Permit AG558-12 was for a sign on the Bize property which would face east adjacent to I-4. At the time of Petitioner's application on November 4, 1982, no sign had actually been erected pursuant to Permit No. AG558-12.
Permit No. AG558-12 had been issued to Foster and Kleiser in February, 1982, pursuant to an application accompanied by a written lease containing the purported signature of Mr. John T. Bize, the named lessor. (See Respondent's Exhibit 6.) Mr. John T. Bize died on January 1, 1977, and, therefore, was deceased on February 19, 1982, the date of the lease submitted by Foster and Kleiser with its application for Permit No. AG558-12. The only witness signature appearing on the lease was that of Thomas Marc O'Neill. Mr. O'Neill did not observe or witness the lessor sign the lease and felt, at the time he signed, that he was witnessing the signature of Ronald L. Westberry, who signed the lease on behalf of Foster and Kleiser. At the time he signed as a witness, Mr. O'Neill was and continues to be an employee of Foster and Kleiser.
Subsequent to its disapproval of Petitioner's application for an easterly facing sign permit, the Department of Transportation was informed by Petitioner of the invalid lease on which Permit No. AG558-12 had been issued.
By letter dated November 17, 1982, the Department notified Foster and Kleiser of the invalid lease and gave Foster and Kleiser 30 days within which to correct the problem. On November 22, 1982, the Department received a new lease for the Bize property and sign permit AG558-12. The new lease contained the following addendum:
Effective date of lease shall be the of [sic] closing of purchase of said property or erection of signs, which- ever is first.
There was no further evidence of the actual effective date of the lease.
The Department of Transportation has a policy of requiring, with an application for a sign permit, a lease or other written evidence that the landowner has given permission to use his property for outdoor advertising purposes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Pursuant to Sections 479.02 and 479.13, Florida Statutes, the Department of Transportation is empowered to regulate the erection and maintenance of outdoor advertising signs in the State of Florida.
Rule 14-10.06(2)(a), Florida Administrative Code, provides the following spacing requirement for signs located adjacent to interstate highways:
No two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the high- way facing the same direction.
Petitioner's westerly facing sign application for the Rood property was denied by the Department because an existing sign facing the same direction was already standing on the Rood property. This sign was erected and maintained
by Foster and Kleiser pursuant to Permit No. 7716-12. On November 3, 1982, the lessor had sent a notice of cancellation of the lease Foster and Kleiser held for the sign on the Rood property. However, under the terms of the lease, Foster and Kleiser had 30 days within which to remove its sign and, therefore, at the time Petitioner submitted its application for a westerly facing sign on the Rood property, an existing, conflicting sign existed on that property. This application of petitioner violated the spacing requirements of Rule 14- 10.06(2)(a), Florida Administrative Code, and, therefore, the denial of the permit was proper.
Petitioner's application for a permit for an easterly facing sign was denied because it conflicted with Intervenor's Permit No. 558-12 and violated the spacing requirements of Rule 14-10.06(2)(a), Florida Administrative Code. After the Department denied Petitioner's application for a permit for an easterly facing sign, it came to the Department's attention that the lease which had been submitted with the application for Permit No. 558-12 was invalid. The lease appeared to have been signed by Mr. John T. Bize. However, Mr. Bize died on January 1, 1977, and the date of the lease was February 19, 1982, some five years after his death. The Intervenor and holder of Permit 558-12, Foster and Kleiser, offered no explanation at the formal hearing as to how the lease submitted came into existence. On November 4, 1982, when Petitioner submitted its application, Foster and Kleiser had not erected a sign on the Bize property pursuant to Permit 558-12. After discovering the invalid lease, the Department, pursuant to Section 479.08, Florida Statutes, gave Foster and Kleiser 30 days within which to correct the problem.
The issue then is whether a permit issued upon an invalid lease falls within the provisions of Section 479.08, Florida Statutes, and can operate to preclude approval of a subsequent conflicting application. Florida Statute 479.07(6) (1981) provides:
No person shall erect or cause to
be erected an advertising structure, advertising sign or advertisement upon the property of another without first securing the written permission of the owner or lessee of said property and applying for and re- ceiving a current permit tag as herein provided.
This section clearly contemplates written consent of the landowner prior to erection of a sign on that landowner's property. There is no requirement in Section 479.07 that the written consent of the landowner be submitted with the application for a permit. However, the Department of Transportation has adopted a policy of requiring that the written consent be submitted with the application in order to obtain approval. In February, 1982, Foster and Kleiser submitted an invalid lease as a part of its application for Permit AG558-12. With regard to such applications, Florida Statute 479.08 (1981) provides in relevant part:
The department may after 30 days notice in writing to the permittee, revoke any permit issued by it under
s. 479.07 upon repayment of a pro- portionate part of the fee in any case where it shall appear to the
department that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of
the provisions of this chapter unless such permittee shall, before the expiration of said 30 days, correct such false or misleading information and comply with the provisions of this chapter.
This section permits the Department, in its discretion, to revoke any permit issued upon an application containing knowingly false and misleading information, but grants to the permit holder a 30-day grace period within which to correct the knowingly false and misleading information. By Department policy, the written consent required under Section 479.07(6), Florida Statutes, is required as a part of an application for a permit. The Legislature provided that permits issued upon knowingly false information cannot be revoked without giving the permittee an opportunity to correct the false information. A permit issued upon knowingly false information then is a valid permit until such time as the Department seeks to revoke the permit and the permittee fails to correct the defective application within 30 days.
In the instant case then, a valid Permit No. AG558-12, existed on November 4, 1982, when Petitioner submitted its application for an easterly facing sign on the Rood property. Therefore, there has been no showing that the Department acted improperly in denying Petitioner's application on the grounds that it conflicted with Permit No. AG558-12. A party seeking a permit has the burden of proving entitlement to the permit. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, the Petitioner has failed to prove its entitlement to the permits applied for and, therefore, the disapproval by the Department must be affirmed.
