STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-994T

)

BILL SALTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 23, 1979, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the Department's denial of Respondent's application for a sign permit on the grounds that a lease agreement did not accompany the application. The issue is whether the Respondent's application for a permit should be granted.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Mr. Bill Salter

Bill Salter Outdoor Advertising Post Office Box 422

Milton, Florida 32570 FINDINGS OF FACT

1. Bill Salter Outdoor Advertising Company applied for an outdoor advertising sign permit on November 21, 1977. This application did not contain within it a lease or written permission of the property owner to construct a sign.

   
   

2. After correspondent with Bill Salter Outdoor Advertising Company regarding the incompleteness of the application, the Department of Transportation returned the application on June 9, 1978.

   
   

3. On June 26, 1978, the Department received its first applications from Western Gate Sign Company for permits for outdoor advertising for the same general location as that covered by Salter's earlier application.

   
   

4. On July 3, 1978, Bill Salter requested a hearing on the denial of his application.

5. On July 17, 1978, the Department received its second set of completed applications from Western for permits for outdoor advertising for the same general location as its first set of applications and that of Salter's application. These applications were submitted because Western could not build the signs at the sites covered in the original applications. All of these applications were for an area within the statutory limiting distance of 1,000 feet.

   
   

6. On July 19, 1978, the Department returned Western's applications because they were in conflict with the first application. By a letter dated August 23, 1978, the Department advised Western that it had received its applications a third time but could not approve them because of the pending hearing on Bill Salter's application, which covered the same area.

   
   

7. On May 9, 1979, this case was forwarded to the Division of Administrative Hearings for hearing by the Department and initially set for hearing on August 8, 1979, by notice dated June 20, 1979. Because of the illness of the Hearing Officer the case was rescheduled for October 23, 1979. The transcript was received on November 26, 1979.

   
   

8. On June 13, 1979, Bill Salter forwarded to the Department the lease obtained by Bill Salter Outdoor Advertising Company dated July 5, 1978.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 479.13, Florida Statutes, provides that no person shall construct, erect, operate, use or maintain any outdoor advertising structure without the written permission of the owner or other person in lawful possession or control of the property on which such structure is located. This statutory requirement has been interpreted by the Department of Transportation to require evidence of such permission to accompany an application for a permit.

   
   

10. The application of Bill Salter failed to present evidence of the landowner's permission. Because of this failure the application was returned to the applicant. After this application was returned, Western Gate Sign Company filed a complete application for permitting a sign in this area dated June 26, 1978, and received by the Department on June 27, 1978. This application was pending when Bill Salter requested a hearing on July 3, 1978, and obtained a lease on July 5, 1978. Rule 14-10.04(1)(c), Florida Administrative Code, would require that the first application received for a permit for outdoor advertising within an area be considered for approval first. In the instant case the first application was Salter's, but it was incomplete and remained so until he obtained a lease on July 5, 1978, and forwarded this to the Department in June of 1979. This has the effect of making Western Gate's application the first completed application. Therefore, Salter's application must be held until Western Gate's is considered for approval. If Western's application fails, then Salter's would be reconsidered. However, Western should not be permitted to "perfect" its application by subsequent submissions, just as Salter's has not been permitted to so do. The right to go forward shifts from one to the other until one of the applications is approved.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Bill Salter's application for a permit for outdoor advertising be denied.

DONE and ORDERED this 21st day of December, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

Mr. Bill Salter

Bill Salter Outdoor Advertising Post Office Box 422

Milton, Florida 32570

Docket for Case No: 79-000994

Orders for Case No: 79-000994