vs. ) CASE NO. 80-1014T
Respondent. )
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 2 December 1980 at Bartow, Florida.
For Petitioner: Thomas N. Harris, Esquire
St. Petersburg, Florida 33731
For Respondent: Charles G. Gardner, Esquire
By letter dated May 16, 1980, Foster and Kleiser, Petitioner, requested an administrative hearing on the disapproval of their application to erect an outdoor advertising sign on the I-275, 3.18 miles south of the I-4 in Tampa, Florida. The application was disapproved by the Department of Transportation (DOT), Respondent, because the sign violates the spacing requirements of Rule 14-10.06, Florida Administrative Code.
At the commencement of the hearing the parties stipulated that the sign in question is an outdoor advertising sign owned by petitioner located along the I-
275 (part of the Interstate Highway System) within the city limits of Tampa and has never been issued a permit. They also stipulated to the authenticity of various documents which were marked for identification. Thereafter two witnesses were called by Petitioner, one witness was called by Respondent and eleven exhibits were admitted into evidence.
Petitioner's predecessor in interest leased property along the I-275 in October 1973 (Exhibit 3) and erected an outdoor advertising sign thereon. One witness testified that at the time this sign was erected in 1973 there was no other sign within 500 feet of this sign.
The sign was erected within the city limits of Tampa, Florida and no permit other than a city building permit was required for this sign.
In 1974 DOT required permits for all signs including those located within city limits, but no fee was collected for the permits issued for signs within the city limits. This regulation was not enforced by DOT until 1976- 1978, although in 1974 DOT had advised sign owners that permits were required for all signs and how they were to apply for permits for those signs located within the city limits (Exhibit 4).
In 1975 National Advertising Company, in accordance with DOT instructions for obtaining permits for signs located in incorporated areas, submitted a renewal application in which it listed the sign located within 500 feet of Petitioner's sign (Exhibit 5). When no permit was issued by DOT, National Advertising Company, by letter dated September 1, 1977 (Exhibit 6), called to DOT's attention that they had not been issued permits for signs within city limits for which they had applied.
Application for a sign permit for their sign along the I-275 located within 500 feet of Petitioner's sign was submitted by National Advertising Company on 31 March 1980 (Exhibit 7) and approved by DOT. This application showed the sign to have been erected prior to 1972.
At this hearing Petitioner introduced as Exhibit 1 a copy of an Advertising Sign Permit application dated 9-1-76 executed by its predecessor in title, Martin Outdoor Advertising Company. The only indication on this application that it was received by Respondent is a received stamp dated April 15, 1980.
During the period 1976-1979 considerable confusion existed in the outdoor sign industry respecting permits for signs and particularly for those signs located within city limits despite notification to sign companies (Exhibit 4).
In an effort to clarify the situation, Respondent sent out circulars with the annual renewal notices advising all sign owners that signs along Interstate and Federal Aid Primary Highways within incorporated towns and cities required permits. In the circular dated December 18, 1978 (Exhibit 8), sign owners were told to submit applications for all unpermitted signs prior to February 17, 1979, and that failure to do so could result in the removal of the unpermitted signs. This was followed up by another circular dated October 31, 1979 (Exhibit 9) in which the deadline for applying for permits for those unpermitted signs was extended to January 1, 1980.
Neither of these circulars which were enclosed with renewal notices were delivered by Petitioner's mail room to Petitioner's real estate section. Instead, they were forwarded to accounting with renewal notices.
Upon an inspection of signs along the I-275 in March 1980, Petitioner's sign was observed without a permit and in violation of the spacing requirements. Notice of alleged violation dated 3 April 1980 was forwarded to Petitioner (Exhibit 10). Petitioner then applied for a permit for the sign which was disapproved and request for this hearing followed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Prior to 1972 Section 479.03, Florida Statutes, clearly limited the jurisdiction of the Department respecting outdoor advertising signs to areas in this state outside the corporate limits of any city or town.
In Laws 1971, c. 71-971, Section 479.03 was amended by deleting the reference to corporate limits so the first sentence of that section read:
The territory under the jurisdiction of the department for the purposes of this chapter shall include all of the state.
However, Section 479.07 excluded from the requirement of a permit signs located within the corporate limits of a city or town by providing:
Except as in this chapter otherwise provided, no person shall construct, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained, any outdoor advertising structure, outdoor advertising sign or outdoor advertise ment, outside any incorporated city or town without first obtaining a permit therefor
from the department, and paying the annual fee therefor, as herein provided.
Laws, 1974, c. 74-90 added, inter alia, the following two sentences to Section 479.07(1).
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 adver tising 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. The permanent permit tag of the kind hereafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4).
The change to Section 479.03 to give the Department jurisdiction over signs throughout the state became effective February 28, 1972. However, no permits were required for signs in incorporated areas of cities and towns until the 1974 change became effective on July 1, 1975, and then only along federal aid primary highways and interstate highways. Thus, although the Department had jurisdiction within incorporated cities and towns after 1972, no permit from the Department was required to erect a sign within incorporated limits. All that was required was the sign owner get the necessary building permit from the city.
However, following the statutory changes effective July 1, 1975, all signs within incorporated cities and towns along federal aid primary highways
and interstate highways were required to have a state-issued permit. During the period following July 1, 1975 until 1979, some confusion has existed respecting the treatment of nonconforming signs erected between February 28, 1972 and July 1, 1975.
Thus, at the time Petitioner's sign was erected in 1973 the Department had jurisdiction and the spacing requirements of Chapter 479 and rules promulgated thereunder were applicable. While this sign may be said to have grandfather status as far as permits are concerned, there is some question that the sign met the spacing requirements when erected, despite the testimony of Petitioner's witness that no other sign was within 500 feet when Petitioner's sign was erected.
Regardless of whether or not the sign was a conforming sign when erected, it became a non-conforming sign when a permit was issued to National Advertising Company for its sign located within 500 feet of Petitioner's sign.
Petitioner is in the sign business and should have been aware of the statutory changes that required permits for signs located within incorporated cities and towns after 1975. Even if not aware of the change in the law, Petitioner, in conjunction with all sign owners, was made aware of this requirement when Exhibit 4 was sent to them. If Exhibit 1 was submitted to DOT when prepared in 1976, no evidence was submitted to substantiate this fact. However, unrebutted testimony was presented that Martin's application (Exhibit
1) was disapproved in 1977, more than one year after it was submitted. It is also clear from the evidence presented that National Advertising Company applied for a permit for their sign in competition with Petitioner's sign, in 1975, followed up on this application by letter in 1977 (Exhibit 6) and finally obtained a permit in early 1980.
Petitioner was again given all opportunity to obtain a permit for this non-conforming sign when Respondent sent out Exhibits 8 and 9 to all sign owners. Due to inattention on the part of Petitioner no action was taken to submit the application for permit solicited by Respondent.
In Lamar Citrus Outdoor v. Florida Department of Transportation, DOAH Case No. 79-940T, dated 21 August 1979, this Hearing Officer found Petitioner entitled to a permit for its grandfathered-in non-conforming sign largely because Petitioner's failure to apply pursuant to a notice like Exhibit 8 was induced by Respondent's earlier disapproval of the identical application. That case was cited in the later case of Lamar Citrus Outdoor Co. v. Florida Department of Transportation, DOAH Case No. 79-1359T, dated 3 October 1979, where Petitioner was denied a permit under similar circumstances except that in the latter case no application for the permit was submitted until after the expiration of the grace period offered by the Department for these non- conforming signs qualifying for grandfather status. The instant case is closer to Case No. 79-1359T than Case No. 79-940T with the exception that Case No. 79- 1359T involved a sign clearly erected before the regulations were made applicable to incorporated cities and towns while the instant case involves a sign that could have been in violation when erected.
Petitioner is in the sign business and as such should be fully cognizant with the statutes affecting its signs. In addition, Petitioner was given notice twice by Respondent that permits were required for all signs alongside federal aid primary highways and interstate highways, including those within incorporated towns and cities. By failing to apply for a long overdue permit during the grace periods allowed by the December 18, 1978 or the October
31, 1979 directives, Petitioner has lost the right to such a permit. It is therefore
RECOMMENDED that Foster and Kleiser's application for a sign located along the I-275, 3.18 miles south of the I-4 in Tampa, Florida be DENIED.
DONE and ENTERED this 18th day of December, 1980, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1980.
Thomas M. Harris, Esquire Post Office Drawer 1441
St. Petersburg, Florida 33731
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
