STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2147T

)

J.J. HERMAN SCHOOL OF REAL )

ESTATE LAW, )

)

Respondent. )

)

RECOMMENDED ORDER

After due notice, the foregoing cause came on to be heard before Delphene

1. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in Volusia County Courthouse, DeLand, Florida, February 3, 1976 at 12:15 P.M.

   
   

   APPEARANCES

   
   

   For Petitioner: Philip S. Bennett, Esquire

   Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

   
   

   For Respondent: J.J. Herman, Owner

   Representing himself School of Real Estate Law Wintergate Square

   1350 Orange Avenue

   Winter Park, Florida 32789 ISSUE

   Whether a sign which has been standing without a current permit as required by s. 479.07(4) F.S. is eligible for a current permit upon payment of the delinquent fees.

   
   

   FINDINGS OF FACT

   
   

   1. The following described signs owned by Respondent had no current permit tags:

      
      

      Highway: East Road Location: East Near 17-92

      Copy: J. J. Herman School of Real Estate Law

      Highway: East Road Location: West Near 17-92

      Copy: J. J. Herman School of Real Estate Law

      
      

   2. The parties stipulated that the subject signs were owned and erected by the Respondent and that there were no fees paid under the requirements of Chapter 479, Florida Statutes, insofar as paying fees and obtaining current permits.

      
      

      CONCLUSIONS OF LAW

      
      

   3. No evidence was presented by either parties to show subject signs are nonconforming signs. The only evidence presented was that the Respondent had made application for a current permit for each sign and offered to pay the delinquent back fees for the years when the signs were not current. There are no rules pertaining to billboard signs contained in the Florida Administrative Code and it appears that the Florida Department of Transportation has been following an unwritten rule that permits the licensing of signs for the current year providing the licensing pays all delinquent fees for the prior years for which the required fee had not been paid. Evidently, a policy decision has been made not to accept delinquent fees and when signs are delinquent that no payment will be allowed for the delinquent fees and no current permit will be issued. Section 120.52, Florida Statutes, provides in part:

"'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organi- zation, procedure, or practice requirements of

an agency and includes any form which imposes any requirement or solicits any information not speci- fically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule."

A letter sent to the district sign coordinators, a copy of which is dated December 8, 1975, attached hereto as Exhibit 1 is a statement of general applicability that interprets the law. It cannot be properly classified as a rule under the definition above quoted. Section 120.54, F.S., provides in part:

"(1) Prior to the adoption, amendment, or repeal of any rule not described in subsection (8), an agency shall give notice of its intended action, setting forth a short and plain explanation of the purpose and effect of the proposed rule, a summary of the proposed rule, and the specific legal authority under which its adoption is authorized.

"No rule shall be adopted until 21 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be."

1. No evidence was submitted that any prior notice was given of the Department of Transportation's intention to adopt the rule contained in the attached exhibit and the Respondent's Motion for Directed Verdict on the grounds

   that the rule making provisions of Section 120.54, Florida Statutes, were not followed, was not contested, upon these grounds. The Department cannot enact a rule which it has attempted to do in this instance by letter without following procedures prescribed in Chapter 120, Florida Statutes.

   
   

2. Therefore, the Department should issue a permit providing such signs are eligible for a permit under the other requirements of Chapter 479, Florida Statutes.

RECOMMENDED ORDER

Dismiss the Petition and permit the subject signs providing such signs meet the requirements otherwise appertaining under Chapter 479, F.S.

DONE and ORDERED this 18th day of June, 1976, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Hayden Burns Building Tallahassee, Florida 32304

J.J. Herman

School of Real Estate Law Wintergate Square

1350 Orange Avenue

Winter Park, Florida 32789

Mr. O. E. Black, Administrator Outdoor Advertising Section Depart of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 75-002147T

Orders for Case No: 75-002147T