STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1704T

)

COURTELIS COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 4, 1980, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent Jay D. Schwartz, Esquire

901 Northeast 125th Street North Miami, Florida 33161

STATEMENT OF CASE

This case arose on a Notice of Violation filed July 16, 1980, by the Department of Transportation (Department) on the Courtelis Company (Courtelis), 1101 Brickell Avenue, Miami, Florida 33131, which alleged that the sign located on State Road 5, 600 feet north of the intersection of State Road 5 and SW 136th Street was in violation of Sections 479.04(1), 479.07(1) and (7), and 479.16(1), Florida Statutes, and Rules 14-10.06(1)(b)3 and 14-10.07(2)(a) and (c), Florida Administrative Code. On July 28, 1980, James J. Kurps, Director of Management for Courtelis, requested a formal hearing pursuant to Section 120.57, Florida Statutes.

The Department filed a second Notice of Violation on the same sign with Courtelis alleging that illumination had been added to the sign on August 19, 1980, in violation of Sections 479.04(1) and 479.07, Florida Statutes. However, at hearing the receipt of this notice was controverted by Courtelis, the Department was unable to show that it had complied with its rules requiring notice via registered mail return receipt requested, and the hearing was limited to the issues raised in the Notice of Violation dated July 16, 1980, on a finding that the Department had filed to properly serve its Notice of Violation.

On September 16, 1980, this case was referred by the Department to the Division of Administrative Hearings (Division), and Notice of Hearing was given

on October 10, 1980, of the hearing on December 11, 1980. Courtelis moved for a continuance on November 20, 1980, because Counsel had just been retained, and the motion was granted upon the Department's representation that it had no objection to the continuance. By an order dated December 10, 1980, the hearing was continued until February 4, 1981, the first mutually convenient date. On December 10, 1980, Courtelis also filed its response to the Department's Request for Admissions with the Division together with its copy of the Department's Interrogatories which Courtelis had not answered. The responses to the Request for Admissions reflected that Courtelis denied ownership of the subject sign.

Based on the denial of ownership by Courtelis the Hearing Officer inquired at the onset of the hearing what substantial interest of Courtelis was affected by the agency's proposed action. Courtelis represented that it was managing agent for a shopping mall and had placed the advertisement on the subject sign in behalf of the mall and its lessees. Courtelis denied ownership of the sign and subsequently introduced documents showing that the title was not in Courtelis. The Department did not controvert the interest of Courtelis and further asserted that there was such a close association between Courtelis and the owners of the sign that notice to Courtelis was notice to the owners of the sign. Because this was an issue of fact the hearing was permitted to continue, and evidence was presented by both parties on this and other issues.

The Department presented evidence showing that the subject sign had been substantially reconstructed. The Department did not show that Courtelis was the owner of the sign, nor did the Department show that its notice to Courtelis of the alleged violation constituted notice to the owners.

Mr. James J. Kurps, of Courtelis, testified that the company was the manager of the mall advertised on the sign, that the company had leased the sign for advertising purposes, and that the company maintained the sign under the lease agreement. Although the leases from the owners to their lessees were introduced, the agreement between Courtelis and their Lessor(s) was not introduced.

Rule 14-10.05(2)(c), (d), (g), (h) and (i), Florida Administrative Code, clearly requires that notice of violation be served on the owner of the sign alleged to be in violation. Because the right to maintain such a sign and lease it for advertising purposes is a valuable property right, and because a proof of the violations alleged could result in the loss of those rights, due process requires that the owner receive notice and the opportunity to appear. Although Courtelis is an interested party and has the right to participate in a proceeding to remove the sign, it is the owner or owners who have the primary interest, as the Department's own rules reflect.

ISSUE

The issue in the instant case is whether the Department had notified the owner of the subject sign of the alleged violations as required by Rule 14- 10.05, Florida Administrative Code.

SUMMARY OF CONCLUSIONS

The facts presented show that the Department of Transportation failed to notify the owners of the subject sign. In the absence of notice to the owners of the sign, a final order cannot be entered taking action against the sign because an indispensable party under the Department's rules did not receive notice and therefore was denied due process.

FINDINGS OF FACT

1. The Department of Transportation noticed the Courtelis Company, 1101 Brickell Avenue, Miami, Florida 33131, on July 16, 1980, that a sign located on State Road 5, 600 feet north of the intersection of State Road 5 and SW 136th Street was in violation of Sections 479.04(1), 479.07(1) and (7), and 479.16(1), Florida Statutes, and Rules 14-10.06(1)(b)3 and 14-10.07(2)(a) and (c), Florida Administrative Code. The Department did not notice any other person or persons of the sign's alleged violations.

   
   

2. The Courtelis Company subleases the sign from lessors who subleased the property and sign from the owners. The owners of the sign are Florida East Coast Railway Company, Richard C. Grace and Margaret R. Grace. See Exhibit 1 and page 5 of Exhibit 2, regarding all appurtenances to the leasehold.

   
   

3. No evidence was introduced that showed the Courtelis Company was the agent for service of process for the owners or was authorized to represent the owners in any litigation or legal actions involving the sign.

   
   

   CONCLUSIONS OF LAW

   
   

4. It is inherent that any tribunal has authority to make determinations concerning the limits of its jurisdiction and whether the parties before it have properly invoked that jurisdiction.

   
   

5. Rule 14-10.05(2)(c) and (g), Florida Administrative Code, requires the Department to give notice of violation of alleged violations of Chapter 479, Florida Statutes, to the licensed sign owners and unlicensed owners of signs cited by the Department. This rule insures that the owner of a cited sign is provided procedural due process because determinations may be made in the resulting proceedings which would call for the removal of a cited sign.

   
   

6. The Department has not given notice in the instant case to the owners of the subject sign. The Courtelis Company, which was noticed, is not the owner of the sign. The Department did not show that the Courtelis Company was the agent for service of process for the owners or was authorized to represent the owners in any legal action taken against the sign. Although the Courtelis Company may have had some tenuous relationship with the persons who leased the sign from the owners, the Department's notice to the Courtelis Company cannot be construed as notice to the owners. No relationship between the owners and the Courtelis Company was shown to exist. In the absence of notice to the owners of the subject sign, the Department has not complied with the requirements of Rule 14-10.05, Florida Administrative Code. Without notice to the owners there is no jurisdiction to enter a final order in this cause taking action against the sign. To take action without the required notice would violate the rights of the owners of the sign to procedural due process.

   
   

   RECOMMENDATION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the agency head of the Department of Transportation enter a final order dismissing this cause for lack of jurisdiction over the owner(s) of the sign.

   DONE and ORDERED this 3rd day of March, 1981, in Tallahassee, Leon County, Florida.

   
   

   STEPHEN F. DEAN

   Hearing Officer

   Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32301

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1981.

   
   

   
   

   COPIES FURNISHED:

   
   

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

   
   

   Jay D. Schwartz, Esquire 901 NE 125th Street

   North Miami, Florida 33161

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

   
   

   DEPARTMENT OF TRANSPORTATION,

   
   

   Petitioner,

   
   

   vs. CASE NO. 80-1704T

   
   

   COURTELIS COMPANY,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This Agency has reviewed the record in this case and the Recommended Order of the Hearing Officer and finds the Findings of Fact of the Hearing Officer not

   entirely supported by the evidence and the Conclusions of Law too limited. The Recommended Order is set out in material part as follows:

   
   

   This case was heard pursuant to notice

   on February 4, 1980(sic) in Ft. Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner Charles G. Gardner, Esquire

   Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

   
   

   For Respondent Jay D. Schwartz, Esquire

   901 NE 125th Street

   North Miami, Florida 33161 FINDINGS OF FACT

   1. The Department of Transportation

      noticed the Courtelis Company, 1101 Srickell Avenue, Miami, Florida 33131, on July 16, 1980, that a sign located on State Road 5, 600 feet north of the intersection of State Road 5 and

      SW 136th Street was in violation of Sections 479.04(1), 479.07(1) and (7), and 479.16(1)

      Florida Statutes, and Rules 14-10.06(1)(b)3 and 14-10.07(2)(a) and (c), Florida Adminis- trative Code. The Department did not notice any other person or persons of the sign's alleged violations.

      
      

   2. The Courtelis Company subleases the

      sign from lessors who subleased the property and sign from the owners. The owners of the sign are Florida East Coast Railway Company, Richard C. Grace and Margaret R. Grace. See Exhibit 1 and page 5 of Exhibit 2, regarding all appurtenances to the leasehold.

      
      

   3. No evidence was introduced that showed

the Courtelis Company was the agent for service of process for the owners or was authorized to represent the owners in any litigation or legal actions involving the sign.

CONCLUSIONS OF LAW (SUMMARIZED)

. . . In the absence of notice to the owners of the subject sign, the Department has not complied with the requirements of Rule 14-10.05, Florida Administrative Code. Without notice to the owners there is no jurisdiction to enter a final order

in this cause taking action against the sign. To

take action without the required notice would vio- late the rights of the owners of the sign to pro- cedural due process.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the agency head of the Department of Trans- portation enter a final order dismissing this cause for lack of jurisdiction over the owner(s) of the sign.

The finding of fact that "the owners of the sign are Florida East Coast Railway Company, Richard C. Grace and Margaret R. Grace" is not supported by the evidence. Exhibit 1, relied on by the Hearing Officer, recites that it is a lease of "a parcel of land with the right and privilege to construct and maintain a signboard on Railway's property"; it further provides (page 4) that "Upon termination of this Agreement, Lessee shall remove said sign from Railway's said property and restore the property in as good or better condition than before said sign was installed, including all posts, braces and appurtenances". The only reasonable conclusion is that the railway company is not the owner of the sign.

As to ownership by the Graces, there is testimony (Transcript, page 24) by

1. C. Kenney, III, reporting a conversation with Mrs. Grace, received over the objection of Respondent as follows:

   
   

   1. Mrs. Grace informed me that they were the owners of that particular piece of land, but that that parti- cular piece of land was being leased to Courtelis.

Q. Did she state whether or not they owned the sign?

MR. SCHWARTZ: The same objection, Your Honor.

THE HEARING OFFICER: Overruled.

THE WITNESS: Yes. I asked her if that was their sign, and she said, "no", it was not their sign.

Whatever the meaning of the term "appurtenances" in Exhibit 2, cited by the Hearing Officer, it is not sufficient to overcome a flat denial by Mrs. Grace that the sign was the property of the landowners.

The Department accepts the finding of fact that the Courtelis Company is not the owner of the sign and therefore notice to Courtelis Company was not notice to the sign owners.

The Department rejects the Conclusion of Law of the Hearing Officer that:

. . . In the absence of notice to the owner of the subject sign, the Department has not

complied with the requirements of Rule 14-10.05, Florida Administrative Code. Without notice to the owners there is no jurisdiction to enter a Final Order in this cause taking action against the sign. To take action without the required notice would violate the rights of the owners

of the sign to procedural due process.

The serving of notice to the owner of a sign as provided by Rule 14-10.05 is predicated on the observance by the sign owner of the requirements of Section 479.07(7) and 479.17, Florida Statutes. The provisions of Section 479.07(7) are:

(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 advertise- ment as provided herein shall affix the name of such person or the owner thereof to the struc- ture in such a manner as to be visible from the

front surface of the structure. (Emphasis supplied.) Section 479.17 reads as follows:

479.17 Violation a nuisance; abatement.-

Any advertisement, advertising sign, or adver- tising structure which is constructed, erected, operated, used, maintained, posted, or displayed in violation of this chapter is hereby declared to be a public and private nuisance and shall be forthwith removed, obliterated, or abated by the department, and for that purpose its representa- tives may enter upon private property without in-

curring any liability therefor; provided, however, that if any licensed or unlicensed outdoor adver- tising structure or outdoor advertising sign of the value of $100 or more bears thereon the name

of the owner thereof, the said owner shall be given written notice of the alleged violation, and shall have 30 days after the receipt thereof within which to show that the said advertisement, advertising sign, or advertising structure fees not violate

the provisions of this chapter. (Emphasis added.)

The language of the statute is clear. A sign in violation of Chapter 479 is to be removed, obliterated, or abated by the Department. Prior notice to the owner is to be given only where the owner has himself complied with the notice requirements of the statute and affixed his name to the structure.

Nevertheless, the Department has gone beyond the requirements of the statute in the present case, has attempted to determine ownership, serve notice and provide a Hearing to the owner. It has been frustrated in the attempt.

The Hearing Officer recommends that this cause be dismissed for lack of jurisdiction over the owners of the sign. But the cause went to Hearing at the request of Respondent, who appeared and was heard on the basis of his having an interest in the sign, never clearly established. Respondent stipulated that "the sign has no current Florida outdoor advertising permit". (Transcript, page 14.) This immediately established a prima facie case that the sign was in violation of Chapter 479 and subject to removal. Section 479.07(4) states in pertinent part:

. . . The construction, erection, use or maintenance of any advertising structure, advertising sign or advertisement which

is required by this chapter to be permitted, without having affixed thereto a currently valid permanent permit tag shall be prima facie evidence that the same has been con- structed or erected and is being operated, used, or maintained in violation of the pro- visions of this chapter, and shall be subject to removal by legal representatives of the department.

The Respondent further stipulated "that the sign is within 200 feet of another existing outdoor advertising sign which faces in the same direction and is on the same side of U.S. 1 as the subject sign. The sign located within 200 feet of the subject sign bears a current Florida outdoor advertising permit" (Transcript, page 14) This constitutes a violation of Rule 14-10.05, F.A.C., as alleged by the Department.

Even so, the sign may have been allowed to remain in place as a nonconforming sign as provided by Rule 14-10.07, so long as repairs did not exceed 25 percent of the value of the sign. There is substantial evidence to support a finding that the sign was 100 percent replaced.

Respondent contends that reconstruction of the sign was in accordance with subsection (2)(d) of the rule which provides "A sign destroyed by vandalism or other criminal or tortious act may be erected in kind".

But an examination of the record produces no support for this contention.

AGENCY FINDINGS OF FACT

1. Subject sign was a nonconforming sign which had been allowed to remain in place as provided by Rule 14-10.07.

   
   

2. The sign was replaced with a completely new structure.

   
   

3. The name of the owner was not affixed to the sign.

AGENCY CONCLUSIONS OF LAW

1. Complete reconstruction of the sign removed its status as a nonconforming sign under Rule 14-10.07.

   
   

2. The sign is subject to removal as violating the spacing requirements of Rule 14-10.06 adopted pursuant to Section 479.02, Florida Statutes.

3. Section 479.17, Florida Statutes, requires that the Department remove, obliterate, or abate the sign.

   
   

4. No prior notice of Department action need be given the sign owner in the absence of the owner's name being affixed to the sign. Section 479.17, Florida Statutes.

It is accordingly,

ORDERED that the subject sign be removed forthwith. DONE AND ORDERED this 22nd day of June, 1981.

JACOB D. VARN SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

COPIES FURNISHED:

Stephen F. Dean, Esquire Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Jay D. Schwartz, Esquire 901 NE 125th Street

North Miami, Florida 33161

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

Patrick D. Calvin, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 80-001704

Orders for Case No: 80-001704