STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NOS. 86-1043T

) 86-1707T

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

) HEADRICK OUTDOOR ADVERTISING, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on March 24, 1987, in Chipley, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Barbara W. Palmer, Attorney

Beggs and Lane

700 Blount Building Post Office Box 12950

Pensacola, Florida 32576

For Respondent: Vernon L. Whittier, Jr., Attorney

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32201

For Intervenor: William G. Warner, Attorney

565 Harrison Avenue Post Office Drawer 235

Panama City, Florida 32402 ISSUES

The issue is whether Lamar Advertising Company is entitled to permits for outdoor advertising for a location on the south side of U.S. 98, 120 feet west of Hickory Avenue in Bay County, Florida, for signs facing east and west.

Lamar Advertising Company (Lamar) presented the testimony of Julius Blake, Jr., Milford C. Truette, and James K. Baughman, Sr., together with four exhibits admitted in evidence. Department of Transportation (DOT) had three exhibits admitted into evidence. Headrick Outdoor Advertising (Headrick) presented no

witnesses and had no exhibits admitted into evidence. A transcript was filed on April 3, 1987. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of facts and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Lamar submitted a permit application for a location 120 feet west of Hickory Avenue, in Bay County, Florida, on the south side of U.S. 98, on November 25, 1985, and resubmitted that application on December 16, 1985. On January 8, 1986, DOT denied the application solely because of spacing conflicts with permit Nos. AD089-10 and AD090-10 held by Headrick. That denial was made in a Memorandum of Returned Application. The Memorandum of Returned Application contained the following statement:

   
   

   PLEASE BE ADVISED THAT IF YOU BELIEVE YOUR APPLICATION HAS BEEN INAPPROPRIATELY DENIED, YOU HAVE THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING UNDER SECTION 120.57, FLORIDA STATUTES, WITHIN THIRTY (30) DAYS OF THE DATE OF THIS NOTICE. THE SUBMITTED HEARING REQUEST SHALL GIVE A BRIEF STATEMENT SETTING FORTH THE REASON(S) FOR REVIEW. SUCH HEARING REQUEST MUST BE FURNISHED TO:

   
   

   THE CLERK OF AGENCY PROCEEDINGS FLORIDA DEPARTMENT OF TRANSPORTATION, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA 32301

   
   

   Lamar requested an administrative hearing by letter dated March 13, 1986.

   
   

2. On March 12, 1986, Headrick applied for a permit for a sign to be located on the south side of U.S. 98, 285 east of Hickory Avenue, in Bay County, Florida. By letter dated March 31, 1986, the Headrick application was returned unapproved because of a pending administrative hearing requested by Lamar concerning the location of permits AD089-10 and AD090-10. This letter did not advise Headrick of its rights to an administrative hearing. Headrick did not request a hearing for these applications.

   
   

3. Lamar applied for a permit for a sign location on the south side of

   U.S. 98, 120 feet west of Hickory Avenue, in Bay County, Florida, again on March 13, 1986. A Memorandum of Returned Application, dated April 3, 1986, was sent to Lamar, denying the application because of a spacing conflict with Permits AD089-10 and AD090-10 located 100 feet westerly of Hickory Avenue on the eastbound (south) side of U.S. 98. This Memorandum contained the same language as that set forth above and, by letter dated April 18, 1986, Lamar requested an administrative hearing. This request resulted in Case No. 86-1707T herein.

   
   

4. Another case, with DOT as Petitioner, Headrick as Respondent, and Lamar as Intervenor, Case No. 85-4165T, resulted in a Final Order dated September 2, 1986, revoking Permits AD089-10 and AD090-10. The Final Order was based upon findings that Headrick was advised on August 9, 1985, by the property owner, that the property was being sold and that Headrick had thirty (30) days to remove its sign. Further, by letter dated October 17, 1985, the property owner advised DOT that Headrick no longer had a valid lease for the signs and the signs had been removed.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

6. Section 479.07(9)(a), Florida Statutes, (1985), provides in pertinent part:

   
   

   A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

   
   

   2. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

   
   

7. Rule 14-10.004, Florida Administrative Code, provides in pertinent part as relevant hereto:

   
   

   (4) Where two applications from different persons conflict with each other, so that only one of the applications may be granted, the first application received by the district office will be the first considered for approval. The second application shall remain pending until resolution of the first application. The second applicant shall be advised in writing of the first application and that his application will remain pending until the first application is acted upon.

   * * *

   If the first application considered is granted, the second application shall be denied. If the first application considered is denied, the second application shall be considered for approval.

   
   

   (8) If the Department intends to deny an application for a permit or to revoke a permit, the Department shall provide, by certified mail, return receipt requested, or by personal delivery, with receipt, notice of the facts which warrant such action.

   
   

   (a) The written notice shall contain:

   
   

   1. The particular facts or basis for the Department's action and the statute or rule relied upon.

      
      

   2. A statement that the applicant or permittee has the right to an administrative hearing pursuant to Section 120.57, F.S.

   3. A statement that the Department's actions shall become conclusive and final agency action if no request for a hearing is filed within 30 days of the receipt of the notice of the Department's intended action.

   
   

8. Lamar's permit application for the location in question was initially denied by Memorandum of Returned Application dated January 8, 1986, because of a spacing conflict with Permits. AD089 and AD090 held by Headrick. Lamar requested a hearing on that denial by letter dated March 13, 1986. The parties herein have argued that Lamar's request for a hearing on the January 8, 1986, denial was untimely and it should be denied on that basis. Lamar argues that the language contained in the Memorandum of Returned Application failed to meet the requirements of Rule 14-10.004(8)(a) because it did not state that the Department's action shall become conclusive and final agency action if no request for hearing is filed within thirty days of receipt of the notice of the Department's intended action. The record is devoid of any issue being raised regarding timeliness prior to the formal hearing. Clearly, DOT did not move to dismiss Lamar's request for hearing as untimely, did not treat its denial as final and conclusive, and did not deny Lamar's request for a hearing because it was untimely filed. It is concluded that the notice in the Memorandum of Returned Application is inconsistent with Rule 14-10.004(8)(a) in that it does not advise the applicant that the Department's actions shall become conclusive and final agency action if a timely request for hearing is not received. This conclusion is bolstered by the fact that even the Department did not treat its denial dated January 8, 1986, as conclusive and final agency action, and instead granted Lamar the right to an administrative hearing even though its request was not filed within thirty days of receipt of the Department's Memorandum of Returned Application. Accordingly, Lamar's entitlement to the permits for which it applied on December 16, 1985, is still pending and at issue in these proceeding.

   
   

9. Since Lamar's December 16, 1985, application was denied based on spacing conflicts with Headrick's Permits AD089 and AD090, it must be determined whether those permits were valid. In Lamar Advertising Company v. Department of Transportation, 490 So.2d 1315 (Fla. 1st DCA 1986), the court reviewed a situation almost identical to that in this case. There, Headrick failed to cancel a permit upon the landowner's termination of the underlying lease. DOT moved to revoke Headrick's permits but allowed the existence of the permits prior to revocation to operate to encumber the land upon which Lamar was seeking new permits. DOT denied Lamar's permit application because it determined that Headrick's permit had continued validity and was outstanding beyond the lease termination date. DOT viewed Headrick's permit, although invalid by law, as a continuing burden on the land, restricting alienation and preventing the owner from obtaining a valid permit until Headrick's permit was revoked by the Department or cancelled by Headrick. In that case, the First District Court of Appeal reversed, finding that the statute requires the property owner's permission as a prerequisite to the issuance of a permit and to the maintenance of the sign. The Court stated:

   
   

   Once a permit becomes invalid under Section 479.13, it no longer operates to encumber the land and cannot form the basis for denial of a valid permit. Thus, the permit issued to Headrick became invalid on June 30, 1984,

   the date the lease to National, Headrick's assignor, was terminated. Regardless of the

   time frame within which the Department's cancellation proceedings are implemented or accomplished, the National/Headrick permit ceased to exist as an impediment due to Section 479.13.

   
   

   Applying the standards established by the First District Court of Appeal in the above-cited case, it is clear from the evidence herein that Headrick's permits AD089 and AD090 became invalid on August 9, 1985, when the property owner terminated the underlying lease. DOT was aware that the underlying lease had been terminated on October 17, 1985, when the property owner advised DOT that Headrick no longer had a valid lease for the site and that the sign had been removed. Despite this knowledge, and despite the fact that Headrick's signs no longer existed, DOT denied Lamar's application on January 8, 1986, because Lamar's site did not meet the spacing requirements with Headrick's permits AD089 and AD090. This denial was clearly incorrect because Lamar's permits had become invalid upon termination of the lease and because Headrick's sign in fact no longer existed. Accordingly, Lamar's application dated December 16, 1985, should be granted.

   
   

10. Headrick's application dated March 12, 1986, sought to transfer permits AD089 and AD090 to another location. Since those permits were invalid, they could not be transferred and Headrick's application was correctly denied. Further, Headrick's entitlement to those permits is not properly a part of this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the December 16, 1985, application filed by Lamar

Advertising company for a location on the south side of U.S 98, 120 feet west of Hickory Avenue, in Bay County, Florida, be GRANTED.

DONE AND ENTERED this 5th day of May, 1987, in Tallahassee Florida.

DIANE K. KIESLING

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 5th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1043T

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 in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Lamar Advertising Company

1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(2); 6(1); 7(3); 8(3); 9(1 and 3); and 10(4).

2. Proposed finding of fact 11 is rejected as unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation

1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4).

Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Headricks Outdoor Advertising

1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(2); 3(2); 4(1); 5(1); and 6(4).

COPIES FURNISHED:

Barbara W. Palmer, Esquire Beggs & Lane

700 Blount Building Post Office Box 12950

Pensacola, Florida 32576

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

605 Suwannee Street

Tallahassee, Florida 32301

William G. Warner, Esquire

565 Harrison Avenue Post Office Drawer 335

Panama City, Florida 32402

Kaye N. Henderson, Secretary Haydon Burns Building

605 Suwanne Street

Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

LAMAR ADVERTISING COMPANY,

Petitioner,

vs. CASE NOS. 86-1043T

86-1707T

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

HEADRICK OUTDOOR ADVERTISING,

Intervenor.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached. Respondent, DEPARTMENT OF TRANSPORTATION (Department) has filed Exceptions to the Recommended Order which are considered and addressed below.

The Findings of Fact in the Recommended Order are considered correct and are incorporated as part of this Final Order. The Conclusions of Law are rejected.

CONCLUSIONS OF LAW

The Hearing Officer's conclusion that Lamar's request for an administrative hearing was timely made because the Department's notice failed to state that the Department's action shall become conclusive and final agency action if no request for hearing is filed within thirty days is erroneous. Petitioner's due process rights were not violated by the omission of such notification, as argued in Respondent's Exception number 5.

To provide a clear point of entry into the administrative process, notice of agency action must inform the affected party of his right to request a hearing, and the time limits for doing so. City of St. Cloud v. Department of Environmental Regulation. 490 So.2d 1356 (Fla. 5th DCA 1986). Manasota - 88, Inc. v. State Department of Environmental Regulation. 417 So.2d 846 (Fla. 1st DCA 1982). The notice provided to Petitioner by the Department in its denial letter of January 8, 1986, was legally sufficient for the purpose of notification of final agency action. Consequently, Petitioner's request for a hearing dated March 13, 1986 was untimely.

The Department's failure to raise the timeliness issue prior to the final hearing may not be construed as a waiver. Whether a Petitioner timely filed its request for an administrative hearing is akin to subject matter jurisdiction and may be raised at any time.

Because Petitioner failed to timely request an administrative hearing, the Department's denial of Petitioner's December 16, 1985 application became final on February 7, 1986, thirty days after the date of the notice of denial. The issue in the present case thus becomes whether the Department's denial of Petitioner's March 13, 1986 applications was proper. Since the Hearing Officer, consistent with the erroneous Conclusion of Law, failed to address this issue in the Recommended Order, this cause should be remanded for the purpose of determining whether the Department's denial of Petitioner's March 13, 1986 application was proper. See Miller v. Department of Environmental Regulation.

504 So.2d 1325 (Fla. 1st DCA 1987).

Respondent's Exceptions 1 through 4 are rejected as moot based upon the above conclusions.

THEREFORE IT IS ORDERED that Lamar advertising Company's March 13, 1986 request for an administrative hearing is dismissed as untimely and the denial of the permit application dated December 16, 1985 is affirmed.

IT IS FURTHER ORDERED that the instant cause be remanded to the Hearing Officer for the purpose of determining whether the Department's denial of Petitioner's March 13, 1986 application was proper.

DONE AND ORDERED this 3rd day of August, 1987.

AYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of appellate Procedure 9.030(b)(11(c) and 9.110. To initiate an appeal, a Notice of appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of appeal within 30 days of the filing of this Final Order with the Department's Clerk of agency Proceedings. The Notice of Appeal filed with the District Court of appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

COPIES FURNISHED:

DIANE K. KIESLlNG, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

VERNON L. WHITTIER, JR., ESQUIRE

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

BARBARA W. PALMER, ESQUIRE BEGGS & LANE

700 Blount Building Post Office Box 12950

Pensacola, Florida 32576

WILLIAM G. WARNER, ESQUIRE

565 Harrison Avenue Post Office Box 335

Panama City, Florida 32402

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

SUPPLEMENTAL RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1043T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

and )

) HEADRICK OUTDOOR ADVERTISING, )

)

Intervenor. )

)

SUPPLEMENTAL RECOMMENDED ORDER

By Order of Remand dated June 9, 1988, the Department of Transportation (DOT) remanded this matter to the Division of Administrative Hearings for a determination of whether DOT's denial of the March 13, 1986, application of Lamar Advertising Company (Lamar) was proper. The remand is hereby accepted and this Supplemental Recommended Order is entered to supplement the Recommended Order previously entered on May 5, 1987. All the Findings of Fact of that Recommended Order were adopted in the Final Order of DOT dated August 3, 1987.

No additional Findings of Fact are necessary for the determination to be made on Lamar's March 13, 1986, application.

SUPPLEMENTAL CONCLUSIONS OF LAW

Since Lamar's March 13, 1986, application was denied based on spacing conflicts with Headrick's Permits AD089 and AD090, it must be determined whether those permits were valid. In Lamar Advertising Company v. Department of Transportation, 490 So.2d 1315 (Fla. 1st DCA 1986), the court reviewed a situation almost identical to that in this case. There, Headrick failed to cancel a permit upon the landowner's termination of the underlying lease. DOT moved to revoke Headrick's permits but allowed the existence of the permits prior to revocation to operate to encumber the land upon which Lamar was seeking new permits. DOT denied Lamar's permit application because it determined that Headrick's permit had continued validity and was outstanding beyond the lease termination date. DOT viewed Headrick's permit, although invalid by law, as a continuing burden on the land, restricting alienation and preventing the owner from obtaining a valid permit until Headrick's permit was revoked by the Department or cancel led by Headrick. In that case, the First District Court of Appeal reversed, finding that the statute requires the property owner's permission as a prerequisite to the issuance of a permit and to the maintenance of the sign. The Court stated:

Once a permit becomes invalid under Section 479.13, it no longer operates to encumber the land and cannot form the basis for denial of a valid permit. Thus, the permit issued to Headrick became invalid on June 30, 1984, the date the lease to National, Headrick's assignor, was terminated. Regardless of the time frame within which the Department's cancellation proceedings are implemented or accomplished, the National/Headrick permit ceased to exist as an impediment due to Section 479.13.

Applying the standards established by the First District Court of Appeal in the above-cited case, it is clear from the evidence herein that Headrick's permits AD089 and AD090 became invalid on August 9, 1985, when the property owner terminated the underlying lease. DOT was aware that the underlying lease had been terminated on October 17, 1985, when the property owner advised DOT that Headrick no longer had a valid lease for the site and that the sign had been removed. Despite this knowledge, and despite the fact that Headrick's signs no longer existed, DOT denied Lamar's application on April 3, 1986, because Lamar's site did not meet the spacing requirements with Headrick's permits AD089 and AD090. This denial was clearly incorrect because Lamar's permits had become invalid upon termination of the lease and because Headrick's sign in fact no longer existed. Accordingly, Lamar's application dated March 13, 1986, should be granted.

Headrick's application dated March 12, 1986, sought to transfer permits AD089 and AD09O to another location. Since those permits were invalid, they could not be transferred and Headrick's application was correctly denied.

Further, Headrick's entitlement to those permits is not properly a part of this proceeding.

RECOMMENDATION

Based upon the previously adopted Findings of Fact and the foregoing Supplemental Conclusions of Law, it is

RECOMMENDED that the March 13, 1986, application filed by Lamar Advertising Company for a location on the south side of U.S. 98, 120 feet west of Hickory Avenue, in Bay County, Florida, be GRANTED.

DONE and ENTERED this 13th day of July, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 13th day of July, 1988.

COPIES FURNISHED:

Kaye N. Henderson Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Vernon Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Barbara W. Palmer, Esquire Beggs & Lane

Post Office Box 12950 Pensacola, Florida 32576

William G. Warner, Esquire Post Office Box 335

Panama City, Florida 32402

Docket for Case No: 86-001043

Orders for Case No: 86-001043