STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, ) CASE NOS. 90-5871T
) 90-5872T
vs. ) 90-5873T
) 90-5874T
A. W. LEE, JR., ) 90-5875T
) 90-5876T
Respondent. ) 90-5877T
)
RECOMMENDED ORDER
Following the provision of notice, a formal hearing was held in these cases in the Columbia County Courthouse, Room 300, 145 North Hernando Street, Lake City, Florida commencing at 10:30 a.m. on Thursday January 24, 1991. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building, M.S. - 58 605 Suwannee Street
Tallahassee, FL 32399-0458
For Respondent: Will J. Richardson, Esquire
Iamonia Farms Road Post Office Box 12669
Tallahassee, FL 32317-2669 STATEMENT OF THE ISSUES
The issues concern the attempt by the Petitioner to remove certain signs owned by Respondent. Grounds for removal related to the alleged offending signs fall into two categories. Reference case numbers 5871T, 5873T, and 5876T it is alleged that the signs had not been permitted as required by Section 479.07, Florida Statutes. The allegations concerning case numbers 5872T, 5874T, 5875T, and 5877T is that the signs were nonconforming signs which had been void of advertising for a period of twelve months as defined in Rule 14-10.007(2)(e), Florida Administrative Code. Thus, the latter signs were subject to removal having lost their nonconforming status. 1/
PRELIMINARY STATEMENT
Petitioner brought complaints against Respondent as described in the Statement of Issues. Those complaints were dated July 18, 1990 and received by the Respondent on July 23, 1990. Afforded the opportunity to contest the allegations by resort to a formal hearing envisioned by Section 120.57(1), Florida Statutes, Respondent made that request. The cases were referred to the Division of Administrative Hearings and the hearing took place on the date described.
In its presentation Petitioner presented the testimony of Bartley Burch, a property and outdoor advertising inspector for Petitioner and Thomas N. Brown, a district outdoor advertising administrator for Petitioner. In 5871T Petitioner's exhibits 1 and 2 and 3 were admitted. In 5872T Petitioner's exhibits 1 and 2 were admitted. Petitioner's exhibit number 3 was denied admission. In 5873T Petitioner's exhibits 1 and 2 were admitted. In 5874T Petitioner's exhibit 1 and Petitioner's exhibits 2A and B were admitted. In 5875T Petitioner's exhibit 1 and Petitioner's exhibits 2A and B were admitted.
In 5876T Petitioner's exhibit 1 and Petitioner's exhibit 2 were admitted. In 5877T Petitioner's exhibit 1 and Petitioner's exhibit 2 were admitted.
In defense, Respondent presented the testimony of Andrew Wayne Lee, the son of A. W. Lee, Jr. Andrew Wayne Lee had certain responsibilities for the operation of Respondent's business. Robert Still testified. He has been for all relevant periods the construction manager/supervisor for Respondent's outdoor advertising business. Respondent's exhibits numbers 1, 4 and 5 were admitted as evidence in all cases. In 5871T Respondent's 2A, B, and C were admitted. In 5872T Respondent's 2A, B, and C were admitted. In 5873T Respondent's 2A, B, and C and 3 were admitted. In 5874T Respondent's 2A, B, and C were admitted. In 5875T Respondent's 2A, B, and C were admitted. In 5876T Respondent's 2A, B, and C and 3 were admitted. In 5877T Respondent's 2B, A, and C were admitted.
A transcript of these proceedings was prepared. That transcript together with all tangible items of evidence has been considered in preparation of this recommended order. The transcript was filed on February 11, 1991. The parties were afforded the opportunity to file proposed recommended orders. Petitioner with concurrence of Respondent asked that time for filing proposed recommended orders be extended from the normal ten day limit. This motion was granted by order of February 15, 1991. See Rule 22I-6.031, Florida Administrative Code.
The proposed recommended orders as filed are accepted. Petitioner met the extended filing deadline of February 25, 1991. Respondent did not meet that deadline having filed his proposed recommended order on February 26, 1991, nonetheless given the explanations by counsel for Respondent concerning the reasons for late filing and there appearing to be no prejudice to the Petitioner by this late submission, the Respondent's proposed recommended order is accepted. The fact finding suggested in the proposed recommended orders was commented on in an appendix attached to the recommended order.
FINDINGS OF FACT
Chapter 479 and the rules promulgated pursuant to that chapter establish the authority for Petitioner to regulate outdoor advertising in Florida.
This regulatory function includes signs which are located on Interstate
75 in Florida. Interstate 75 is part of the interstate highway system in the United States as defined in Chapter 479, Florida Statutes.
Respondent is in the outdoor advertising business and is subject to the requirements of Chapter 479, Florida Statutes.
All signs which are in dispute in these cases are located adjacent to Interstate 75 in Alachua County, Florida and are or were owned by Respondent at all relevant times. The signs within the relevant time frame associated with this dispute could be seen from Interstate 75.
Bartley Burch is a property and outdoor advertising inspector who routinely inspects the signs in question on a weekly basis. During the roughly three years which he had been performing inspections in the area in question he had inspected the seven signs a minimum of 200 times. His inspection schedule for the signs was on a weekly basis.
His inspections led to the citations of those signs belonging to the Respondent. The basis of the citations are described in the Statement of the Issues. The citations date from July 18, 1990, based upon inspections performed July 12, 1990. The citations were received by Respondent on July 23, 1990. As described, Respondent having served the citations, this prompted the formal hearing.
The sign in 5871T is located on Interstate 75 North, 22.4 miles north of the Marion County line. It advertises the Red Lobster restaurant. It is depicted in the photographs consisting of Petitioner's exhibits 2 and Respondent's exhibits 2A through 2C. Concerning the complaint, Burch discovered what he considered to be a lack of permit through his inventory or inspection activities that are routinely performed mentioned before. In conducting these inspections Burch used a computer printout issued by Thomas N. Brown, district outdoor advertising administrator in the Petitioner's district where the subject signs were found. That printout indicates the sign location and whether the signs are permitted or not. The printout also includes signs which Chapter 479, Florida Statutes, describes as nonconforming signs. The sign in 5871T did not show up on the computer printout as having been permitted. Burch does not recall that a permit tag was attached to the sign in 5871T. In addition to checking his printout Burch contacted Petitioner's Tallahassee office to see if that office had any record of a permit being issued to the sign in 5871T. He was told that the Tallahassee records did not reflect a permit issuance. From the tenor of his remarks, Burch also examined records in the district office where he works to ascertain whether a permit had been issued for the sign in 5871T. Those records dated back to 1987. They did not reveal the issuance of a permit. In his contacts with the Tallahassee office of Petitioner, he did not determine how far back in time those records went. Neither did he go to Tallahassee to examine the records which were held by the Petitioner on this subject.
The methods of looking at his inventory list, available information at the district level where he works and contacts with Tallahassee, in Burch's attempts to ascertain whether permits had been issued were the same in 5873T and 5876T as they were in 5871T concerning the basic methods which Burch employed to find out if permits had been issued for the latter two signs.
The sign in 5873T is at Interstate 75 North at mile 5.93. It is a Red Lobster advertisement. It is depicted in Petitioner's exhibit number 2 and Respondent's exhibits numbers 2A through 2C, photographs of the sign. The photographs taken of this sign and all other signs which are Petitioner's exhibits were made by Burch on July 12, 1990. The photographs which are Respondent's exhibits were made by Andrew Wayne Lee on August 23, 1990. In 5873T a permit tag is not attached to the sign or any of its supporting posts. Burch noted at hearing that if an application was made at that point in time to have a new permit issued it would not be approved because of a spacing problem.
In 5876T, the sign in question is a Red Lobster advertisement. The sign is at Interstate 75 South at mile 3.49. Petitioner's exhibit number 2 and Respondent's exhibits 2A through 2C are photographs of the sign in 5876T. The Respondent's photographs depict attached permit tags. The details of those permit tags may not be discerned by examining the photographs. Burch had no recollection of those tags at the time that he made his inspection. His attempts to determine if a permit had been issued for this sign are as previously described. These attempts did not lead to the confirmation that a permit had been issued.
In 5872T, the sign is at Interstate 75 North at mile 23.46. Petitioner's exhibit number 2 and Respondent's exhibits 2A through 2C are photographs of the sign. They depict a blank sign face which has been painted. At no time during the inspections which Burch made did he observe any advertising on the sign face. The sign had been painted before the formal complaint was made concerning the allegation of being void of advertising for 12 months or longer. The sign had a permit tag attached dating from 1974. It is classified as a nonconforming sign. In addition to the date of the permit tag being 1974, the spacing which Burch measured pointed out that the sign was nonconforming.
According to Burch, the sign at 5872T became void of advertising approximately two years before the hearing date. What he meant was whatever was on the sign was not legible to Burch. What the witness said was that approximately two years ago is when he noticed that he was unable to read the message on the signboard even though there was something written there. That is the reason why he began to believe that it was void of advertising. Legibility to Burch means that the message is dilapidated, faded or the paint pealing off, things of that nature. He is unaware of any policy by the Petitioner by way of a memorandum which sets out standards of what it means to be void of advertising as a definitional matter. From the record there does not appear to be any standards by Petitioner which further describe the meaning of void of advertising beyond what is stated in Rule 14-10.007(2)(e), Florida Administrative Code.
In 5874T the sign in question is at Interstate 75 North at mile 21.79. It is depicted in Petitioner's Exhibit 2A and B and Respondent's Exhibits 2A-C, photographs of the sign. Unlike the situation in 5872T, this sign does have information which is portrayed; however, the message that is being presented is unclear. In his inspections Burch has never viewed advertisement that he considered legible. His statement of legibility equates to the notion of
clarity evidenced by the photographs referred to. The sign also had a spacing problem and was nonconforming for that reason. Again, this sign had been void of advertising in terms of legibility for approximately two years before the hearing date, according to Burch's observations.
In 5875T the sign in question is located at Interstate 75 North at mile 22.39. The sign is depicted in Petitioner's Exhibits 2A and B and Respondent's Exhibits 2A-C. This sign is in disrepair in that some of the panels are missing. The sign while it contains writing is unclear in its message or lacking in legibility when observing the photographs. Respondent's Exhibits No. 2A and B show permit tags affixed. Those tags cannot be read as to their contents concerning dates upon which the permit tags were issued. Burch confirmed that the sign was void of advertising for over 12 months by making weekly inspections. The sign in question is nonconforming because of spacing problems.
In 5877T the sign in question is at Interstate 75 South at mile 3.44. This sign is depicted in Petitioner's Exhibit No. 2 and Respondent's Exhibit No. 2A-2C. The photographs show that the sign has been painted and has no message portrayed. Respondent's Exhibit No. 2B shows certain tags affixed. The uppermost tags on the pole bear dates of 1973 and 1974. This sign had been painted before the complaint was issued concerning the alleged violation. The sign is a nonconforming sign based upon spacing problems.
No prior action had been taken concerning the signs that have been discussed, as Burch understands it, based upon the Petitioner's policy of not filing complaints against a Respondent unless the process may be concluded by removing the signs that are offending.
Brown supervises Burch. He rides Interstate 75 and conducts periodic inspection or inventories in the same areas where his inspectors perform their duties. This had made Brown familiar with the signs in question.
As Brown describes it, if there is no permit tag, and the inventory related to signs based upon computer records at the district level don't include questioned signs, resort is made to the records in Tallahassee to ascertain whether a permit exists for a questioned sign. If the records checks locally and in Tallahassee do not reveal that a permit was issued then the district officials conclude that the sign is illegal. Alternatively, at times the sign owner may have records which will verify the existence of a permit and that would be available to the Petitioner. Copies of applications for permits are available to Brown and in the absence of an approved application this is further evidence that the permit was not issued. It may also be evidence that the approved application has been lost. At the end of each year a list of signs held by companies such as that of the Respondent is prepared and sent to the sign owner for billing purposes, the collection of fees. This gives an indication of permits that are held by the sign owner and the sign owner assists in verifying the ownership by remitting annual fees to pay for the sign operation and through such remittance clarifying the status of permitted signs which are held by that vendor. As Brown describes, Petitioner also becomes aware of the status of signs through transfers of permit tags from one owner to another related to a given sign.
Brown employed general methods for researching the question of whether a permit had been issued for the questioned signs as was described before. In particular related to 5871T, 5873T and 5876T he checked for original applications and could find none. He called Tallahassee and tried to get research information from Tallahassee concerning permits being issued and was unable to find any information. He went through old filing cabinets at the district level and found nothing. This search in the filing cabinets was a manual search in addition to the computer search which he had made at the district level. None of these attempts led to verification of a permit being issued for the signs in question. There was information which suggested that the signs may have been in violation as far back as 1983. He did find one permit that had been issued related to 5871T, that permit belonged to the National Company for a Manatee County sign. It was not for a permit for the Alachua County sign owned by Respondent. The 1971 permit tag belonging to National can be seen in the photographs by Respondent, his Exhibit No. 2. That same tag number is referenced in an affidavit requesting a new tag permit for a loss permit that relates to that location and is found as Petitioner's exhibit number 3 admitted into evidence. It was submitted on August 6, 1990 and will be further discussed in describing the testimony of Andrew Wayne Lee at hearing.
The computer records at the district level at times include unpermitted signs as well as those that have permits. This is not an indication that a permit had been issued for the sign upon some former date.
Mr. Brown believes that the idea of a sign void of advertising is a sign which has no copy on the sign, an example is a sign that is painted blank for a period of one year. In 5874T Brown recalls this sign as being void of advertising for five and a half years, this is taken to mean illegible. When shown the photographs depicting the sign in 5874T he described that sign as looking the same way as depicted in the photographs for a period of five and a half years. He said that in driving 55 or 60 miles an hour he could not read what was on that sign. He also remarked that in 5875T he couldn't read some of the letters in that sign well enough to tell what was written.
Brown described the speed limit in the area of the signs in question as being 65 miles per hour. His representation is accepted.
Brown describes the fact that when the owner of the signs do not pay the annual fees the signs are found in violation and a "take down" order is issued.
In making his record search to discover whether the signs which were charged with having no permit had ever been recorded as permitted, Brown indicated that the records of the Petitioner went back as far as 1971 but that they were not complete. This incompleteness as to some of the records refers to the absence of a paper record or a computer entry record.
Brown acknowledges certain contacts with Respondent or members of his family. He does not recall that Respondent or members of the family were requested to submit Respondent's proof of permitting for the three signs that are the subject of a claim that no permits were issued for them. Notwithstanding this lack of inquiry, the hearing presented the opportunity for the Respondent to submit any information it had regarding the matter of permits being issued for those three signs in defending against the allegations.
In the annual billing lists which are submitted to the vendors such as Respondent, they include properly permitted signs or signs in good standing as well as signs that are considered in violation. The idea of in violation would include the problem of not having permits issued for the sign. This is borne out by Respondent's exhibit number 4 which is a billing list which Respondent had which refers to the three signs in question for which permits are said to be lacking. For that reason permit numbers are not found on that page of the exhibit which describes the signs.
Andrew Wayne Lee, son of Respondent described how he is in the cattle business, the outdoor advertising business and that he buys and sells properties. He says his family has been in the outdoor advertising business since about 1965. His involvement in the outdoor advertising business has been more extensive in the last three or four years. He became involved because his father was diagnosed as having Alzheimer's disease in or around April or May of 1985. Before that date the son had very little participation in the outdoor advertising business.
Respondent's son made an attempt to find records which would verify the status of the signs in question, especially those which Petitioner claims to not have permits. He describes that a number of records concerning the outdoor advertising business had been stored in a family residence around 1972 and in 1981 an accidental fire occurred and those records were burned up. He says that other records were put in different places by his father and that he is unable to converse with his father about where those additional records may be found given his father's illness.
Lee points out in 5871T, the photograph Respondent's 2B showing the 1971 tag permit. As stated that tag permit is the incorrect tag permit for the sign.
In 5873T, Respondent's 2A and 2C show markings on the pole where permit tags were probably affixed, according to Lee. Unfortunately it is unclear what happened to those permit tags and whether they were the appropriate permit tags for the sign at the time they were affixed. It may well be that they were the inappropriate permit tags as was the case of the 1971 permit tag which was affixed to the sign in 5871T at the time Lee took photographs on August 23, 1990.
In 5876T Lee refers to Respondent's exhibit 2C which shows two permit tags. He did not describe the idea that these two permit tags were the appropriate permit tags for the sign in question. He made no mention of those permit tags when he attempted to obtain a new permit tag for that sign by submission of an affidavit on August 6, 1990 as depicted in Respondent's exhibit number 3 in 5876T. It is unexplained why Respondent in making an affidavit in furtherance of its attempt to gain a new permit tag for the sign in 5876T would not refer to the older permit tags affixed to the sign and their numbers in an attempt to verify that a permit had been issued in the past. On the other hand, resort to that information found on the preexisting permit tags located on the sign post would be unavailing if they were not associated with that sign when they were issued or if they could not be cross-referenced with the older records held by the Petitioner that established the permits on the signpost as being related to the sign in question. Neither party made connection in the record between the permit tags on the sign post and the idea of a permit having been issued specifically for that sign at that location.
In his attempt to bring the signs in compliance by making affidavits seeking the reissuance of a tag permit for the three signs in question where Petitioner claims permits did not exist, Lee described his methods. Having found no record held by Respondent which would describe the issuance of permits for those three signs, in preparing the affidavit in 5871T, he used a 1971 permit tag number that was found on the sign because it was the only number he had available. He was hopeful that the Department could use that as some sort of cross reference to verify the existence of a permit. He believed the three signs were permitted, but felt that he had no means of tracking down the proper numbers.
In addition to searching the records held by Respondent he went up and down the road trying to ascertain the appropriate permit numbers. Lee also went to Tallahassee and examined Petitioner's files. He noted that the amount of records concerning the activities of his father in the outdoor advertising business, which is much more extensive than the seven signs in question, were not the same as on other occasions when he and his father had visited the Petitioner's office in Tallahassee. This refers to records held by the Petitioner. The comparison of what he saw on the occasion of his attempt related to the present cases and what he found on trips made by Lee and his father differed in that on prior occasions he found considerably more material than he found on the latter trip.
In describing the permit affidavit for obtaining a new permit tag in 5871T, Lee describes this as having been involved in an agreement with Peterson Outdoor Advertising. This is in addition to his remarks about the use of the 1971 tag which have been stated before. The significance of this swap agreement, if one existed with Peterson Outdoor Advertising, as it relates to the question of an appropriate sign permit having been issued in 5871T was not explained in the hearing.
In 5873T, as with 5871T and 5876T Lee prepared an August 6, 1990 affidavit requesting a new tag permit. This is found in Respondent's exhibit number 3 in case number 5873T. The several affidavits submitted in an attempt to gain new permit tags for the three signs Petitioner claims do not have permits were rejected. All affidavits were returned.
In summary, Lee believes that the three signs in question had permits issued but has no proof from any source which would confirm that belief.
In the signs which are the subject of the claims of being in jeopardy for reasons that they are void of advertising, the signs in 5874T and 5875T have been removed by Petitioner. The signs in 5872T and 5877T have been painted but have not been leased given the pendency of these proceedings.
Robert Still is construction manager and supervisor for Respondent. He has worked for that concern for over 18 years.
Still describes the painting of the signs at 5872T and 5877T in June of 1990. The sign in 5872T had copy related to McDonald's and the sign related to 5877T had copy related to Sonny's Bar-B-Q before they were painted over in the blank color described in the photographs. Still offered no comments concerning the legibility of the McDonald's copy in 5872T and the Sonny's Bar-B- Q copy in 5877T before that copy was painted over in June, 1990.
Still's relationship with the Respondent's company did not extend to being responsible as records custodian for information associated with permit issuance and permit renewal fees. He expresses, as did Lee, the belief that the three signs in question were permitted at one time or another but has no records to verify this belief. He does recall placing permit tags on the signs in question. In 5876T he makes mention of the fact of the older permit tags which are shown in the photographs by Respondent. He states that the sign in 5871T had a permit at one time which was a 1974 permit. This was as distinguished from the 1971 permit which was found on that sign on August 23, 1990 depicted in Respondent's photographic exhibit.
Still has worked with the sign in 5871T for about 12 years; the sign in 5876T for 12-14 years and the sign in 5873T since 1973.
In spite of the remarks by Lee and Still concerning their belief that permits had been issued for the signs in 5871T, 5873T, and 5876T, on balance based upon the record and the facts found herein, permits were not issued for those signs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of the parties to this action pursuant to Section 120.57(1), Florida Statutes.
The burden to prove the allegations set forth in the various notices of violations/administrative complaints resides with the Petitioner. See Henderson Signs v. Fla. Dept. of Trans., 397 So.2d 769 (Fla. 1 DCA 1981).
Chapter 479, Florida Statutes, makes the Petitioner responsible for regulating outdoor advertising. Respondent is in the "business of outdoor advertising" as that term is defined in Section 479.01(1), Florida Statutes.
Interstate 75 in Alachua County, Florida, is part of the interstate highway system as defined in Section 479.01(7), Florida Statutes.
The signs described in 5872T, 5874T, 5875T, and 5877T are nonconforming signs as defined in Section 479.01(12), Florida Statutes.
All signs in these cases are signs within the definition of Section 479.01(14), Florida Statutes.
Pursuant to Section 479.02, Florida Statutes, Petitioner is empowered to administer and enforce provisions of Chapter 479, Florida Statutes, and to adopt rules to assist in the administration of the chapter.
Section 479.07(1), Florida Statutes, describes the requirement for obtaining a permit to erect, operate, use or maintain a sign along the interstate highway system.
Section 479.07(3)(c), Florida Statutes, describes the annual permit fee requirement as follows:
(c) The annual permit fee for each sign facing is $25 for 20 lineal feet or less and
$35 for more than 20 lineal feet. A fee may not be prorated for a period less than the
remainder of the permit year to accommodate short-term publicity features; however, a first-year fee may be prorated by payment of an amount equal to one-fourth of the annual
fee for each remaining whole quarter or partial quarter of the permit year which ends on January
15. Applications received after September 30 must include fees for the last quarter of the current year and fees for the succeeding year.
Further Section 479.07(8)a), Florida Statutes, describes the period of the annual permit and the method for keeping current the fee collections where it states:
(8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each
year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or
errors contained in the notice. Permit tags which are not renewed shall be returned to the department for cancellation by January 15. Permit tags which are not renewed or returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment.
Section 479.07(5)(a), Florida Statutes, describes the issuance of a permit and the verification of that issuance through the furnishing of a serially numbered permanent metal permit tag to be affixed to the sign or pole which supports the sign wherein it is stated:
(5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is
no facing, on the pole nearest the highway; and it shall be attached in such a manner as
to be plainly visible from the main-traveled way.
The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee
fails to erect a completed sign on the permitted site within 270 days after the date on which
the permit was issued, the permit will be void, and the department may not issue a new permit
to that permittee for the same location for
270 days after the date on which the permit became void.
Section 479.105, Florida Statutes, empowers the Petitioner to remove a sign which is not properly permitted.
Taking into account the burden of proof, the provisions of law set forth and the facts found, it is concluded that the respondent has operated the signs in 5871T, 5873T and 5876T without the benefit of a permit, without legal authority and that those signs may be removed by the Petitioner. This conclusion recognizes that the statute must clearly authorize this action. Chapter 479, Florida Statutes, as described grants such authority. Consequently the removal of the signs is not contrary to the holding in Food-N-Fun, Inc. v. Dept. of Trans., 493 So.2d 23 (Fla. 1st DCA 1986).
The signs spoken to in 5872T, 5874T, 5875T and 5877T are nonconforming signs within the definition of 479.01(12), Florida Statutes. See also Rule 14- 10.007, Florida Administrative Code. More particularly as nonconforming signs they are violative of Rule 14-10.007(2)(e), Florida Administrative Code, which states:
(2) The following shall apply to non-conforming signs:
* * *
(e) A sign face which remains void of advertising matter for 12 months or longer shall be deemed an abandoned or discontinued
sign and shall lose its nonconforming status . . .
These signs have lost their nonconforming status by being void of advertising for 12 months or longer and are considered abandoned and discontinued. While signs which are nonconforming in some instances are considered legal, the subject signs that have been found void of advertising are no longer legal. To remain in a legal nonconforming status, as opposed to an illegal nonconforming status, the copy on those signs would have to be legible and clear to present a meaningful advertising message and not be in violation of this provision within the Florida Administrative Code. These signs did not maintain that quality. This infirmity when coupled with spacing problems which made them nonconforming would allow the Petitioner to remove the signs in accordance with Section 479.105, Florida Statutes. This conclusion is reached having in mind the court opinions in Lee, Jr. v. Fla. Dept. of Trans. 366 So.2d
116 (Fla. 1st DCA 1979) and Johnson, Inc. v. Fla. Dept. of Trans., 371 So.2d at
494 (Fla. 1st DCA 1979). These court opinions are read to grant to the reviewing court the opportunity to examine a rule such as Rule 14-10.007(2)(e), Florida Administrative Code, and decide whether the prohibitions within the rule are authorized by Chapter 479, Florida Statutes. This court created opportunity to invalidate rules which are not consistent with the enabling legislation does not appear to be an exercise which may be undertaken by the Hearing Officer in a Section 120.57(1), Florida Statutes, hearing, in contrast to a specific examination of rules as envisioned by Section 120.56, Florida Statutes. The Hearing Officer is bound by Rule 14-10.007(2)(e), Florida Administrative Code. It must be accepted as law absent an administrative rule challenge pursuant to Section 120.56, Florida Statutes, which declares the rule invalid or subsequent court declaration of the invalidity based upon an appeal taken from the final order in these cases which had been adverse to the Respondent.
Based upon the findings of fact and conclusions of law reached, it is RECOMMENDED:
That a Final Order be entered which finds that all signs at issue are illegal and that confirms the removal of the signs in 5874T and 5875T and calls for the removal of the signs in 5871T, 5872T, 5873T, 5876T, and 5877T.
DONE and ENTERED this 16th day of April, 1991, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 16th day of April, 1991.
ENDNOTES
1/ For convenience case numbers 5871T through 5877T shall be referred to in the Recommended Order as 5871T through 5877T.
APPENDIX
The following discussion is given concerning the proposed findings of fact of the parties:
Petitioner's Facts
Paragraphs 1 through 4 are subordinate to facts found.
Paragraphs 5 through 7 are not necessary to the resolution of the dispute. Paragraphs 8 through 22 are subordinate to facts found.
Paragraph 23 is not necessary to the resolution of the dispute. Paragraphs 24 through 34 are subordinate to facts found.
Paragraphs 35 through 41 are explanations concerning corrections to the authority for the citations and do not constitute fact-finding as such. Paragraphs 42 through 55 are subordinate to facts found.
Respondent's Facts
Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 constitutes legal argument.
Paragraphs 11 through 14 are subordinate to facts found.
Paragraphs 15 and 16 are not necessary to the resolution of the dispute.
COPIES FURNISHED:
Charles G. Gardner Assistant General Counsel
Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, FL 32399-0458
Will J. Richardson, Esquire Iamonia Farms Road
Post Office Box 12669 Tallahassee, FL 32317-2669
Ben G. Watts, Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, FL 32399-0458
Thornton J. Williams, General Counsel Department of Transportation
562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE OF FLORIDA,
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. DOAH CASE NOS. 90-5871T, 90-5872T, 90-5873T, 90-5874T,
A. W. LEE, JR., 90-5875T, 90-5876T, 90-5877T
Respondent.
/
FINAL ORDER
Pursuant to notice, this matter came on for hearing before Charles Adams, a duly designated Hearing Officer of the Division of Administrative Hearings on January 24, 1991, in Lake City, Florida. The parties to this matter are Petitioner, State of Florida, Department of Transportation, and Respondent, A.
W. Lee, Jr. Appearances on behalf of the parties were made as follows:
Petitioner: Charles G. Gardner, Assistant General Counsel Florida Department of Transportation
Haydon Burns Building
605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0458
Respondent: Will J. Richardson, Esquire
Iamonia Farms Road Post Office Box 12669
Tallahassee, Florida 32317-2669
Petitioner, Florida Department of Transportation (hereinafter Department) issued seven (7) notices of violation to Respondent A. W. Lee, Jr. (hereinafter Lee) on July 12, 1990, for separate outdoor advertising locations along Interstate 75 in Alachua County, Florida. Four of the sign locations were cited by the Department for being void of advertising matter for twelve months or longer. The remaining three sites were noticed for not having a valid outdoor advertising permit.
On April 16, 1991, a Recommended Final Order was entered by the Hearing Officer. Counsel for Respondent filed exceptions to the Recommended Order with the Department on May 2, 1991. After a review of the entire record, the Hearing Officer's Recommended Order and the exceptions to that Order filed by Lee; the Department enters this Final Order.
REVIEW AND CONSIDERATION OF RESPONDENT'S FILED EXCEPTIONS
Respondent's filed exceptions are numbered and addressed in the same order and fashion as they were filed with the Department.
There is nothing in the Hearing Officer's Finding of Fact No. 40 which implies a perceived invalidity of a 1974 permit tag. The apparent question raised by the testimony of Mr. Still (Tr. 151, 19-23) was the statement that the tag had to be a `74 tag or a brand new tag to be a valid tag. This testimony in view of the photographic exhibit evidence showing a `71 tag apparently called into question the accuracy of this witness's testimony as to when and if a permit tag was affixed to the questioned sign.
The plain language used by the Hearing Officer in Finding of Fact 42 in no way can be construed as imposing a legal standard other than that required by prevailing law in administrative cases. The appropriate standard of review by an administrative Hearing Officer is that factual findings must be predicated upon competent substantial evidence. Section 120.57(1)(b)10., Florida Statutes. Furthermore, the term "on balance" appears to be an expression used by this Hearing Officer which bears no special legal significance. The term was used by the Hearing Officer to convey his understanding of a very definite and clear cut stipulation between the parties prior to commencement of the evidentiary portion of the hearing. (Tr. 6, 16-24)
There is nothing contained in the legal conclusion excepted to by Lee to indicate an inappropriate burden of proof was applied in consideration of this case. Lee appears to confuse the concept of burden of proof and standard of proof in that the burden refers to the party which bears the responsibility of going forward with the affirmative of the case while the standard of proof relates to the degree to which the party carrying the burden of proof must in fact persuade the fact finder. It should further be noted that the Hearing Officer cited Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981), which is the very case cited by Lee which articulates what Lee apparently considers to be the appropriate legal standard by which matters must be proved in administrative cases.
However, Henderson did not in fact alter or raise the standard of proof where an administrative penalty is to be imposed. The Henderson court merely noted that the court would require that the severity of the penalty imposed be weighed on a similar scale as that employed in weighing evidentiary matters in the case.
Respondent's claim that positive evidence was offered to support the claim that sign permits had been issued for the signs which are the subject of Case Nos. 90-5871T, 90-5873T, and 90-5876T, is not supported by the record or the Hearing Officer's findings. The Hearing Officer noted in Finding of Fact No. 36 that although Lee believed that the three signs in question had permits issued, Lee presented no proof from any source which would confirm that belief. (emphasis added) The Hearing Officer made no specific finding as to the veracity of any of the witnesses, either for the Department or for Lee. The fact, however, did not escape the Hearing Officer's notice that at least one of the signs which Lee claimed a permit had been issued bore a tag which was clearly not authorized for that sign in Case No. 90-3871T. (Finding of Fact No. 29)
Furthermore, the notion that markings on the other signs was not a reliable indicator that permits were ever issued for those signs was noted by the Hearing Officer by the statement that it "may well be that they were the inappropriate permit tags as was the case of the 1971 permit tag which was affixed to the sign in case No. 90-5871T at the time Lee took photographs on August 23, 1990." (Finding of Fact 30) It is apparent that the Hearing Officer questioned the reliability of the claims by Lee and Still that permits had been issued for the questioned signs. At best, their testimony may also be characterized as negative for a lack of affirmative proof.
The cases cited by Lee, A. W. Lee, Jr. v. Florida Department of Transportation, 366 So.2d 116 (Fla. 1st DCA 1979) and Johnson & Johnson, Inc. v. Florida Department of Transportation, 371 So.2d 494 (Fla. 1st DCA 1979), both contemplate that a district court's authority encompasses review of the validity of administrative rules when review of agency actions relating to those rules are before such a court. The hearing officer correctly pointed out that his jurisdiction is very different from that of an appellate court. For an administrative hearing officer to determine the validity of an agency rule, the matter must be brought before the Division of Administrative Hearings pursuant to section 120.56, Florida Statutes. Respondent Lee elected not to bring such an action relating to Florida Administrative Code Rule 14-10.007(2)(e). There is no failure to follow case precedent because there were no identical or even similar substantive issues common to this case and those cited by Lee.
Although Lee has set out two separate exceptions numbered 6 and 7, both address the same issue relating to enforcement of this order and are dealt with together in this paragraph. Lee's claim that he now has thirty days from entry of this order to place advertising on the offending signs is unfounded. Once the signs in Case Nos. 90-5872T, 90-5874T, 90-5875T, and 90-5877T were void of advertising for twelve months or more, the signs then by operation of law lost their nonconforming status and became illegal, unauthorized, as well as unpermitted signs. (Florida Administrative Code Rule 14-10.007(2)(e))
The only thirty day period afforded permittees to correct violations of Chapter 479 is found in Section 479.05, Florida Statutes. That section is titled "Denial or revocation of license." Neither situation applies here. For the signs in Case Nos. 90-5871T, 90-5873T, 90-5876T, no permit existed to be revoked. Lee was not appealing denial of a permit application. Rather, the Department sought removal of illegal signs for which there was no allegation by Lee that such signs could lawfully be permitted pursuant to the existing statutory requirements. The signs in Case Nos. 90-5872T, 90-5874T, 90-5875T, and 90-5877T were formerly nonconforming signs which through passage of time and Lee's failure to maintain advertising on those signs as required by law, lost their nonconforming status and were thus illegal signs. The only remedy to that violation of statute, and for the three unpermitted signs is removal. Lee was afforded an opportunity by the violation notice to "comply with the applicable provisions of the said Statute(s) and Code(s), within thirty days of the date of the posted notice or to seek an administrative hearing. Nothing in the notice of violation implied any ability on the part of Lee to cure the noticed violations in any manner other than removal of the signs.
After fully considering all of the foregoing matters, the Department accepts the Hearing Officer's findings of fact and conclusions of law and herein adopts the Recommended Order and makes it a part hereof as if fully set out herein. It is therefore
ORDERED that all signs at issue are illegal and any signs which are the subject of this Final Order which have not already been removed must be removed by Respondent Lee within thirty days of the date of this Order. Should Lee fail to timely remove the offending signs, the Department shall remove the signs and the cost is hereby assessed against Lee.
DONE and ORDERED this 9th day of July, 1991.
for BEN G. WATTS, P.E.
Florida Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
COPIES FURNISHED:
Charles C. Adams, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Will J. Richardson, Esquire Iamonia Farms Road
Post Office Box 12669 Tallahassee, Florida 32317-2669
Charles G. Gardner, Esquire
Florida Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399
Gary Kissinger
Motorist Information Services Coordinator Florida Department of Transportation
605 Suwannee Street
Tallahassee, Florida 32399
Grady Greene District Secretary
Florida Department of Transportation 1901 South Marion Street
Lake City, Florida 32050
Tom Brown
District Outdoor Advertising Administrator Florida Department of Transportation
1901 South Marion Street Lake City, Florida 32050
RIGHT TO APPEAL
THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY
(30) DAYS OF RENDITION OF THIS ORDER.
| Issue Date | Proceedings |
|---|---|
| Apr. 16, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 09, 1991 | Agency Final Order | |
| Apr. 16, 1991 | Recommended Order | Petitioner sought to remove signs in this series of cases. Recommended removal of signs. |
SOUTHEAST-SD, LLC vs DEPARTMENT OF TRANSPORTATION, 90-005871 (1990)
DEPARTMENT OF TRANSPORTATION vs. THOMAS V. INFANTINO, 90-005871 (1990)
DEPARTMENT OF TRANSPORTATION vs. NATIONAL ADVERTISING COMPANY, 90-005871 (1990)
DEPARTMENT OF TRANSPORTATION vs. GARY DOTSON, 90-005871 (1990)
DIVOSTA AND COMPANY, INC. vs DEPARTMENT OF TRANSPORTATION, 90-005871 (1990)
