STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GATOR OUTDOOR ADVERTISING, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-3649T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5442T

) PETERSON OUTDOOR ADVERTISING ) CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled consolidated cases was held on March 4, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The representatives of the parties were as follows: For Gator Outdoor

Advertising, Inc.: Kenneth Vickers, Esquire

437 East Monroe Street, Station 1 Jacksonville, Florida 32202

For Peterson Outdoor

Advertising Corp.: John Liebman, Esquire

Post Office Box 1171 Orlando, Florida 32802

For Department of

Transportation: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

BACKGROUND

On July 10, 1987, Gator Outdoor Advertising, Inc., applied to the Department of Transportation for sign permits on the east side of U.S. 441, 1410 feet north of Landstreet. On July 16, 1987, the Department of Transportation notified Gator Outdoor Advertising, Inc. that its application had been denied because the sign would not meet current spacing requirements as a result of two sign permits held by Eagle Outdoor Advertising, Inc. By letter dated August 4, 1987, Gator Outdoor Advertising, Inc., requested a formal hearing on the denial. Case No. 87-3649T was thereby commenced.

On November 5, 1987, the Department of Transportation notified Peterson Outdoor Advertising Corp. that the department intended to declare invalid the above-described two sign permits, which had been assigned to Peterson Outdoor Advertising Corp., because of the loss of permission of the property owner to maintain the sign. The letter gave Peterson Outdoor Advertising Corp. thirty days within which to request a hearing. By letter dated November 13, 1987, Peterson Outdoor Advertising Corp. requested a formal hearing. Case No. 87- 5442T was thereby commenced.

By Order of Consolidation dated January 4, 1988, the two cases were consolidated for final hearing. At the hearing, Gator Outdoor Advertising, Inc. presented two witnesses and offered into evidence four exhibits. Peterson Outdoor Advertising Corp. presented no witnesses or exhibits. The Department of Transportation presented one witness and four exhibits. All exhibits were admitted into evidence, although Department of Transportation Exhibit Number Four was admitted with the reservation that its admission did not represent a finding that it had been signed by its purported author.

Each party filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. The Department of Transportation ("DOT") originally issued sign permits in 1964 for the location authorized by Permits 3966-2 and 3967-2, and these permits have been renewed continuously thereafter. The location authorized by Permits 3966-2 and 3967-2 is on the east side of U.S. 441.

   
   

2. Effective October 30, 1987, Eagle Outdoor Advertising, Inc., which has owned Permits 3966-2 and 3967-2 since 1968 or earlier, transferred them to Peterson Outdoor Advertising Corp. ("Peterson").

   
   

3. On July 10, 1987, Gator Outdoor Advertising, Inc. ("Gator") applied to DOT for sign permits. The location for which Gator sought sign permits is on the same side of U.S. 441, approximately 348 feet from the location authorized by Permits 3966-2 and 3967-2.

   
   

4. On July 16, 1987, DOT rejected Gator's application solely because the proposed sign location did not meet applicable spacing requirements relative to the sign authorized by Permits 3966-2 and 3967-2.

   
   

5. In 1984, the owner withdrew his permission for maintaining the sign authorized by Permits 3966-2 and 3967-2. There has been no sign lease or owner permission for a sign at this location since 1984.

6. As of the date of the final hearing, Peterson had not obtained the owner's permission to maintain a sign. Representatives of the property owner and a representative of Peterson have discussed the possibility of owner permission, but it had not been unequivocally granted.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. DOT has jurisdiction to regulate the spacing of signs along the federal-aid primary highway system. Section 479.02(2), Florida Statutes. Subject to certain exceptions not relevant to this case, no person may erect a sign along a federal-aid primary highway without first obtaining a permit from DOT. Section 479.07(1), Florida Statutes.

   
   

9. The subject portion of U.S. 441 is a federal-aid primary highway. Permitted signs on such a highway may not be spaced less than 1000 feet apart. Section 479.07(9)(a)2, Florida Statutes.

   
   

10. "A permittee shall at all times maintain the permission of the owner .

    . . to have and maintain a sign at such site." Section 479.07(7), Florida Statutes.

    
    

11. In Lamar Advertising Company v. Department of Transportation, 490 So.2d 1315 (Fla. 1st DCA 1986), the court, construing the substantially similar predecessor to Section 479.07(7), held that the Department of Transportation was required to recognize the invalidity of a prior sign permit when the permittee no longer had the owner's permission to maintain the sign, even though the Department's procedures for canceling permits had not been complied with or completed.

    
    

12. In the present case, Peterson has no agreement with the property owner for the maintenance of a sign at the location authorized by Permits 3966-2 and 3967-2. These permits are no longer valid. Thus, the sign sought by Gator no longer violates applicable spacing requirements.

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered granting Gator a permit to maintain a sign on the east side of U.S. 441, 1410 feet north of Landstreet, and terminating Permits 3966-2 and 3967-2.

ENTERED this 21st day of March, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 21st day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOs. 87-3649T & 87-5442T

Treatment Accorded Peterson's Proposed Findings 1-3. Adopted.

1. First sentence adopted; second and third sentences rejected as unnecessary.

2. Rejected as legal argument and unnecessary.

3. Adopted in substance.

4. Rejected as unsupported by the evidence. The letter of February 3, 1988, from Mr. King to Mr. Wright states that the property owner "is granting permission to Peterson. . .to hold the tags on this property."

   This statement is technically incorrect. DOT grants permission to hold tags. A property owner grants permission to someone to use his property to erect a sign.

   
   

   As late as February 23, 1988, no agreement between the property owner and Peterson existed. Edward Herington, a vice-president of Peterson, testified during his deposition taken on that day that the only written evidence of such an agreement was the above-described letter of February 3, 1988. T. 13. He described the earlier oral agreement between him and representatives of King, which was memorialized by the February 3rd letter, in the following words: "Just that we would be looking the situation over once [King's business was] open and had the shakedown of their grand opening to see if they wanted to have a display there or not." T. 14.

   
   

   Peterson has never paid any rent for the site. T. 14. As Mr. Herington candidly admitted, "We don't have an agreement other than we were looking at the situation, once [King] got opened, they just opened a few months ago, to see whether there would be a place that would be logical to place a sign. T. 15. He added, ". . . we have not finalized our agreement with Mr. King on the placement of a sign on his property." T. 16.

   
   

   In summary, there is no agreement between King and Peterson that permits Peterson to place a sign on Ring's property.

   
   

5. Rejected as unsupported by the evidence, unnecessary, and legal argument.

Treatment Accorded Gator's Proposed Findings 1-3,5-6. Adopted.

4,8-10. Adopted in substance.

7. Rejected as unnecessary in view of the testimony of Edward Herington.

11-12. Rejected as unnecessary. 13-15. Adopted in substance.

16,19. Adopted.

17-18,20. Rejected as unnecessary. 21,23,25. Adopted.

22. Rejected as unnecessary.

24. Rejected as unsupported.

Treatment Accorded DOT's Proposed Findings

1-3. Adopted in substance, except the last sentence of paragraph 3 is rejected as a legal conclusion and to the extent it is factual, unsupported by the evidence. As set forth in greater detail above, the deposition of Edward Herington, a vice president of Peterson, clearly reveals the absence of owner permission.

COPIES FURNISHED:

Kenneth Vickers, Esquire

437 East Monroe Street Suite 1

Jacksonville, Florida 32202

Rivers Buford, Esquire

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Linda F. Wells, Esquire Post Office Box 1171 Orlando, Florida 32802

Kaye N. Henderson Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450 Atten: Eleanor F. Turner, MS 58

Thomas H. Bateman, III General Counsel

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-003649

Orders for Case No: 87-003649