STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4171T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties on August 11, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Fort Lauderdale, Florida, on September 17, 1986. The issue for consideration was whether the Respondent's sign in question was in violation of the Florida statues and rules of the Department of Transportation as alleged in the citation issued herein on October 4, 1984.

APPEARANCES

Petitioner: Vernon L. Whittier, Jr. ,Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

BACKGROUND INFORMATION

On October 4, 1984, a representative of Petitioner, Department of Transportation, (DOT), issued a citation alleging several violations of the Florida Statutes and the rules of the Department of Transportation. On November 1, 1984, Respondent requested a formal hearing and on November 28, 1984, the case was referred to the Division of Administrative Hearings. The case was initially set for hearing in May, 1985, but due to several requests for continuance by both parties, the matter was reassigned to the undersigned and hearing was held on September 17, 1986.

At the hearing, Petitioner presented the testimony of Vana Kinchen, an outdoor advertising inspector for DOT; and Fred J. Harper, District Administrator, Outdoor Advertising, for DOT's District 4, and introduced Petitioner's Exhibits 1 - 4. Respondent presented the testimony of Richard Salomine, formerly Respondent's District Manager for the local area during the period in question, and called Mr. Harper as a hostile witness. Respondent also introduced Respondent's Exhibits A and B.

Subsequent to the hearing, both parties submitted Proposed Findings of Fact, a ruling on each of which is included in the Appendix attached hereto.

FINDINGS OF FACT

1. On January 18, 1984, Ms. Vana Kinchen, Petitioner's inspector, examined Respondent's billboard in question, located somewhat North of 8th Street (Glendale Road) on the northbound side of U.S. Highway 1 in Indian River County, Florida, and discovered that the permit tag which was supposed to be affixed to the billboard was not there. DOT records reflect the permit in force for that billboard at the time was number 3515-10.

   
   

2. Ms. Kinchen immediately contacted the Respondent's representative, Mr. Gustinelli, and told him there was a billboard owned by Respondent at that location without a tag. She requested he check it out and get back to her. When he did so the same day, Mr. Gustinelli told her that Respondent's records showed the billboard had been taken down because they had lost the lease on the property where it had been situated. Ms. Kinchen again told him that the billboard was in fact still there and for him to again check and see what was going to be done with it.

   
   

3. When Respondent took no action to rectify the situation, Ms. Kinchen wrote a report of violation on this billboard on March 20, 1984, which reflected it was sited 100 feet north of Glendale Road on the northbound side of U.S. 1, and sent it in to her headquarters. On May 14, 19841 she received a notice from DOT headquarters directing her to remove the offending billboard. She immediately contacted Mr. Gustinelli and asked him again to check on the status of the sign. When she again contacted him on May 29, 1984, he again advised her that Respondent's records showed that the sign at the location described by Ms. Kinchen had been taken down previously.

   
   

4. On June 18, 1984, Ms. Kinchen was told by Mr. Fred Harper, Petitioner's District Administrator, to give Respondent 30 more days to get the sign down. Upon the expiration of this period, the sign was removed by Ms. Kinchen and a crew from DOT. In early September, 1984, after she had taken the sign down, she discovered that Respondent had erected a new sign within inches of the site of the previous one. When she checked this new sign on October 4, 1984, she discovered that it had no permit tag affixed to it.

   
   

5. At the same time, Ms. Kinchen noticed that the sign in question was located 250 feet south of another signboard along the same side of the highway. To get this figure, she measured the distance along the edge of the pavement with a tape-measure. The sign to the north does not face the same way as the sign in issue here, however.

   
   

6. Ms. Kinchen admits that prior to the change in the law in July, 1984, the sign in question here, if bearing a proper permit tag, would have been a legal, conforming signboard under the old statute and Respondent could have removed it and replaced it with another as it wished.

   
   

7. When Ms. Kinchen wrote the citation for the replacement signboard in October, 1984, she described its location as 25 feet north of 8th Street on the northbound side of U.S. 1 (as opposed to 100 feet north of Glendale Road on the northbound side of U.S. 1). This is different from the location listed on the earlier citation which was given to Mr. Gustinelli. Though Ms. Kinchen insists the original sign which she cut down and its replacement were in the same place, and that the two citations refer to the same sign, the information provided to

   Respondent was different. There was no explanation by either party as to how close these described locations actually were though there is no doubt the citations do refer to the same sign.

   
   

8. This lack of certainty may have been confusing to Respondent and have contributed to its failure to take appropriate corrective action. In fact, Mr. Richard Solamine, Respondent's District Manager, so contends, indicating that when given the first location by Ms. Kinchen, they determined they had no sign at that location and so decided to do nothing about it. This does not, however, excuse their failure to insure that the new sign, which they erected on the site of the old one, had a proper permit tag affixed. The fact remains that they knew it did not, (they applied for a replacement in July, 1984), but did not follow up to insure that the replacement was issued and affixed to the new sign.

   
   

9. When the "take down" notice for the sign covered by permit 3515.10 was issued by DOT, that permit was canceled and Respondent has not been billed for it since then in the annual bill DOT sends out. Once the sign is removed, and a certificate to that effect is received from the field, the permit number for that sign is removed from the inventory of the local district and sent to DOT headquarters with the certificate of removal. This effectively cancels the permit and it is no longer billed to the permittee. Even though this was done here, Respondent re-erected the sign.

   
   

10. Mr. Harper admits that under the law which existed prior to July, 1984, DOT may not have had the authority to extinguish Respondent's permit. If Respondent had voluntarily taken the sign down at that time, while the permit was valid, and had continued to pay the yearly renewal fee for the permit, it would still be good even if the sign were not replaced. Also, if the permit was valid when the sign was taken down, and was renewed each year, a new sign could still be erected legally using that permit. Any permit issued prior to July, 1984 which was legal and conforming, remained legal and conforming if renewed.

    
    

11. Respondent has not been billed for permit 3515.10 since 1984. Respondent showed that it applied for replacement for a lost tag on July 31, 1984, forwarding a check for the $3.00 replacement fee. Respondent could not show, however, that a replacement was issued at that time or that it had paid renewal fees in 1985 or 1986. The evidence offered by Respondent to establish this was rejected as incompetent. It is found, therefore, that Respondent has not renewed permit number 3515.10 and did not affix a permit tag to the reconstructed offending sign subsequent to July, 1984.

    
    

12. Though the citation issued by Ms. Kinchen on October 4, 1984 show improper citations of statute and rule in some instances, the lists of violations are properly described in words and Respondent could not have been misled thereby.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. Under the provisions of Chapter 479, Florida Statutes, the Department of Transportation is given the authority to regulate outdoor advertising signs and to issue permits for such signs within the state. Specifically, at Section 479.08, the statute provides:

    
    

    The department may after 30 days notice in

    writing to the permittee, revoke any permit in any case where it shall appear to the department the application for the permits contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter.

    
    

    Further, Section 479.07(4) provides that for each permit issued, the Department of Transportation will issue to the applicant a permanent metal tag which shall bear a sequential number which will indicate the size of the advertisement and which will be attached by the permittee to the sign covered by that permit in such a manner as to be plainly visible. The details of attachment and location are outlined in the statute. What is important is that by statute, this tag is to be kept on the sign until it is returned to the department for cancellation.

    
    

15. Under further terms of this provision, any construction, erection, or use or display of an advertising structure which is required to display the permit tag without it being attached thereto is a violation of the statute and subjects the offending sign to removal by the department.

    
    

16. Section 479.07(9)(a)2 of the statute provides that a permit will not be granted for any sign not already permitted as of the date of the act which is not at least:

    
    

    One thousand feet from any other permitted sign on the same side of the highway. . . .

    
    

    This provision of the statute became effective on July 1, 1984.

    
    

17. The evidence here clearly shows that Respondent re erected a sign on the northbound side of U.S. Highway 1 and 8th Street in Indian River County on or about September 8, 1984, after the effective date of the statute requiring a permit for such a sign. The previously existing permitted sign had been taken down at the direction of the Department because though a permit had been issued for it, the tag was not affixed to the sign as required and it was, therefore, in violation of the statute. The new sign, which was within 1,000 feet of another permitted sign on the same side of the highway, could not lawfully be permitted or erected without a permit. It is, therefore, standing in violation of the statute and must be removed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Department of Transportation issue a Final Order in this case directing that the sign in question herein be removed.

DONE and ORDERED this 11th day of December, 1986, at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4171T

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Incorporated in Findings of Fact 1, 3, and 4.

2. Incorporated in Findings of Fact 4 and 5.

3. Incorporated in Findings of Fact 8-10.

Rulings on Proposed Findings of Fact

COPIES FURNISHED:

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Docket for Case No: 84-004171

Orders for Case No: 84-004171