STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1458T

)

LUST INDUSTRIES, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2185T

)

MAXMEDIA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in the above matters on December 15, 1983, in Deland, Florida. The transcript was received on January 9, 1984, and the parties requested and were granted until March 9, 1984, to submit proposed findings of fact and conclusions of law, upon their waiver of the 30 day time requirement for the issuance of this recommended order. A proposed recommended order was filed on behalf of Lust Industries, and this has been considered. Where not adopted and incorporated herein the proposed findings and conclusions set forth therein were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected. Nothing has been received from the Department or from Maxmedia, Inc.

APPEARANCES

For Petitioner, Charles G. Gardner, Esquire

Department of Haydon Burns Building, Mail Station 58 Transportation Tallahassee, Florida 32301-8064

For Respondent, William F. Poole IV, Esquire Lust Industries 644 West Colonial Drive

Orlando, Florida 32802

For Respondent, Gerald S. Livingston, Esquire Maxmedia, Inc. Post Office Box 2151

Orlando, Florida 32802

Maxmedia, Inc., was charged by Notice of Violation issued on June 30, 1982, with failure to have a state sign permit and with failure to display the owner's

name on a sign erected on State Road 600 (U.S. 17/92) approximately .75 mile north of State Road 50 inside the City of Orlando, Florida. This violation notice also charged that Maxmedia's sign at this location violated the spacing rule on a federal-aid primary highway in that it was within 500 feet of a sign location permitted to Lust Industries.

The Department also seeks to revoke the permits issued to Lust Industries for a location at the corner of U.S. 17/92 and Virginia Avenue inside the City of Orlando in Orange County, Florida. This is the location which is within 500 feet from the sign erected by Maxmedia, and it is the existence of these permits held by Lust Industries that renders the location of the Maxmedia sign unlawful as violative of the spacing rule. The Department contends that its issuance of these permits to Lust Industries was improper because the proposed location is inside the city of Orlando, and no city permit had been obtained; thus, the harmony of regulations provisions of the statutes and rules had been violated.

These two cases were consolidated for hearing, and the issues will be disposed of in this consolidated recommended order. The Department presented testimony from two of its outdoor advertising representatives, and four exhibits were offered and received in evidence. Maxmedia presented its vice president as a witness. Lust Industries offered two exhibits which were received in evidence.

FINDINGS OF FACT

1. Prior to March of 1981, Maxmedia held permits 8463-6 and 8462-6 issued by the Department for signs on property leased from Lust Industries located approximately at the intersection of U.S. 17/92 and Virginia Avenue in the city of Orlando, Florida.

   
   

2. On March 23, 1981, Maxmedia advised the Department that the sign for which it held the above permits had been dismantled, and permits numbered 8463-6 and 8462-6 were returned to the Department for cancellation.

   
   

3. On March 18, 1981, the Department received the application of Lust Industries for a sign at the location where the Maxmedia sign had been permitted, to be erected on property owned by Lust Industries. This application contained several irregularities, and the Department accepted it as an application only for the south face of the proposed sign. On May 27, 1981, the Department received the application of Lust Industries for the north face of this sign. The requested permits were issued by the Department on May 27, 1981.

   
   

4. On February 24, 1981, Maxmedia executed a lease to property located approximately 30-50 feet south of the Lust Industries property. The term of this lease was to run from April 1, 1981 to April 1, 1984.

   
   

5. On March 21, 1981, the Department received an application from Maxmedia for permits to erect signs at the location 30-50 feet south of the location owned by Lust Industries where Maxmedia had permits until it surrendered them. These permits were denied by the Department because of the permit application already received from Lust Industries for a sign 30 to 50 feet to the north.

   
   

6. On March 23, 1981, Maxmedia applied to the city of Orlando for a building permit to erect the sign at its leased location south of the Lust Industries property, and this permit was issued to Maxmedia by the city.

7. In January or February, 1981, Lust Industries had applied to the city of Orlando for a permit to build a sign on property near the sign of Maxmedia which was dismantled in March of 1981, but the requested city permit was denied because of the proximity of this location to the Maxmedia sign. After, the Maxmedia sign had been taken down, Lust Industries again applied for a city of Orlando building permit, but this was after the city permit had already been issued to Maxmedia; thus, the city again denied a permit to Lust Industries due to the existence of the outstanding permit held by Maxmedia.

   
   

8. In May or June of 1981, after having received a building permit from the city of Orlando, and after having leased the property, Maxmedia proceeded to erect the sign 30-50 feet south of the Lust Industries property. It is this sign that is the subject of the Department's violation notice issued on June 30, 1982.

   
   

9. It is the existence of this sign of Maxmedia, permitted by the city of Orlando, and erected on land currently leased, that prevents Lust Industries from obtaining the city of Orlando building permit it needs in order to be able to erect a sign 30 to 50 feet to the north. Thus, the Department seeks to revoke the state permits it issued to Lust Industries which violate the harmony of regulations provisions of the statutes and rules.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of Transportation has the authority to regulate outdoor advertising signs pursuant to the provisions of Chapter 479, Florida Statutes.

    
    

11. The city of Orlando has zoning ordinances and requirements for the issuance of building permits before the city will allow a sign structure to be erected inside its corporate limits. Thus, both the Maxmedia location and the Lust Industries location are required by the City of Orlando to have a city building permit before a sign can he erected, but: only Maxmedia holds a city permit pursuant to which its sign was erected.

    
    

12. Section 479.07(1), Florida Statutes, requires that a permit be obtained from the Department prior to the erection of a sign inside the corporate limits of municipalities when the location is along a federal-aid primary highway, as the locations are in this case. Thus, both the Maxmedia location and the Lust Industries location are required to be permitted by the Department, but only Lust Industries holds a state permit.

    
    

13. Section 479.15(1), Florida Statutes, entitled the Harmony of Regulations statute, prohibits the Department from permitting any sign structure which is prohibited by any other public agency or board in the lawful exercise of its powers. Since the city of Orlando requires a building permit before a sign structure may be erected inside its corporate limits, and Lust Industries did not have such a permit when it applied for the state permits, or when the state permits were issued, the Department should not have issued permits to Lust Industries. Its issuance of these permits to Lust Industries was in violation of the harmony of regulations statutes.

    
    

14. Permits issued by the Department for outdoor advertising signs can only be revoked under circumstances set forth in Section 479.08(1), Florida Statutes. The applicable provision of this statute requires the Department to

    revoke any permit when the construction, erection, use or display of the sign for which the permit is issued by the Department is prevented by any zoning board or other agency also having jurisdiction over the proposed sign or its site. In the subject case, the city of Orlando also has jurisdiction over the sign sites involved, and erection of a structure by Lust Industries is prevented by the failure and unwillingness of the city to issue a building permit to Lust Industries. Thus, the Department must revoke the permits issued to Lust Industries, pursuant to this statute.

    
    

15. The sign of Maxmedia was lawfully erected pursuant to a valid building permit issued by the city of Orlando. Its legality under Chapter 479, Florida Statutes, has been jeopardized by the Department's issuance of permits to Lust Industries which did not comply with the harmony of regulations statutes either when issued or presently. But for the permits issued wrongfully to Lust Industries, the permit application of Maxmedia should have been granted, because the spacing rule would not have been violated. Thus, the violation notice issued to Maxmedia should be dismissed, the permits issued to Lust Industries should be revoked, and there then being no impediment to the issuance of permits to Maxmedia pursuant to its application, these permits should be issued.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its Final Order revoking the permits

held by Lust Industries, dismissing the Notice of Violation against Maxmedia, Inc., and granting the application of Maxmedia, Inc., for permits as requested in its application received on March 24, 1981.

THIS RECOMMENDED ORDER entered on this 18th day of April, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 18th day of April, 1984.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Building, M. S. 58 Tallahassee, Florida 32301-8064

William F. Poole IV, Esquire 644 West Colonial Drive Orlando, Florida 32802

Gerald S. Livingston, Esquire

P. O. Box 2151

Orlando, Florida 32802

Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 82-002185

Orders for Case No: 82-002185