determination of an area as an un-zoned commercial or industrial area.

19. The Respondent has the authority to issue Notices of Violations for unpermitted outdoor advertising signs located within its jurisdiction.

20. The subject sign located within 660 feet of the right- of-way of State Road 91, outside any city limits, and 1.106 miles south of State Road 50, on State Road 91, in Orange County falls within the Respondent's jurisdiction.

21. Section 479.07(1), Florida Statutes, states: Except as provided in Sections 479.105(1)(e) and 479.16, Florida Statutes, 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.

22. Section 479.07(8)(b), Florida Statutes, provides:

If a permittee has not submitted his or her fee payment by the expiration date of the licenses or permits, the department shall send a notice of violation to the permittee within 45 days after the expiration date, requiring the payment of the permit fee within 30 days

after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his or her sign should not be subject to immediate removal due to expiration of his or her license or permit. If the permittee submits payment as required by the violation notice, his or her license or permit will be automatically reinstated and such reinstatement will be retroactive to the original expiration date. If the permittee does not respond to the notice of violation within the 30-day period, the department shall, within 30 days, issue a final notice of sign removal, remove the sign without incurring any liability as a result of such removal. However, if within 90 days after the date of the department's final notice of sign removal, the permittee demonstrates that a good faith error on the part of the permittee resulted in cancellation or non renewal of the permit, the department may reinstate the permit if:

1. The sign has not yet been disassembled by the permittee;

   
   

2. Conflicting applications have not been filed by other persons;

   
   

3. The permit reinstatement fee of $300.00 is paid;

   
   

4. All other permit renewal and delinquent permit fees due as of the reinstatement date are paid; and

   
   

5. The permittee reimburses the department for all actual costs resulting from the permit cancellation or nonrenewal and sign removal.

1. Neither Mr. Charles Tucker nor Petitioner is eligible for reinstatement of the permit under the provisions of Section 479.07(8)(b), Florida Statutes, because neither has ever held a valid State Outdoor Advertising Permit for the subject sign.

2. Unless pursuant to Section 479.07(1), Florida Statutes, the sign falls within the provisions of Sections 479.105(1)(e) or 479.16, Florida Statutes, the Notice of Violation is appropriate. The sign owner testified that the sign was not used to advertise his business. Rather, the sign was leased to others for

   advertising purposes. Therefore, the subject sign is not exempt from permit requirements, pursuant to Section 479.16, Florida Statutes.

3. Unless the Respondent finds that it is exempt under Section 479.16, Florida Statutes, an outdoor advertising sign located within 660 feet of the right-of-way of State Road 91, outside any city limits, 1.106 miles south of State Road 50, on State Road 91, in Orange County, is required to maintain a State Outdoor Advertising Permit.

4. The subject sign, the outdoor advertising sign located

   
   

   1.106 miles south of State Road 50, on State Road 91, in Orange County, is not exempt under Section 479.16, Florida Statutes, and is required to maintain a State Outdoor Advertising Permit.

5. Section 479.105(1)(e), Florida Statutes, provides that, if the sign owner demonstrates to the department that:

1. The sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for a period of seven years or more;

   
   

2. At any time during the period in which the sign has been erected, the sign would have met the criteria established in this chapter for issuance of a permit;

   
   

3. The department has not initiated a notice of violation or taken other action to remove the sign during the initial seven-year period described in subparagraph 1; and

   
   

4. 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 conforming or nonconforming sign and may be issued a permit by the department upon application in accordance with this chapter and payment of a penalty fee of

$300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable since the date of the erection of the sign.

1. Whether the sign is eligible for a permit under Section 479.105(1)(e), Florida Statutes, is ripe for review.

2. Petitioner, the agent for the owner, has met the burden of proof on each of the required criteria and the sign is eligible for a permit under that section:

   1. The sign owner has demonstrated that the sign was continuously maintained and structurally unchanged for a period of seven years or more.

      
      

   2. The sign owner has demonstrated that the subject sign would be eligible for a permit at some time during the period in which the sign has been erected.

      
      

   3. The sign owner has demonstrated that the subject sign was in violation of Chapter 79, Florida Statutes, for a period during the initial seven years.

      
      

   4. The sign owner has demonstrated that the sign is not located on the state right-of-way and that it is not a safety hazard.

   
   

3. The evidence demonstrates that the Respondent properly issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued.

DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.

COPIES FURNISHED:

Kelly A. Bennett Assistant General Counsel

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

Mark Gamble

Real Estate Representative Universal Outdoor, Inc.

5333 Old Winter Garden Road Orlando, Florida 32811

Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-003767

Orders for Case No: 97-003767