STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1298T

) PETERSON OUTDOOR ADVERTISING, )

Brevard County Board No. 3304, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearings was held in the Florida Department of Transportation Office, 1719 South Boulevard, Deland, Florida, on April 27, 1977, at 2:15 P.M. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: William D. Rowland, Esquire

115 East Morse Boulevard Post Office Box 539

Winter Park, Florida 32790

ISSUE

Whether the Respondent is in violation of Chapter 479, Florida Statutes, for having no identification on the sign, no valid lease for the sign and no current permit tag.

FINDINGS OF FACT

1. A violation notice was issued to the Respondent, Peterson Outdoor Advertising Company, on June 18, 1976, citing a sign located at .23 miles south of John's Road on U.S. 1, with copy "TOBYS". The violation not ice stated that the Respendent was to violation of Section 479.07(4), Florida Statutes, with no current tag, with the lust tag being 1971; Section 479.07(7), Florida Statutes, with no identifier; Section 479.13, Florida Statutes, with no valid lease.

   
   

2. The latest permit tag affixed to the sign is dated 1971. A photograph of the sign taken on the 20th of April, 1977, showed that there was no identifier on the sign. An identifier is the imprint showing the owner of the

   sign. Subsequent to the taking of the photograph, an identifier was added to the sign showing the Respondent as owner.

   
   

3. The Respondent entered into evidence an application for outdoor advertising permit dated March 2, 1977. A sign lease agreement was entered into evidence by the Respondent dated the 15th day of February, 1977, alleged to be a lease agreement from the Florida Conference Association of Seventh Day Adventists for a lease for a term of five years beginning January 1, 1973 and expiring December 31, 1977, for the subject billboard sign.

   
   

4. There was confusion as to the ownership of the sign and the sign stood without permit tags subsequent to 1971. No application for permitting of the sign was made until the Respondent made an application for a permit as indicated in the foregoing findings of fact in 1977.

   
   

5. The proposed Recommended Order of the Respondent has been considered in the preparation of this order.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 479.07(1) and (4) require the payment of an annual fee to the Petitioner, Department of Transportation, for an outdoor advertising sign outside any incorporated city which is operated, used or maintained along any federal aid primary highway or interstate highway. This statute requires that the advertising structure shall have a current valid permit tag plainly visible. The original permit and fee and the renewal of the permit and the collection of the annual fee is a responsibility delegated by the Legislature of the State of Florida to the Petitioner, Department of Transportation. When a sign has has no permit applied for or attached, as in the subject case, since 1971 and no annual fee has been paid, the sign became in violation of the law and should have been removed promptly by the Department of Transportation at the expiration of the 1971 permit under the enforcement statutes of Chapter 479. Cf. Brazil v. Division of Administration, State of Florida Department of Transportation, Case No. CC-66, June 21, 1977.

   
   

7. Section 479.07, Florida Statutes, Individual device permits; fees; tags.-, provides in part:

   
   

   "(7) Any person who shall construct, erect operate, use, or maintain, or cause or permit to be constructed, erected, operated, used or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement as provided herein shall affix the name of such person or the owner thereof to the structure in such a manner as to be visible from the front surface of the structure."

   
   

8. The Respondent, Peterson Outdoor Advertising, failed to have its ownership displayed on such sign until a few weeks prior to the hearing date.

   
   

9. Section 479.13, Florida Statutes, Written permission of owner required.-, provides as follows:

   
   

   "No person shall construct, erect, operate, use or maintain any outdoor advertising

   structure, outdoor advertising sign or ad- vertisement without the written permission of the owner or other person in lawful pos- session or control of the property on which such structure or sign is located."

   
   

10. No written permission of the owner was acquired for subject sign until the 15th day of February, 1977. Failure of the owner of the sign to secure written permission for the erection of the sign from the person in control of the real property on which the sign is to be located as well as permission for it to stand during all the period in which the sign was operated and maintained along the federal aid highways of the State is a violation of this section of the Florida Statutes.

    
    

11. The fact that there was confusion on the part of the Respondent as to the ownership of the sign does not relieve it, nor the owner, of the duty to abide by Chapter 479.

    
    

12. The subject sign was erected without written permission of the owner of the property on which the structure was located. The sign stood since 1971 without a valid permit from the Department of Transportation. No annual fee was paid since the year 1971. The sign stood in violation of the law, is presently in violation of the law and should have been removed by the Petitioner under its enforcement obligations as required by Section 479.02 and Section 479.20, Florida Statutes. Cf. DOAH Case No. 77-650, White Advertising International v. Department of Transportation.

RECOMMENDATION

Remove the subject sign inasmuch as the sign is illegal and in violation of Chapter 479, Florida Statutes.

DONE and ORDERED this 22nd day of July, 1977, 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 Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

William D. Rowland, Esquire

115 East Morse Boulevard Post Office Box 539

Winter Park, Florida 32789

Docket for Case No: 76-001298

Orders for Case No: 76-001298