STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD M. RAY d/b/a RAY )

OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3736F

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

This matter came on for hearing in Ocala, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 1, 1990. The attached appendix addresses respondent's proposed findings of fact by number.

APPEARANCES

For Petitioner: John P. McKeever, Esquire

Pattillo & McKeever

P.O. Box 1450

Ocala, Florida 32678

For Respondent: Charles G. Gardner, Esquire

605 Suwannee Street, M.S.-58 Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

Whether respondent's initial proposal to deny petitioner's application for a permit to construct an outdoor advertising sign had a reasonable basis in law and fact at the time it occurred or was otherwise substantially justified; or, if not, whether special circumstances would make an award of costs and fees unjust?

PRELIMINARY STATEMENT

This case arises in the wake of Edward M. Ray d/b/a Ray Outdoor Advertising

v. Department of Transportation, Case No. 88-6107 (DOAH; filed Dec. 9, 1988), the formal administrative proceeding petitioner initiated when respondent indicated its intention to deny petitioner's application for a permit to construct an outdoor advertising sign. Apart from records in Case No. 88-6107, see Health Quest Realty XII v. Department of Health and Rehabilitative Services,

477 So.2d 576 (Fla. 1st DCA 1985), the parties' stipulation is the basis for the following.

FINDINGS OF FACT

1. In the fall of 1988, petitioner proposed to erect a sign facing east, within 15 feet of an existing outdoor advertising sign, on the north side of State Road 200, approximately .6 miles west of the intersection of State Road

   200 and I-75. He planned to place a single face at such an angle to the existing, single-faced sign that a V configuration would result.

   
   

2. Another outdoor advertising company held a permit for the existing sign, which faced west. It stood on property belonging to a land owner who did not own the property to the east on which Ray proposed to raise its sign.

   
   

3. On November 10, 1988, the Department of Transportation issued a notice of intent to deny petitioner's application for a permit to construct the outdoor advertising sign. Petitioner reasonably incurred attorneys' fees of $787.50 and costs of $28.00 before Department of Transportation decided, well after the evidentiary hearing held April 5, 1989, to issue the permit, after all.

   
   

4. As far as the record reveals, the Department has faced only one other situation in which an applicant for a permit to construct a sign, within 15 feet of an existing sign, proposed to build on property not owned by the land owner who had leased to the company which had built the existing sign, viz., Ad-Con Outdoor Advertising v. Department of Transportation, No. 89- 0087T. In that case, too, the Department issued a permit for the second sign.

   
   

5. In an internal memorandum dated February 17, 1989, respondent's Rivers Buford wrote Dallas Gray, while the Ad-Con application was pending, the following:

   
   

   Inasmuch as the proposed sign would be

   within fifteen feet of another sign it would, by virtue of the provisions of Rule Chapter 14-10.1006(1)(b)3, be considered a part of a V-type sign and thus its two faces would be exempt from the minimum spacing requirements of Section 479.07, F.S.

   
   

   Respondent's Exhibit No. 2. The memorandum antedated the final hearing in Case No. 88-6107 by more than six weeks. Presumably, the intended rule reference was to Rule 14-10.006(1)(b)3., Florida Administrative Code.

   
   

6. At the hearing in the present case, the Department of Transportation produced two witnesses to explain why the Department initially turned down petitioner's application. In their view, the Department of Transportation should never have granted petitioner's application, in order to protect rights vested in the other company, particularly a purported, preemptive right the other company had, by virtue of the location of its existing sign, to build another sign where Ray proposed to build, even though the other company did not own and had not leased the site Ray applied to build on.

   
   

7. They asserted not only that the Department was substantially justified in turning down petitioner's application when it was originally considered, but also that any other similar application should be turned down. In their opinion, the Department erred in issuing permits in both cases in which the question has arisen. They attributed the eventual issuance of permits to petitioner and in the Ad-Con case to misinformed and misguided departmental employees.

8. As authority for this view, Mr. Kissinger, respondent's Motorist Information Services Coordinator, cited Sections 479.07(9)(a) and 479.01(14), Florida Statutes (1989) and Rule 14-10.006(b)(2) and (3), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

9. In accordance with Sections 57.111 and 120.57(1), Florida Statutes (1989), and Rule 22I-6.035, Florida Administrative Code, the Division of Administrative Hearings has jurisdiction of proceedings like these initiated pursuant to the Florida Equal Access to Justice Act. Section 57.111(4)(b)1., Florida Statutes (1989).

   
   

10. In appropriate cases, state administrative agencies must reimburse a small business party's costs and fees, up to a maximum of $15,000, unless the agency can demonstrate that "the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." Section 57.111(4)(a), Florida Statutes (1989). "The agency has the burden to show substantial justification or special circumstances." Jack J. Rudloe v. Department of Environmental Regulation No. 88-3421F (DOAH; Nov. 8, 1988) at p.

8. The essential facts are not in dispute here.

11. The only issue is whether the Department of Transportation had substantial justification for turning petitioner down initially or, if not, whether special circumstances would make an award of costs and fees unjust. The Department's witnesses maintained that the following provisions of statute and rule provide substantial justification for denying applications like petitioner's:

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 federal-aid primary highway.

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

The minimum spacing provided in this paragraph does not preclude the permitting of V-type, back- to-back, side-to-side, stacked, or double-faced signs at the permitted sign site.

Section 479.07(9)(a), Florida Statutes (1989) (Emphasis supplied.) "Sign" means any combination of structure

and message in the form of an outdoor sign,

display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display, designed intended, or used to advertise or inform, any part of the

advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department.

Section 479.01(14), Florida Statutes (1989).

1. The minimum required spacing requirements shall not preclude the permitting of V-type, back- to-back, side-to-side, stacked of double-faced signs; provided, however,

2. To be counted as one sign for spacing purposes, the facing on such signs must be physically contiguous, or connected by the same sign structure or cross-bracing, or located not more than 15 feet apart at their nearest point in the case of back-to-back or V-type signs.

Rule 14-10.006(1)(b), Florida Administrative "Code. These provisions afford no support for denying an application like the one petitioner filed in the present case. Their plain language authorizes the grant of such applications, which is apparently also the prevailing view within the Department of Transportation.

ORDERED

It is, accordingly ordered Respondent shall forthwith pay petitioner's costs and fees in the amount of eight hundred fifteen and one half dollars ($815.50).

ORDERED this 26th day of February, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990.

APPENDIX TO FINAL ORDER, CASE NO. 89-3736F

Respondent's proposed findings of fact Nos. 1, 3 and 6 have been adopted, in substance, insofar as material.

With respect to respondent's proposed findings of fact Nos. 2, 4, 5 and 8, the evidence revealed no prior denial of a permit in these circumstances.

With respect to respondent's proposed finding of fact No. 7, the memorandum was known to some personnel before the hearing.

COPIES FURNISHED:

John P. McKeever, Esquire Post Office Box 1450 Ocala, FL 32678

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. - 58 605 Suwanee Street

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, FL 32399-0458

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULE OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-003736F

Orders for Case No: 89-003736F