STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EAGLE OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1125T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above style case was held on June 21, 1989, in West Palm Beach, Florida, before Jane C. Hayman, Hearing Officer of the Division of Administrative Hearings

APPEARANCES

For Petitioner: Charles C. Papy, III, Esquire

201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether the subject application for a sign permit should be approved.

PRELIMINARY STATEMENT

By memorandum of returned application postmarked February 1, 1989, Respondent notified Petitioner that on January 5, 1989, Respondent had denied Petitioner's application for an outdoor sign. As grounds for the denial, said memorandum of returned application stated that the proposed application contained incorrect or incomplete information in violation of Section 479.07(3)(b), Florida Statutes; that the proposed sign site did not meet required spacing requirements since the requested sign site conflicted with an existing site of a permitted sign in violation of Section 479.07(9)(a)1 and 2, Florida Statutes; that the application did not meet the "harmony of regulations" provision of Rule 14-10.004(i), Florida Administrative Code; and that the application did not contain a sketch of the proposed sign site in violation of Rule 14-10.004(i), Florida Administrative Code.

By letter dated February 16, 1989, Petitioner requested an administrative hearing to contest the denial of its application, and by letter dated March 1, 1989, Respondent requested that the Division of Administrative Hearings appoint a Hearing Officer to conduct a formal administrative hearing pursuant to Chapter 120, Florida Statutes.

Petitioner presented the testimony of three witnesses and offered eleven exhibits which were admitted into evidence. Respondent presented no witnesses and offered no exhibits.

A transcript of the proceeding was ordered, and, by waiver of the parties, proposed findings of fact and conclusions of law were due on or before August 11, 1989. Both parties submitted proposed findings of fact. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Eagle Outdoor Advertising, Petitioner, was the applicant for a sign permit to be located on Interstate 595, seven- tenths of a mile South of Interstate 95 in Broward County, Florida. Edward A. Bolter is President of Petitioner and, in that capacity, has represented Petitioner throughout the application process.

   
   

2. On December 7, 1988, Mr. Bolter met with Ms. Delores Kinsler, Right-of- Way Specialist for the Department of Transportation, Respondent, and filed an application for an Outdoor Advertising Sign Permit with Respondent's district office in Fort Lauderdale, Florida (Eagle Application). During the meeting Mr. Bolter and Ms. Kinsler visited the site of the proposed sign to measure the distances required for the Eagle Application and to make Respondent aware of the location. Then, in the presence of Ms. Kinsler, Mr. Bolter completed the Eagle Application, and Ms. Kinsler notarized it.

   
   

3. On January 5, 1989, Ms. Kinsler denied the Eagle Application and noted her decision on the Eagle Application form. It was Respondent's procedure that after the notation of action on an application form by a Right-of-Way Specialist, the form was reviewed by a District Outdoor Advertising Administrator who completed a memorandum of returned application to inform an applicant of a denial decision on an application. In the instant case, however, due to an administrative reorganization, the memorandum of returned application (memorandum) was not mailed until February 1, 1989, and not received by Mr. Bolter until February 3 or 4, 1989.

   
   

4. The District Outdoor Advertising Administrator who reviewed the Eagle Application application was Mr. Fred Harper. Although Mr. Harper did not execute the Memorandum on January 5, 1989, and does not remember when he did execute it, he postdated the memorandum to January 5, 1989. Four reasons for denial were stated on the memorandum: the application contained incorrect or incomplete information; the application did not meet the "harmony of regulations" requirement; the application did not contain a location sketch of the sign site; and the proposed sign site did not meet the required spacing requirement since the proposed sign site conflicted with the site of an existing permitted sign.

   
   

5. Consistent with existing law, if an application contain knowingly false information, it is Respondent's policy that, an applicant has thirty days from the receipt of notice of an intended denial, here, February 3 or 4, 1989, to

   cure the defect in his application. Included on the Eagle Application was a representation that the proposed sign was to be located in a "city limits." Mr. Bolter knew at the time he completed the Eagle Application that the property on which the sign was to be located was in an unincorporated area of Broward County. Yet, he was also aware that the owner of the property intended to offer the subject property to be voluntarily annexed by the City of Dania, Florida.

   Mr. Bolter relayed this information to Ms. Kinsler on the day of the Eagle Application was filed.

   
   

6. However, even without knowledge of the action on the Eagle Application, Mr. Bolter, on January 11, 1989, hand-delivered a letter to Mr. Harper from the City of Dania representing that the City would comply with any permit issued to Petitioner as if the City had issued it and that the property was annexed into the City on January 10, 1989. The letter was similar to other letters which Mr. Harper had received on prior permit applications in satisfaction of the "harmony of regulations" requirement. In fact, Mr. Harper agreed that the letter received on January 11, 1989, would meet the "harmony of regulations" requirement.

   
   

7. Further, consistent with existing law, it is Respondent's policy that if an application contains errors or omissions, Respondent will notify the applicant of such errors or omissions within thirty days from the receipt of the application. If Respondent fails to notify the applicant of an error or omission in a timely manner, such error or omission shall not form the basis of the denial. Here, Petitioner omitted a location sketch from his application; however, Respondent failed to notify Petitioner of the omission until February 1, 1989. The untimely notification occurred almost two months after the receipt of the application.

   
   

8. The sign conflict related to a sign owned by Golden Communications, Inc., with permit number AX870-35 (Golden's Application). Permit number AX870-

   35 did not exist on January 5, 1989, when the Eagle Application was denied. In fact, Golden's Application for permit number AX870-35 was not received by Respondent until January 5, 1989. Golden's Application was approved on January 6, 1989.

   
   

9. The Eagle Application was in conformity with the "harmony of regulations requirement" even before receipt of the memorandum, and the untimely notification of the reasons for denial prevents Respondent from denying the Eagle Application on the basis of Petitioner's omission of a location sketch. Further, the allegedly conflicting sign did not exist on the date of denial and could not form the basis of the denial. Accordingly, Petitioner's application should be approved.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 479.07(3)(b), Florida Statutes, provides, with exceptions not pertinent here, that:

    
    

    (b) As part of the application, the applicant or his authorized representative must certify in a notarized signed statement that all information provided in the application is

    true and correct and that, pursuant to subsection (2), he has obtained the written permission of the owner or other person in lawful possession of the site designated as the location of the sign in the permit application. Every permit application must be accompanied by the appropriate permit fee;

    a signed statement by the owner or other person in lawful control of the site on which the

    sign is located or will be erected, authorizing the placement of the sign on that site; and, where local governmental regulation of signs exists, a statement from the appropriate local governmental official indicating that the sign complies with all local governmental requirements and that the agency or unit of local government will issue a permit to that applicant upon approval of the state permit application by the department.

12. Section 479.07(9)(a), Florida Statutes, provides in part: (9)(a) 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:

    1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on a interstate highway.

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

       
       

13. Section 479.08, Florida Statutes, provides:

    
    

    479.08 Denial or revocation of permit.--The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it

    determines 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, within 30 days after the receipt of notice by the department, corrects such false or misleading information and complies with the provisions of this chapter. Any person aggrieved by any action of the department in denying or revoking a permit under this chapter may, within 30 days after receipt of the notice, apply to the department for an administrative hearing pursuant to chapter 120.

14. Rule 14-10.004(2)(i) and (j), Florida Administrative Code provides:

    
    

    1. The application shall be notarized and shall contain:

       * * *

       1. Where there are local government sign requirements, a statement from the appropriate governmental official indicating that the sign complies with all local government requirements and can be issued a local permit.

    (j) A location sketch of the sign permit.

    
    

15. Rule 14-7.001, Florida Administrative Code, provides that the licensing and permitting action of Respondent shall be governed by Section 120.60, Florida Statutes. Section 120.60(2) provides, in pertinent part:

    
    

    (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period.

    
    

16. The proof demonstrated, by a preponderance of the evidence, that the Petitioner had met each of the requirements for approval of this sign application within the statutory period allowed for completion of the application except the omission of the location sketch. The untimely notification by Respondent that the location sketch was omitted from the application prevent that omission from becoming a basis for denial. Accordingly, the subject permit should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order

providing that the subject sign application be approved.

DONE and ENTERED this 25th day of September, 1989 in Tallahassee, Florida.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-11257T

Petitioner's proposed findings of fact are addressed as follow

1. Subordinate to the result reached.

2. Subordinate to the result reached.

3. Addressed in paragraph 2.

4. Addressed in paragraph 3.

5. Addressed in paragraphs 4.

6. Addressed, in part, in paragraph 8; in part, irrelevant.

7. Addressed in paragraph 7.

8. In part, subordinate to the result reached; in part, addressed in paragraph 6.

9. Addressed in paragraph 6.

10. Subordinate to result reached.

11. Addressed in paragraph 3.

12. Addressed in paragraph 4.

13. Addressed in paragraphs 6.

Respondent's proposed findings of fact are addressed as follow

1. Irrelevant.

2. Irrelevant.

3. In part, addressed in paragraph 1; in part, subordinate to the result reached.

4. Irrelevant.

5. In part, addressed in paragraph 2; in part, irrelevant.

6. Subordinate to result reached.

7. Subordinate to result reached.

8. Addressed in paragraphs 2 and 3.

9. Addressed, in part, in paragraphs 3 and 4.

10. Addressed in paragraphs 2 and 4.

11. Irrelevant.

12. Irrelevant.

13. Addressed in paragraph 8.

14. Subordinate to the result reached.

15. Addressed in paragraphs 4 and 5.

16. Not supported by competent and substantial evidence.

17. Not supported by competent and substantial evidence.

18. Not supported by competent and substantial evidence.

COPIES FURNISHED:

Charles C. Papy, III, Esquire

201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Ben G. Watts, P.E., Interim Secretary

Florida Department of Transportation Haydon Burns Building,

605 Suwannee Street

Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, MS 58

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-001125

Orders for Case No: 89-001125