STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR CITRUS OUTDOOR, )

)

Petitioner, )

)

vs. ) CASE NO. 79-940T

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 18 July 1979 at Bartow, Florida.

APPEARANCES

For Petitioner: Michael D. Martin, Esquire

400 Florida Federal Building Lakeland, Florida 33802

For Respondent: Charles G. Gardner, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32301

By letter dated April 11, 1979 Lamar Citrus Outdoor, by and through its attorney, requested a hearing on its denial of a permit requested for a sign located within the city limits of Lakeland, Florida. One witness was called by Petitioner, one witness was called by Respondent and six exhibits were admitted into evidence. There is no basic dispute regarding the facts.

FINDINGS OF FACT

1. In 1959 Petitioner erected the 25' x 12' poster panels here in issue on land leased by Petitioner on East Memorial Boulevard and Gary Road in Lakeland, Florida. These signs have been properly maintained since that time.

   
   

2. Prior to 1975 signs located within city limits did not require state permits; however, in 1975 the law was changed to require those signs located within city limits to have permits. Such permits were issued upon application and without the normal fee.

   
   

3. On May 8, 1978 Petitioner made application for a permit for the two panels located on U.S. 92 (East Memorial Boulevard) and Gary Road in Lakeland (Exhibit 2). U.S. 92 is a federal aid primary highway. On 9 May 1978 the application in Exhibit 2 was disapproved because it was located within 500 feet of a sign owned by Goddard Signs which had been erected circa 1973. Goddard

   obtained a permit for its sign in 1974 (Exhibit 6) and has renewed this permit annually thereafter.

   
   

4. At the time Petitioner disapproved Exhibit 2 the policy of refusing to issue initial permits to non-conforming signs was being followed. By virtue of its proximity to the Goddard sign, Petitioner's sign was a non-conforming sign.

   
   

5. Largely because of adverse court decisions Petitioner revised its policy with respect to non-conforming signs erected many years ago to grant approval to applications received by 17 February 1979. Notice of this change was contained in a notice dated December 18, 1978 (Exhibit 4) which was sent to all outdoor advertisers including Petitioner. This notice contained the following provision:

   
   

   NOTE: Signs erected inside the limits of a city or town on an Interstate or Federal Aid Highway are required to have permits. Should you have failed to acquire such a tag, you should make application and obtain these permits by February 17, 1979. Failure to do so makes the sign subject to all the penalties provided for in Chapter 476 of the Florida Statutes, including, but not limited to, the removal of the signs.

   
   

6. Although Petitioner was aware of this notice, it did not submit an application for the signs in question until March 21, 1979 (Exhibit 3). This application was also denied by Petitioner because of its proximity to the Goddard sign.

   
   

7. Had Petitioner's application (Exhibit 3) been submitted on or before 17 February 1979 it would have been approved by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

   
   

9. Petitioner's signs were erected prior to the time permits were required for signs located within city limits and as such enjoy grandfather status as

   non-conforming signs.

   
   

10. Respondent's policy with respect to non-conforming signs, contained in 14-10.04(3), Florida Administrative Code, was repudiated by the legislature effective June 6, 1978, and by the courts. Walker v. State, Department of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979); Outdoor Advertising Art, Inc.

    v. Florida Department of Transportation, 366 So.2d 114 (Fla. 1st DCA 1979); A.

    W. Lee, Jr. v. Florida Department of Transportation, 366 So.2d 116 (Fla. 1st DCA 1979); and White Advertising International v. State of Florida, Department of Transportation, 368 So.2d 411 (Fla. 1st DCA 1979).

    
    

11. During the period including denial of Petitioner's May 1978 application and the issuance of the general notice that the policy leading to the denial of that application had been reversed, considerable confusion existed regarding the status of all signs which did not have current permits.

12. Respondent rightly takes the position that Petitioner, by virtue of its primary business of operating outdoor advertising, is required to keep itself cognizant of statutes and rules issued by Respondent respecting outdoor advertising signs, more so than would the owner of only one sign. However, where the confusion regarding the permitting of non-conforming signs was originated by Respondent, it does not appear equitable to require Petitioner to follow to the letter the directives of Respondent or suffer forfeiture of its property.

    
    

13. Respondent's policy that led to disapproval of Petitioner's May 1978 application was found invalid by the courts in the cases above cited.

    
    

14. When Respondent issued its December 18, 1978 Notice, it was addressed to no specific addressee but transmitted generally to all permittees. Therein these sign owners were given sixty days in which to apply for permits for signs for which permits had previously been denied or which had never been issued. It is the failure of Petitioner to submit an application within this sixty-day period that is now claimed by Respondent as justification for denial of the application submitted after the 17 February 1979 deadline.

    
    

15. While there shall one day come a time at which non-conforming signs not holding a current permit must be removed, it is submitted that this case is not that time.

    
    

16. The pivotal issue is whether the 18 December 1978 Notice constitutes "notice and reasonable opportunity" to Petitioner to obtain a permit for the sign it had maintained for nearly 20 years. Because of the confusion resulting from Respondent's vacillating position (albeit as the result of court decision) at the time this notice was promulgated, I find this did not constitute adequate notice and that Petitioner's application submitted March 21, 1979 was timely and should have been approved.

    
    

17. From the foregoing it is concluded that Petitioner's application for permits submitted March 21, 1979 for the signs located at East Memorial Drive and Gary Road in Lakeland, Florida should be approved. It is therefore

RECOMMENDED that Lamar Citrus Outdoor's application for a permit for signs located at East Memorial Drive and Gary Road in Lakeland, Florida be approved.

Entered this 21st day of August, 1979.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1979.

COPIES FURNISHED:

Michael D. Martin, Esquire

400 Florida Federal Building Lakeland, Florida 33802

Charles G. Gardner, Esquire Florida Department of

Transportation Haydon Burns Building

Tallahassee, Florida 32301

Docket for Case No: 79-000940

Orders for Case No: 79-000940