STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) Case Nos. 99-3940T

) 99-3941T

DEPARTMENT OF TRANSPORTATION, ) 99-3942T

) 00-0720T

Respondent. ) 00-0721T

) 00-0723T

RECOMMENDED ORDER

On February 17, 2000, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.

PRELIMINARY STATEMENT

On December 29, 1997, Petitioner (National) filed six applications for outdoor advertising sign permits describing the location of the signs as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." Respondent Department of Transportation (DOT) gave notice of intent to deny the applications on January 13, 1998. However, the matters were not referred to the Division of Administrative Hearings until September 20, 1999. The applications on the former "AF" permits were given DOAH Case No. 99-3940T, the former "AM" permits were given DOAH Case No. 99-3941T, and the former "AI" permits were given DOAH Case No. 99-3942T. These three DOAH cases were consolidated and scheduled for final hearing on December 1, 1999.

On November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure), and DOT filed a Motion in Limine seeking to prohibit National from trying the issue of reinstatement of the former permits. The next day, National filed a Motion for Continuance to give DOT time to decide whether to reinstate the former permits. An Order Granting Continuance

and Re-Scheduling Hearing for February 17, 2000, was entered on December 2, 1999.

On February 3, 2000, National filed another Motion for Continuance because DOT still had not decided whether to grant the petitions for reinstatement and because DOT now allegedly was required by law to issue default permits that would moot the DOAH Case Nos. 99-3940T, 99-3941T, and 99-3942T. National supplemented the Motion for Continuance on February 8, 2000, with copies of the Notice of Intent to Deny Petition for Reinstatement DOT issued on January 31, 2000, as to each Petition for Reinstatement, and the Petition of National Advertising Company filed on February 8, 2000, seeking a formal administrative proceeding on the intended denials of the petitions for reinstatement. DOT filed a Response in Opposition to National's Motion for Continuance on February 10, 2000.

A telephone hearing was held on the Motion for Continuance on February 14, 2000. During the hearing, the parties agreed to a single final hearing on all issues on February 17, 2000; and DOT agreed to expedite referral of the three petitions for reinstatement to DOAH, where they would be immediately consolidated with DOAH Case Nos. 99-3940T, 99-3941T, and

99-3942T. The Motion for Continuance was denied.

DOT referred the Petition of National Advertising Company seeking a formal administrative proceeding on the intended denials of the petitions for reinstatement later on February 14,

2000. DOAH assigned three case numbers to the Petition of National Advertising--00-0720T, 00-0721T, and 00-0723T, corresponding to the signs structures at issue in DOAH Case Nos. 99-3940T, 99-3941T, and 99-3942T--and assigned the same Administrative Law Judge for consolidation at final hearing on February 17, 2000.

On February 15, 2000, DOT filed a second Motion in Limine seeking: (1) exclusion of "any reference" to a requirement for "just compensation" for a "taking"; and (2) prohibition against questions concerning agency policy unless directed to DOT's designated agency representative.

At final hearing, all six DOAH cases were consolidated. As a result, DOT's first Motion in Limine became moot. DOT's second Motion in Limine was denied (although it was acknowledged that no "taking" or "just compensation" would be decided in these cases.) DOT's ore tenus motion to limit National to one witness due to late-filed interrogatory answers also was denied.

National called two witnesses and had Petitioner's Exhibits

1 through 13 admitted in evidence. DOT called four witnesses and had Respondent's Exhibits 1 through 3 admitted in evidence.

DOT requested a transcript of the final hearing, and National's request for twenty ten days from the filing of the transcript in which to file proposed recommended orders was granted. The Transcript was filed on February 28, 2000, making proposed recommended orders due on February 20, 2000. Both

parties filed Proposed Recommended Orders, which have been considered.

FINDINGS OF FACT

1. In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981.

2. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982.

3. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984.

4. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the

   "subject sign structures"), in the same condition as they were when erected.

5. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995.

6. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action.

7. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing.

8. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction.

9. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees

   which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995.

10. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures.

11. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997.

12. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures.

13. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms

    asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures.

14. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code.

15. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and

    "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code.

16. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999).

17. On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.

    CONCLUSIONS OF LAW

    
    

18. National contends that its petitions for reinstatement must be granted under Sections 120.60(1) and 479.07(4), Florida Statutes (1999). (All statutory citations are to the 1999 codification of the Florida Statutes unless otherwise specified.) Section 120.60(1), which governs the processing of an application for a license, provides in pertinent part:

    Every application for a license shall be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss. 120.569 and 120.57. An application for a license must be approved or denied within the 90-day or shorter time period, within 15 days after the conclusion of a public hearing held on the application, or within 45 days after a recommended order

    is submitted to the agency and the parties, whichever is later. The agency must approve any application for a license or for an examination required for licensure if the agency has not approved or denied the application within the time periods prescribed by this subsection.

    
    

    Section 479.07(4) specifies a shorter, 30-day period for DOT to act on a sign permit. National contends that, because DOT did not act on the petitions for reinstatement within 30 days, they must be granted.

19. A sign permit clearly is a license under Section 120.52(9), and an application for a sign permit is governed by the requirements of Section 120.60(1). But a petition for reinstatement of a license is not an application for a license. For that reason, Section 120.60(1) does not apply.

20. National next contends that reinstatement is required under Section 479.07(8)(b), which 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 and may, following 90 days after the date of the department's final notice of sign removal, remove the sign without incurring any liability as a result of such removal.

    However, if at any time before removal of the sign, the permittee demonstrates that a good faith error on the part of the permittee resulted in cancellation or nonrenewal of the permit, the department may reinstate the permit if:

    1. The permit reinstatement fee of up to

       $300 based on the size of the sign is paid;

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

    3. The permittee reimburses the department for all actual costs resulting from the permit cancellation or nonrenewal.

       In this case, National did not demonstrate that any "good faith error" on its part resulted in cancellation or nonrenewal of the subject permits. (National also cited and argued the version of the statute in the 1997 codification of the Florida Statutes; but differences between the 1997 and 1999 versions are not significant for purposes of this case.)

21. The evidence in this case was that DOT canceled the subject permits in March 1995 because DOT no longer had jurisdiction. Even if DOT's action induced National not to oppose the cancellations, there was no proof that DOT's action in canceling the permits was in error.

22. It also cannot be said that National's failure to renew the permits at the end of 1995 was "good faith error." Once the permit cancellations became final--as they did by expiration of

    the time to request administrative proceedings under Section 120.57, Florida Statutes (1995)--there was no longer anything to renew. National would have had to apply for new permits at that time.

23. As part of National's argument that it made a "good faith error" in failing to renew the permits at the end of December 1995, National attempts to assert that it still had valid sign permits to renew because the revoked permits were paid through December 31, 1995, and DOT still had jurisdiction over the subject sign structures under the first sentence in Section 479.03: "The territory under the jurisdiction of the department for the purpose of this chapter shall include all the state."

    But Section 479.03 clearly references DOT's jurisdiction for purposes of entering upon privately-owned lands in the performance of its functions and duties under Chapter 479. The statute does not authorize DOT to require all signs in the state to be permitted under Chapter 479. Besides, as previously stated, notwithstanding payment through December 31, 1995, the permits ceased to exist when their cancellations became final.

24. By the time DOT considered National's applications for new permits, the City's seven-year amortization period had expired. As a result, National's sign structures no longer were legal, non-conforming signs under the City's code. Section 479.15(1) provides:

    No zoning board or commission or other public officer or agency shall issue a permit to

    erect any sign which is prohibited under the provisions of this chapter or the rules of the department, nor shall the department issue a permit for any sign which is prohibited by any other public board, officer, or agency in the lawful exercise of its powers. (Emphasis added.)

    
    

    Under this provision, National's applications for new sign permits cannot be granted.

25. National argues that Section 479.15(1) does not apply because DOT is required by Section 479.02(1) to administer federal regulations which prohibit removal of a legal, non- conforming sign during a local government's "amortization" period without just compensation. But, as both parties have agreed, the "taking" issue and "just compensation" are not being decided in this proceeding. Second, the City's "amortization" period expired on January 19, 1996; if the subject sign structures are required to be removed, they will not be removed during an "amortization" period, when they would still be legal, non- conforming signs.

26. Section 479.07(3)(b) provides in pertinent part:

    
    

    Every permit application must be accompanied by the appropriate permit fee; a signed statement by the owner or other person in lawful control of the site on which the sign is located or will be erected, authorizing the placement of the sign on that site; and, where local governmental regulation of signs exists, 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 department.

    National argues that the new permit applications must be granted because they were accompanied by valid building permits. But, in view of amendments to the City code since issuance of the building permits in the early to mid-1980's, the building permits no longer constitute a "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 department." (Emphasis added.) To the contrary, the evidence was that the subject sign structures do not comply with the City's codes and will not be permitted by the City. Under those circumstances, the applications for new sign permits cannot be granted under Section 479.07(3)(b).

27. National also argues that the new sign permit applications must be granted as legal, non-conforming signs because they were legal, non-conforming signs through January 19, 1996--after the date on which State Road 60, east of U.S. 19, became part of the NHS (November 28, 1995). Section 479.07(9)(c) provides: "Nothing in this subsection shall be construed so as to cause a sign which was conforming on October 1, 1984, to become nonconforming." But the "subsection" referred to-- subsection (9)--sets out state spacing and size restrictions. The exception set out in Section 479.07(9)(c) does not refer to local requirements.

28. National also argues that the new sign permit applications must be granted under Section 479.105(1), which provides in pertinent part:

(1) 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 highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

* * *

(e) However, 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 7 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 7-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 and all pertinent fees required by this chapter, including annual permit renewal fees payable since the date of the erection of the sign.

In this case, the subject sign structures have been "unpermitted" only since March 1995. The exception found in Section 479.105(1)(e) does not apply.

RECOMMENDATION

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

RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits.

DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000.

COPIES FURNISHED:

Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151

Orlando, Florida 32802

Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

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: 99-003941

Orders for Case No: 99-003941