STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETERSON OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 77-641T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, at the Department of Transportation Office, 719 South Boulevard, Deland, Florida, on April 27, 1977, at 2:45 P.M.

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 signs of Petitioner, Peterson Outdoor Advertising, violate Section 479.07, Florida Statutes, and the rules promulgated pursuant thereto including other state and federal laws, rules and regulations.

Whether the Petitioner obtained a permit as required before erecting subject signs.

FINDINGS OF FACT

1. Violation notices for two signs owned by Petitioner were issued and were the subject of this hearing. Subsequent to the taking of the testimony but prior to the close of the record, the Respondent, Florida Department of Transportation, withdrew its complaint against Petitioner, Peterson Outdoor Advertising, on one of the signs, to wit: Board No. 92 located 4.4 miles north of State Road 404, Highway A1A, n/b with copy "Bank Services" for which a violation notice was issued the 14th day of March, 1977.

   
   

2. The violation notice issued against Peterson Outdoor Advertising Corporation on Board No. 3297 located at 1.07 miles south of State Road 520 on

   Highway 1-95, M.P. 37.10 with copy "Seaworld" is the subject of this hearing. The violation notice cited Petitioner for violation of Section 479.07(1), no permit.

   
   

3. Petitioner had a sign located in the approximate location of the sign now cited in violation. The sign was badly damaged by what was apparently an act of God, a windstorm. Most of the sign was destroyed as shown by Petitioner's Exhibit 1, a photograph taken in January of 1977. The sign had been constructed with six inch by eight inch beans and a plywood face. The height of the sign was approximately six feet. There were Peterson identifiers on part of the structure that was left standing.

   
   

4. A new structure was erected at the approximate same location. Round poles for the supporting structure were erected. The new sign of new materials was built and the elevation of the new sign is approximately twenty feet in height. The State's Exhibits 2 and 3, photos taken on February 4, 1977, show the new structure, Exhibit 2 showing new round poles and the State's Exhibit 3 showing a sign approximately twenty feet in height advertising "Florida's Best Entertainment Value SEAWORLD. On 4 Between Orlando & Walt Disney World" as copy. The State's Exhibit 1 shows the remains of the old sign in the approximate location. The new sign, which is the sign of this hearing, carries the same permit nunber that the prior destroyed sign carried on one of the posts of the structure.

   
   

5. The Respondent, Department of Transportation, contends: that no permit was applied for or obtained for the subject sign; that the old sign in the approximate same location was destroyed by an act of God and a new sign was rebuilt in the approximate location without a permit; that the old sign was erected with square poles and to a height of about six feet whereas the new sign was erected with round poles and with a height of approximately 20 feet; that the permit displayed on the new sign is the permit that had been issued to the old destroyed sign and when the sign was blown down the permit expired and should not have been placed on the new sign by the Petitioner, Peterson Outdoor Advertising. Petitioner, Peterson Outdoor Advertising, contends: that no one saw the old sign fall and it is a mere conclusion that it blew down; that it has a permit on it.

   
   

6. The Proposed Recommended Order of Petitioner has been considered in the preparation of this Order.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

   "(1) Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided.

   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 along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for

   a permit on a form provided by the department.

   A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4).

   
   

8. No permit was applied for or granted for the subject new sign erected by the Petitioner on new round poles with new plywood at a new height of 20 feet. The sign was erected subsequent to January, 1977, and during the months of January and February. The permit affixed to the new pole was a permit issued for a sign which was destroyed and with its destruction the permit expired.

   
   

9. Petitioner does not contend that the subject sign is not a new sign erected in the approximate same site and location. It does not contend that the sign is a rebuilt or reerected sign. The Respondent State showed that the old sign was destroyed and became ineligible for reerection. Compare Department of Transportation v. Barry Moody Signs, DOAH Case No. 75-2058 and Brazil v. Div. of Adm., State of Fla. Dept. of Transportation, Case No. CC-66, June 21, 1977.

RECOMMENDATION

Remove the sign, Board No. 32-97.

DONE and ORDERED this day of July, 19'77, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 503

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1977.

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 32790

Docket for Case No: 77-000641

Orders for Case No: 77-000641