STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD OUTDOOR ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2668T

) DEPARTMENT OF TRANSPORTATION ) and LAMAR ADVERTISING COMPANY ) OF FT. WALTON BEACH, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Martin B. Daniel, Esquire

47 North Third Street Memphis, Tennessee 38103

For Respondent: Paul Sexton, Esquire (Department of Department of Transportation

Transportation) Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Robert P. Gaines, Esquire (Lamar BEGGS & LANE

Advertising) Post Office Box 12950

Pensacola, Florida 32576 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the permit of Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc. (Lamar), for a certain advertising sign was actually revoked by letter of the Respondent, Department of Transportation (Department), on April 6, 1993. Embodied within that issue is the question of whether Lamar lost its right to retain the sign permit because of lack of written permission from the land owner at the sign site and whether the Petitioner, Emerald Outdoor Advertising, Inc. (Emerald), is entitled to a permit for a location sought by its application.

PRELIMINARY STATEMENT

This proceeding arose upon the filing of a request for formal proceeding by Emerald to contest the Department's decision to deny its application. Emerald had applied for outdoor advertising sign permits in Destin, Florida. Emerald, in effect, was seeking to obtain outdoor sign permits for a site approximately 778 feet from where Lamar has maintained a sign. Emerald, in effect, is contesting Lamar's right to permits for their outdoor advertising signs at that site because they are in spacing conflict with the site for which Emerald seeks its permits, and Emerald maintains Lamar lost landowner permission for its site and failed to contest proposed revocation of its permit. After discovery was undertaken and a hearing scheduled, the parties entered into a stipulation of facts agreeing to submit the issues to the Hearing Officer on a factual stipulation, as well as the testimony of John Garner, taken by deposition.

The parties submitted proposed recommended orders containing proposed findings of fact and conclusions of law and legal memoranda. The proposed findings of fact submitted have been treated in this Recommended Order and once again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. Emerald applied for an outdoor advertising sign permit for a location approximately 778 feet west of the location for which a permit had previously been issued to Lamar. If the permit previously issued to Lamar were not in spatial conflict with the permit site sought to be used by the Petitioner, the Petitioner's permit could be granted. The Petitioner's proposed site, however, is in statutorily prohibited proximity to Lamar's site, if Lamar's permit is deemed valid. The Department denied Emerald's application because its proposed application was, in the view of the Department, in spacing conflict with the site related to Lamar's permit.

   
   

2. The controversy at issue relates to a parcel of land in Destin, Florida, owned by members of the family of Kathleen Jones. Herman Jones owned a portion of the property, and Mildred Castro owned a portion of the property. Kathleen Jones held a life estate to Mildred Castro's portion of the property. Permits were issued to Lamar on June 25, 1981 for a sign at the Jones/Castro site. The sign was erected in August of 1981 and was supported by leases of the real estate involved between Lamar and the Joneses. That sign was maintained continuously until May of 1992.

   
   

3. Herman Jones sold his portion of the property in 1992 to Frank J. Roberts and Destin Renaissance, Inc. A survey in conjunction with that sale revealed that the sign was partially on the parcel sold to Roberts and partially on the parcel retained by the Jones family. Lamar, accordingly, moved its sign, since it encroached on the Roberts parcel and executed a release of its lease as to the real estate which Herman Jones had sold to Roberts. Ever since the 1981 erection of the sign, the lease for the site had been between Lamar and Kathleen Jones. It was a written lease and provided for annual renewals. The annual lease payment had been increased in 1985 and again in 1987. On July 27, 1990, the lease was again re-written to increase the annual rental payment. On March 11, 1992, Mr. Roberts sent a letter to the Department's Chipley office stating

that he and his corporation had purchased the property from Herman Jones and that he did not have a lease with Lamar. Acting upon that letter, the Department sent a letter to Lamar on April 6, 1993 which stated:

This office has received information to the effect that you no longer have permission from the land owner to erect or maintain signs on the South side of US 98, 6.3 miles East of SR

85. The permits numbers are AE678-06 and AE679-06. If, in fact, this information is true and correct the permits issued for these

sites are invalid pursuant to Section 479.07(7) Florida Statutes.

You are hereby notified that the Department's determination of invalidity will become con- clusive and the subject permit(s) will be revoked unless you elect to challenge this action by requesting an Administrative Hearing pursuant to Section 120.57, Florida Statutes, within thirty (30) days from receipt of this letter. The request should be addressed to:

Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

In the interim, if you can furnish documentary evidence of current permission from the present property owner to refute this information, it may be possible to resolve this matter to mutual satisfaction.

1. Lamar replied to that letter on April 15, 1993 stating:

   We do have landowner permission for the referenced site as evidenced by our recorded lease of 8/07/90 and our amended lease for the same site dated 12/16/92. In addition the referenced tags were replaced by tags BG796-35 and BG797-35 on 2/15/93.

   
   

   This should be substantial evidence to refute any claim that we do not have landowner permission.

   Please indicate to me in writing the effect this will have on the need for an administrative hearing.

   
   

2. In conjunction with the submittal of that letter of April 15, 1993, Lamar submitted a copy of its recorded lease with Herman Jones dated August 7, 1990 and a copy of its lease with Kathleen Jones dated December 16, 1992. Upon receipt of those documents, the Department concluded that Lamar did have written permission from the landowner to erect a sign at a location for which the permits described in paragraph three above were issued. The Department took no further action to revoke Lamar's permit, and Lamar, therefore, did not apply for an administrative hearing.

3. The Department rejected Emerald's application by letter dated February 9, 1993, and Emerald requested an administrative hearing to contest that initial decision. The rejection of Emerald's permit application was due to the fact that the proposed permit was located less than 1,000 feet (778 feet) from Lamar's permit location. The Department took the position that Lamar's permits were still valid because it had provided satisfactory evidence to the Department that it still had landowner permission for the subject Lamar sign, by presenting a valid lease for the property in question, the Jones/Castro parcel.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 479.08, Florida Statutes, provides:

   
   

   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 the 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.

   
   

   The foregoing provision contemplates that a permittee may avoid revocation of a permit for violation of Chapter 478, Florida Statutes, by bringing its sign into compliance with Chapter 479 within 30 days after receipt of the Department's notice. Lamar's action in providing the Department with valid evidence of landowner permission for its signs, through a valid duly-executed and recorded lease or leases, satisfied the requirement of Section 479.08, Florida Statutes, that Lamar comply with Chapter 479.

   
   

6. Section 479.07(6), Florida Statutes, provides that a permit shall be valid for only the location specified in the permit. The evidence shows that upon sale of the Herman Jones property to Roberts and Destin Renaissance, Inc., it was discovered through a related survey that Lamar's sign was partially on the Herman Jones/Roberts property and partially on the Kathleen Jones/Castro property. Lamar duly agreed to move its sign, since the lease to the Roberts/Destin Renaissance, Inc. property, formerly that of Herman Jones, had been cancelled. Lamar thus moved its sign onto the Kathleen Jones/Mildred Castro property, which part of the sign had been occupying since 1981 anyway, pursuant to the Lamar permits. It thus did not actually and by reasonable interpretation of the relevant statutory provisions cited herein (in the absence of rules) change its sign site. The sign had already partially occupied the site where the Lamar sign now is, and the change was made to conform to the realities of legal ownership and the lease arrangements. Lamar rendered the sign to be in conformance to the parcel where it actually had valid leases, pursuant to the 1990 and 1992 leases of the Kathleen Jones/Mildred Castro

   property referenced in the above Findings of Fact. The record shows that Kathleen Jones has given Lamar permission, through the leases, to maintain its signs on her property. Emerald produced no valid, competent, admissible evidence to demonstrate that the Kathleen Jones permission does not include the present location of the signs in the face of Lamar's showing that it has current permission, through valid leases to maintain its signs on the Kathleen Jones property. Therefore, it cannot be concluded that Lamar's permits should be revoked, because it has not lost landowner permission for its signs.

   
   

7. Section 479.07(9)(a), Florida Statutes, precludes the issuance of a permit for a sign unless it is located at least 1,000 feet from any other permitted sign on the same side of the highway. The parties have stipulated that the Department denied Emerald's permit applications because the proposed location was approximately 778 feet west of the location of Lamar's two permits. Emerald has presented no evidence that the proposed sign is, in fact, located farther away from Lamar's permitted sign site than that determined by the Department. In fact, Emerald's entire case rests on the proposition that Lamar's permit should be revoked in order to eliminate the spacing conflict with the Lamar sign site. There is no dispute that Emerald's proposed location is 778 feet west of Lamar's permitted location. Since, as found and concluded above, there is no basis for revoking Lamar's permits, Emerald's application must fail.

   
   

8. Concerning Emerald's argument that Lamar failed to timely request an administrative hearing to contest the Department's decision of April 6, 1993 regarding revocation of Lamar's permits, it is concluded that the Department's letter of April 6, 1993 did not constitute a final determination that the permits were revoked. The letter, as quoted above, shows that the Department was amenable to Lamar submitting evidence demonstrating that it had landowner permission for the signs and permits in question and obviously invited such evidence, with a view toward amicable resolution of the Lamar permitting dispute with the Department. In fact, Lamar did provide that evidence and the Department elected not to proceed further on the formal revocation effort against Lamar. Section 120.57(2), Florida Statutes (1993), permits an affected party to submit a written statement challenging the grounds upon which an agency has chosen to justify its action or inaction and further requires the agency to provide a written explanation after receiving such objections, if it concludes that the objection should be overruled. The statute does not require that the Department formally revoke or withdraw its proposed agency action if the written explanation of the affected party is accepted by the agency. Here, the Department clearly accepted the showing by Lamar that, indeed, it had landowner permission through the leases submitted to the Department, for the sign location in question. Therefore, the Department elected not to revoke Lamar's permits.

   
   

9. A plain meaning, reasonable interpretation of Section 479.08, Florida Statutes (1993), demonstrates that that section does not require an affected party to seek an administrative hearing if the matter has been handled to the satisfaction of the affected party under the provisions of Section 120.57(2), Florida Statutes (1993), and the relevant provisions of Chapter 479, Florida Statutes, interpreted and enforced by the Department. In fact, Lamar's permit was not revoked by the Department and no proposed final agency action to that effect was ever invoked. Lamar did not waive its right to retain its permits because of lack of written permission from the landowner, as demonstrated by the above Findings of Fact and the preponderant evidence of record. Thus, Emerald is not entitled to a permit for the location sought in its permit application because of the undisputed spacing conflict with Lamar's permits which, if

determined to be valid as they have been, precludes Emerald's successful application for its proposed sign site, pursuant to Section 479.07(9)(a), Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Department of Transportation finding that the applications of Emerald Outdoor Advertising, Inc. for outdoor advertising permits in Destin, Florida, be denied.

DONE AND ENTERED this 1st day of February, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF 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 1st day of February, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2668T

Petitioner's Proposed Findings of Fact

1. Accepted.

2. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and as constituting a conclusion of law instead of a proposed finding of fact.

Respondent Department's Findings of Fact

The Respondent, Department of Transportation, adopts the proposed findings of fact submitted by the Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc. Thus, those proposed findings of fact are accepted. Proposed finding of fact number nine submitted by the Department, in addition to those submitted by Lamar, is rejected as being unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent Lamar's Proposed Findings of Fact

The Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc.'s proposed findings of fact are accepted in their entirety as are the facts stipulated to by the parties.

COPIES FURNISHED:

Martin B. Daniel, Esq.

47 North Third Street Memphis, TN 38103

Robert P. Gaines, Esq. BEGGS & LANE

Post Office Box 12950 Pensacola, FL 32576

Paul Sexton, Esq.

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

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, Esq. 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 to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to 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.

Docket for Case No: 93-002668

Orders for Case No: 93-002668