STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-425T

)

MELWEB SIGNS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before the undersigned Hearing Officer on May 19, 1976. Frank H. King, Esquire, appeared on behalf of Petitioner and William D. Rowland, Esquire, appeared on behalf of Respondent. During the course of the hearing counsel for the Respondent, Melweb Signs, Inc., questioned whether a witness, Mr. Richard Boger, for the Petitioner, Department of Transportation, had given inconsistent testimony in a prior administrative hearing. Counsel for the Respondent requested and was granted ten (10) days in which to serve upon the Hearing Officer and counsel for the Department of Transportation notice of whether he wished opportunity to present matters showing contrary testimony on the part of Mr. Boger. The Hearing Officer has received no such notice from Respondent. Therefore, the hearing is closed.

Having considered the testimony and the evidence presented in this cause and having heard argument of counsel, the Hearing Officer enters the following:

FINDING OF FACT

1. An outdoor advertising structure, hereinafter referred to as Board No. 361, was erected some time prior to 1972, and has been in use by Respondent from 1973, to the date of this hearing.

   
   

2. The parties to this proceeding have stipulated to and the Hearing Officer accepts, the following facts:

   
   

   1. Board No. 361 had a valid permit in 1973, as required by Section 479.07, Florida Statutes.

   2. No application was made for a permit for Board No. 361 in 1974.

   3. An application for a permit for Board No.

      361 was made on November 21, 1975. (Exhibit 1)

   4. The zoning of the particular property upon which Board No. 361 stands has, at all times pertinent hereto, precluded the building of a new sign, thus making the existing sign, if it is able to stand at all, a nonconforming sign.

3. On September 23, 1974, the Department of Transportation notified (Exhibit 2) the Respondent that the subject sign did not have a current permit tag and requested Respondent to remit $10 to the Department of Transportation so that the Department can send you the necessary permit tag(s) to bring your sign into compliance with Florida Statutes . . . ." Respondent replied by letter dated November 6, 1974, stating that they needed further identification of the sign because they felt a tag had already been purchased. By letter dated November 13, 1974, (Exhibit 4) to the Respondent, the Department of Transportation again noted that no 1974 permit tag had been issued for the subject sign and stated that "Unless you can show proof of a tag being issued for this location, please send a renewal application with your check for this location."

   
   

4. By application dated February 11, 1975, Respondent applied for an outdoor advertising sign permit (Exhibit 6) purportedly for Board No. 361. This application contained a different description of the subject sign from that contained on the application dated November 21, 1975, (Exhibit 1) also filed by Respondent for a permit tag for Board No. 361. The application dated February 11, 1975, does not indicate whether it seeks a permit for the year 1974 or 1975, both of which were delinquent at the time of application. The application does indicate that it is only for one year, as it noted the "Fee Amount" as being that for one year only. The application dated February 11, 1975, was returned by Petitioner to Respondent along with 15 to 23 other sets of applications for other signboards, all of which were returned because of inadequate descriptions of sites and attempted payment of fees by lump sum check rather than separation of fees into that for renewal tags and that for new tags.

   
   

5. Mr. Thomas G. Chalmers, Respondent's employee responsible for the acquisition of permit tags for the subject sign, was made aware on approximately November 13, 1975, that the Department of Transportation was refusing to accept delinquent permit tag applications. Mr. Chalmers, on behalf of Respondent, submitted an application dated November 21, 1975, for a permit tag for Board No.

   361 (Exhibit 1). Exhibit 7 in this proceeding is a copy of a check from Respondent payable to Petitioner in the amount of $11, which check accompanied the application dated November 21, 1975. The fee marked as payable on the application dated November 21, 1975, is $11. The fee for one year's permit for a sign such as Board No. 361 is $11. At the time of the November 21, 1975 application, Respondent was delinquent in paying the permit fee for the years 1974 and 1975. Further, the permit fee for 1976 was due by January 1, 1976. Therefore, it does not appear from the face of this application that Respondent was attempting to pay the delinquent permit tag fees.

   
   

6. Respondent submitted an application dated February 9, 1976, for a permit tag for Board No. 361 (Exhibit 8). No evidence was presented showing that any fee accompanied this application.

   
   

7. For many years it was the policy of the Department of Transportation to accept and approve applications for delinquent permit tags, if these tags were for signs previously in existence and permitted. Only ten to fifteen percent of such delinquent tag applications were not accepted. The Department of Transportation issued such delinquent permit tags up through late 1975, when, apparently, it became their policy not to issue permit tags for signs delinquent in payment of the permit fee for prior years.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of this cause.

   
   

9. Subsection 479.07(1), Florida Statutes 1975, with certain exceptions, requires that: ". . . no person shall . . . operate, use, [or] maintain . any outdoor advertising structure, outdoor advertising sign or outdoor advertising advertisement, . . . without first obtaining a permit therefor from the department, and paying the annual fee therefor . . . ." The identical language is contained in Subsection 479.07(1), Florida Statutes 1973. Subsection 479.01(15), Florida Statutes 1975, and Subsection 479.01(14), Florida Statutes 1973, both define "maintain" as ". . . to allow to exist." Subsection 479.07(3), Florida Statutes 1973, states that "Permits issued hereunder shall expire on January 1 of each year." (emphasis added) This provision was deleted when Chapter 479 was amended by Chapter 74-80, Laws of Florida 1974, which amendment was effective January 1, 1975. The primary thrust of that amendment was to provide for the issuance of permanent tags rather than annual tags for outdoor advertising structures while still requiring annual permit fees. As is noted in the findings of fact above, Board No. 361 had a permit tag as required by Section 479.07, Florida Statutes, for the year 1973. As is further noted in the findings of fact above, the Respondent did not submit an application for a permit in 1974. Therefore, it is concluded as a matter of law that Respondent's permit for 1973 expired on January 1, 1974. From that time to the present Respondent has maintained Board No. 361 without benefit of permit from the Department of Transportation in violation of Section 479.07, Florida Statutes.

   
   

10. The Respondent asserts that it has been the policy of the Department of Transportation to issue delinquent permits for past years, and that, because of the existence of this policy for several years, Respondent was led to rely upon its continuation and should not be penalized for such reliance by the denial of delinquent permits. It is noted that in order to raise an estoppel against the State, exceptional or special circumstances and some positive act on the part of some officer of the State are generally required. Gay v. Inter- County Tel. and Tel. Co. (1952, Fla.) 60 So.2d 22. In this case, even if one were to assume that such exceptional or special circumstances had been shown by Respondent, which they have not, the question under consideration is the denial by Petitioner of Respondent's application for permit. It is concluded that this denial is lawful. Even if applicant were entitled to the delinquent permit tags upon proper application, the evidence in this cause, as noted in the findings of fact, show that Respondent has not been diligent in pursuing issuance of the delinquent tags when it was first brought to their attention and that further, they have never tendered the delinquent fees for all of the years in which the sign was unlawfully maintained without permit.

RECOMMENDED ORDER

Respondent having maintained and operated Board No. 361 in violation of the laws of Florida from January 1, 1974 up to and including the time of this hearing, it is therefore RECOMMENDED that the Department of Transportation was correct in refusing to issue delinquent permit tags and further, that the Department of Transportation should cause Board No. 361 to be removed.

ENTERED this day of August, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Attorney, State of Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

William D. Rowland, Esquire

P. O. Box 539

Winter Park, Florida

Docket for Case No: 76-000425

Orders for Case No: 76-000425