STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWNGATE CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 96-2771T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

RECOMMENDED ORDER

An administrative hearing was conducted on April 30, 1997, in Port Richey, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen C. Booth, Esquire

Booth and Cook, P.A. 7510 Ridge Road

Port Richey, Florida 34668

For Respondent: Francine Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 50 605 Suwannee Street

Tallahassee, Florida 32399-4458

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent should revoke Petitioner's sign permits and retrieve Petitioner's permit tags because Petitioner violated Sections 479.07(5) and 479.08, Florida Statutes, 1/ and Florida Administrative Code Rule 14- 10.004(7), 2/ by allegedly removing its sign from its property and by failing to display the permit tag prior to removing the sign.

PRELIMINARY STATEMENT

On July 12, 1995, Respondent issued a Notice of Violation to Petitioner stating that Petitioner's outdoor advertising sign no longer existed at the site identified on the permit application and that Petitioner's sign permit would be revoked within 30 days of the date of notice. Petitioner timely requested an administrative hearing. Respondent referred the matter to the Division of Administrative Hearings to conduct a hearing.

At the hearing, Petitioner presented the testimony of two witnesses, and submitted 13 exhibits for admission in evidence. Respondent presented the testimony of two witnesses and submitted

12 exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on May 21, 1997. Petitioner timely filed its proposed recommended order ("PRO") on June 5, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is a Florida corporation formed in 1983 by Mr. Rodney Forton. Mr. Forton is the president and sole shareholder of Petitioner.

2. Sometime in 1987, Petitioner entered into a management agreement with Cotee River Outdoor Advertising Company ("Cotee River"). The management agreement provided that Cotee River would construct a sign on property owned by Petitioner on U.S. highway 19 in New Port Richey, Florida (the "Cotee River sign").

Cotee River agreed to pay Petitioner a portion of the advertising revenues from the sign.

1. The Cotee River Permit

   1. On May 26, 1987, Cotee River applied for an outdoor advertising sign permit from Respondent. The application described the Cotee River sign as a rectangular wood sign measuring 10 feet by 20 feet, with its lowest point approximately

      15 feet above ground level and its highest point approximately 25 feet above the crown of the road.

   2. Respondent approved the application and mailed the approval to Cotee River on May 29, 1987. On June 3, 1987, Respondent located the Cotee River sign in Respondent's sign inventory at, Section 595, ". . . N/B 5.06 in F/N."

   3. The number "5.06" indicates that the sign is located at milepost 5.06 on U.S. 19. 3/ Mileposts describe the location of each sign by the distance of the sign from a fixed point.

   4. Each of Respondent's outdoor advertising inspectors measures the milepost for each sign in his or her territory using a distance measuring instrument. Respondent then enters the milepost for each sign in Respondent's sign inventory. The milepost of 5.06 that Respondent assigned to the Cotee River permit was incorrect.

   5. In May 1987, Cotee River constructed a sign on Petitioner's property pursuant to the permit granted by Respondent. The sign was a metal monopole sign rather than the

      wood sign described in the application. The Cotee River sign was not constructed at milepost 5.060.

   6. Cotee River rented the sign to outdoor advertisers. However, Cotee River failed to pay any portion of the advertising revenue to Petitioner, and the parties resolved the matter by mutual agreement.

   7. Petitioner and Cotee River agreed that Cotee River would release its right to manage the Cotee River sign in consideration for the right to manage a sign located on other property owned by Petitioner. The agreement provided that Petitioner would pay Cotee River a prescribed sum in exchange for the performance of specific duties by Cotee River.

   8. Cotee River failed to perform the duties specified in the agreement. Petitioner refused to pay the balance of payments.

   9. Petitioner sued Cotee River. Cotee River went into bankruptcy and was dissolved.

2. Petitioner's Permit

   1. On July 14, 1992, Petitioner applied for an outdoor advertising sign permit for the Cotee River sign. The application described the sign as an existing rectangular, metal, monopole "sign in place," measuring approximately 10 feet by 20 feet. The application stated that the sign was first erected in May 1987.

   2. Respondent approved the application from Petitioner and mailed the approval to Petitioner on October 12, 1992.

      Respondent again incorrectly listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/B 5.060 in F/N."

   3. Respondent issued permit tag number BG341-25 to Petitioner. Although Petitioner used the Cotee River sign to generate advertising revenue, Petitioner never displayed any tag numbers on the sign. The tag numbers remained in Petitioner's files until sometime in 1995.

3. Dr. Goluba's Permit

   1. At about the same time that Cotee River went out of business in 1992, Robert L. Goluba, D.D.S., owned property immediately adjacent to Petitioner's property. Prior to March 1993, an unidentified representative of Respondent contacted Dr. Goluba.

   2. The representative told Dr. Goluba that there were two signs on Dr. Goluba's property that were going to be taken down if the sign permits were not renewed. The representative mistakenly identified one of the two signs as the Cotee River sign.

   3. The representative went on to explain that Respondent could avoid the expense of taking down the two signs if Dr. Goluba obtained permits for the signs. Dr. Goluba wanted the advertising revenues and agreed to obtain the necessary permits.

   4. On March 2, 1993, Dr. Goluba applied for a sign permit for the Cotee River sign he mistakenly believed to be located on his property. The application described the sign as an

      "existing" rectangular, metal, monopole sign measuring approximately 10 feet by 24 feet, with its lowest point approximately 18 feet above ground level and its highest point approximately 30 feet above the crown of the road. The application stated that the sign was first erected in May 1987.

   5. Respondent approved the application from Dr. Goluba and mailed the approval to him on March 8, 1993. Respondent listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/M.P. 4.870 in F/N." Respondent incorrectly listed Dr. Goluba's permit in the sign inventory at milepost 4.870.

   6. On March 24, 1993, Respondent issued permit number BG960-35 to Dr. Goluba. Although Dr. Goluba never derived advertising revenue from the Cotee River sign, he did display his permit on the sign.

   7. Dr. Goluba inadvertently failed to pay the fee required to renew the sign permit in 1994 and, therefore, failed to display current permits on the sign. On April 11, 1994, Respondent issued a Notice of Violation, Failure To Display Permit Tag.

4. The New Outdoor Advertising Inspector

   1. In early 1995, a new outdoor advertising inspector assumed responsibility for the territory in which the Cotee River sign was located. On April 11, 1995, the inspector conducted a field inspection to verify the mileposts and signs in the territory for which he was responsible.

   2. The inspector correctly identified the milepost of the Cotee River sign as milepost 4.980. He found no sign subject to regulation by Respondent 4/ located at milepost 5.060.

   3. Milepost 5.060 and 4.980 are approximately 422 feet apart. Relevant law prohibits the location of regulated signs within 1,000 feet of each other. 5/ No exceptions to 1,000 foot prohibition applied to the Cotee River sign.

   4. The inspector concluded that Petitioner had removed the wood sign originally permitted to Cotee River in 1987 and which Respondent had incorrectly listed in its sign inventory as being located at milepost 5.060. On July 12, 1995, Respondent issued to Petitioner a Notice Of Violation -- Removed Sign.

   5. On August 22, 1995, Respondent ordered the revocation of Petitioner's tag permit because Petitioner had allegedly removed the Cotee River sign from milepost 5.060. Respondent never issued a Notice of Violation to Petitioner for failure to display his tag numbers on the Cotee River sign.

   6. Petitioner protested the revocation of its permit and refused to return the permit tags to Respondent. Petitioner requested an administrative hearing.

   7. In the meantime, Dr. Goluba's accountant had inadvertently failed to pay the permit fee for the Cotee River sign. Respondent placed the Cotee River sign on Respondent's "cutdown list" for failure to pay the required fees. On June 20, 1995, Respondent had the Cotee River sign cut down and removed.

      Respondent sent Dr. Goluba a bill in the amount of $4,990 for the cost of cutting the sign down and removing it.

   8. Prior to the date Respondent cut down and removed the Cotee River sign, Petitioner notified the inspector verbally and with written documentation that the sign was owned by Petitioner, located on Petitioner's property, and permitted to Petitioner. The inspector found that Respondent's records did not agree with Petitioner's records. The inspector informed Petitioner that the "cutdown order" came from Tallahassee and there was nothing the inspector could do.

   9. Dr. Goluba's tags were displayed on the Cotee River sign at the time it was cut down and removed. Ms. Maria Passanisi was the broker who managed the sign for Dr. Goluba.

   10. Ms. Passanisi was at the site when the sign was cut down and removed. She protested Respondent's action so vehemently that the police officers regulating traffic at the scene had to intervene to quell the disturbance.

   11. After Respondent cut down the Cotee River sign, Petitioner drove a stick into the ground where the sign had been located and displayed the permit tags for the removed sign on the stick. The tags were displayed on the stick at the time of the hearing.

5. The Computerized Sign Inventory

1. Respondent uses a computer system to maintain its sign inventory. The computer system does not accept the same milepost for two or more regulated signs.

2. When Petitioner applied for its sign permit in 1992, Respondent was required to carry the Cotee River permit in the inventory as a void permit. The computer system would not accept the same milepost for Petitioner's permit and the void Cotee River permit. In order to circumvent the computer system, Respondent's supervisor of property management arbitrarily changed the milepost number entered for the Cotee River permit from milepost 5.060 to milepost 4.970.

3. As late as September 20, 1993, Respondent's computerized sign inventory identified the Cotee River sign as being located at three incorrect mileposts. The inventory located the same sign permitted to Cotee River, Petitioner, and Dr. Goluba, respectively, at mileposts 4.970, 5.060, and 4.870.

4. In 1995, the new outdoor advertising inspector correctly located the Cotee River sign at milepost 4.980. However, he mistakenly assumed that milepost 5.060 was the correct milepost for Petitioner's sign and erroneously concluded that Petitioner had removed its sign.

   CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

6. The burden of proof is on Respondent. 6/ Respondent must show by a preponderance of evidence that Respondent should revoke Petitioner's sign permit because Petitioner removed the Cotee River sign in violation of Section 479.08 and because

   Petitioner failed to properly display its tag permits on the Cotee River sign. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d

   349 (Fla. 1st DCA 1977).

7. On July 12, 1995, Respondent issued to Petitioner a Notice of Violation -- Removed Sign (the "Notice of Violation").

   In relevant part, the Notice of Violation stated:

   Our records indicate that the outdoor advertising sign identified below [at milepost 5.060] no longer exists at the site identified in the permit application.

   * * *

   This is a nonconforming sign and MAY NOT BE RE-ERECTED. Your outdoor advertising sign permit will be revoked by the Department within thirty (30) days from receipt of this notice of violation pursuant to Section 479.08, Florida Statutes. The

   referenced permit tags must be returned to the Department for cancellation.

8. Section 479.08 states, inter alia, that Respondent has the right to revoke Petitioner's sign permit in any case in which Respondent:

   . . . determines that the application . . .

   contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter . . . .

9. The only provisions of Chapter 479 that Petitioner arguably could have violated are the permit requirements in Section 479.07. Section 479.07 does not include a requirement

   that effectively prohibits removal of a sign once it is permitted.

10. Section 479.07(5)(a) does provide that the permit is void if the permittee does not complete construction of the sign within 270 days after the date the permit is issued. However, Section 479.07(5) is inapposite to the facts in this case because construction of the Cotee River sign was completed within 270 days in 1987.

11. The only remaining portion of Section 479.08 which could provide a basis for Respondent's proposed revocation is that portion which refers to a permittee's application. The necessary implication of Respondent's proposed revocation is that Petitioner's alleged removal of its sign renders the information contained in Petitioner's application ". . . knowingly false or misleading . . ." within the meaning of Section 479.08.

12. Respondent failed to show by a preponderance of the evidence that Petitioner removed its sign from its property. No sign ever existed at milepost 5.060. Petitioner's sign was always located at milepost 4.980.

13. The absence of a sign at milepost 5.060 was caused by Respondent. It was not caused by any action taken by Petitioner.

14. In 1987, Respondent erroneously designated the milepost for the Cotee River sign as milepost 5.060. When Petitioner applied for a separate permit in 1992, Respondent compounded its mistake by retaining the erroneous milepost designation of 5.060

    for Petitioner's permit and by arbitrarily assigning an erroneous milepost of 4.970 for the Cotee River permit.

15. When the new inspector found that no sign was located at milepost 5.060, Respondent mistakenly assumed that Petitioner's sign was once located at milepost 5.060 and erroneously concluded that Petitioner had removed the sign.

16. The information in Petitioner's application stating that its sign was located at milepost 5.060 was not ". . . knowingly false or misleading . . ." within the meaning of Section 479.08. At least, the false and misleading nature of the information was not known to Petitioner.

17. Respondent placed the false and misleading information in Petitioner's application when Respondent assigned milepost

    5.060 to the Cotee River sign. Respondent did not know the false and misleading nature of the information. Respondent never figured out that the information was false or misleading and denied the false and misleading nature of the information through the date of hearing.

18. Petitioner did not remove the Cotee River sign from Petitioner's property. Respondent removed the sign when Respondent cut down the sign and removed it because Dr. Goluba failed to pay the renewal fee for the permit.

19. Although Petitioner did not place the permit tags on the sign, Respondent never notified Petitioner of that violation. Not only is Respondent's failure to provide Petitioner with adequate notice of the charges against it a violation of

Respondent's policy, it is a violation of Petitioner's right to due process. Patterson Outdoor Advertising vs. DOT, 651 So. 2d 784 (Fla. 4th DCA 1995).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order finding that Petitioner did not remove the permitted sign and that the permits issued to Petitioner are valid.

DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.

3/ References to mileposts 5.06 and 5.060 refer to the same milepost.

4/ The inspector did find a wood sign at milepost 5.060 maintained by Omni Title Company (the "Omni sign"). The Omni sign was an "on-premise" sign because it was on property owned by Omni Title Company. The inspector concluded that the Omni sign was not the sign permitted in 1987 at milepost 5.060 because Respondent does not permit on-premise signs.

5/ See, Sec. 479.07(9)(a)1.

6/ The parties stipulated that Respondent has the burden of proof and that the style of the case should not be amended.

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephen C. Booth, Esquire Booth and Cook, P.A.

7510 Ridge Road

Port Richey, Florida 34668

Francine Ffolkes, Esquire Department of Transportation

Haydon Burns Building, Mail Station 50 605 Suwannee Street

Tallahassee, Florida 32399-4458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002771

Orders for Case No: 96-002771