STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RITE MEDIA ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) Case Nos. 98-4459T

) 98-5068T

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

) WILLIAM AND DEBRA FARKUS, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, these matters were heard on August 17, 1999, in Clermont, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrew B. Thomas, Esquire

Post Office Box 4961 Orlando, Florida 32802-4961

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenors: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

STATEMENT OF THE ISSUE

Whether Petitioner's applications for two outdoor advertising signs in Sumter County, Florida, should be approved.

PRELIMINARY STATEMENT

By applications dated August 4, 1998, Petitioner, Rite Media Enterprises, Inc., sought the issuance of state sign permits on two parcels of property located in Sumter County, Florida. By separate Notices of Denied Application dated August 24, 1998, Respondent, Department of Transportation, advised Petitioner that the two applications had been denied on the ground that the applicant had not obtained the land owners' permission. As an additional ground, one application was denied because the "[s]ign does not meet spacing requirements."

Petitioner thereafter requested a formal hearing to contest the agency's decisions. The two matters were forwarded by Respondent to the Division of Administrative Hearings on October 7 and November 10, 1998, and were assigned Case

Nos. 98-4459T and 98-5068T, respectively. At the request of the parties, the cases were later consolidated. On January 28, 1999, Intervenors, William and Debra Farkus, who are the owners of the property where the signs will be located, were authorized to intervene in these cases.

Prior to consolidation, the two cases were separately set for final hearing on February 15 and March 9, 1999. After consolidation, both cases were continued, and the parties agreed

to reschedule the matters to August 17, 1999, in Clermont, Florida. On August 10, 1999, the cases were transferred from Administrative Law Judge P. Michael Ruff to the undersigned.

At the final hearing, Petitioner presented the testimony of Dan Hucke, its real estate representative, and Michael D. Dollery, an agency outdoor advertising inspector. Also, it offered Petitioner's Exhibits 1-4. All exhibits were received in evidence. Respondent presented the testimony of Michael D. Dollery, an outdoor advertising inspector, and Lynn Holschuh, state administrator for outdoor advertising. Also, it offered Respondent's Exhibits 1-3. All exhibits were received in evidence. Both Intervenors testifed on their own behalf.

The Transcript of the hearing was filed on September 1, 1999. Proposed Findings of Fact and Conclusions of Law were filed by Intervenors, Respondent, and Petitioner on September 3, 7, and 9, 1999, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this permitting dispute, Petitioner, Rite Media Enterprises, Inc., seeks the issuance of two state sign permits from Respondent, Department of Transportation (DOT). In preliminary decisions dated August 24, 1998, DOT denied the applications on the ground the land owners had not given

   Petitioner permission to place the signs on their property. As an additional ground, DOT alleged that one sign violated the spacing requirements by being "[i]n conflict with a[n] existing permitted sign." Petitioner contends, however, that it has two legally enforceable leases with the property owners, and that its applications should be approved.

2. If the applications are approved, the signs would be placed on two parcels of property near Interstate 75 in Sumter County, Florida, one on the east side and one on the west side of the highway. Both parcels are owned by Intervenors, William and Debra Farkus.

3. On July 29, 1998, Dan Hucke, a real estate representative for Petitioner, was "scouting" for suitable billboard locations and decided that Intervenors' property would be a desirable location. After Hucke discussed the matter with Intervenors, the parties agreed to execute lease agreements that day for the two parcels of property in question. A copy of the lease agreements is found in Petitioner's Exhibits 1 and 2 received in evidence.

4. In Hucke's presence, both Debra and William Farkus executed each lease agreement and a Notice of Lease. The documents reflect that only one person, Hucke, served as a witness. Hucke then carried the agreements to Petitioner's president, who executed the agreements on behalf of the

   corporation. In addition, Hucke's wife, a notary public, placed her seal on the Notice of Lease indicating that the signatures had been signed in her presence after an oath was administered to the lessors. Intervenors were not present when the documents were notarized.

5. The day after the documents were executed, Debra Farkus contacted Hucke by telephone. Hucke told her he would be in the area the following Monday (August 2) and they could "work out" any problems she might have with the agreements. The same day (July 30), Debra Farkus faxed a handwritten letter to Hucke advising him to "[c]ancel the lease as per our conversation immediately," and to not "record them as per our conversation."

6. After receiving the cancellation notice, Hucke met briefly with the Intervenors, but contended at hearing that he could not recall the substance of that conversation. On the other hand, William Farkus testified that in that meeting he again reiterated his desire for the agreements to be cancelled. In any event, Hucke acknowledged that he left the meeting with the impression that the Intervenors objected to the agreements.

7. Despite receiving the foregoing notice and oral advice from Intervenors, Hucke nonetheless believed he had valid leases. Whether he recorded the leases is not of record. However, he promptly filed two applications for sign permits with the DOT, and he enclosed a copy of the lease agreements to evidence the fact that he had the permission of the property owners.

8. When a DOT inspector conducted a preliminary investigation of the applications, he learned that Intervenors did not consent to having the signs on their property. Under long-standing DOT policy (since at least 1992), when this type of dispute occurs, which the inspector says happens "[a]ll the time," it requires that the applicant either submit an affidavit (or present testimony at a hearing) evidencing the fact that the property owners have consented to the placement of a sign on their property, or submit an order of a circuit court reflecting that the lease agreement is enforceable.

9. Where a dispute such as this occurs, in no circumstance does DOT attempt to construe the legal sufficiency of a lease agreement or adjudicate the rights of a party under a lease agreement. The foregoing policy is applied by the agency on a statewide basis, without discretion, and it has a logical and rational basis, particularly since an administrative agency lacks jurisdiction to construe contracts or make property-right determinations.

10. At the hearing, Intervenors again stated that they did not authorize Petitioner to place its signs on their property. In addition, Petitioner did not submit a court order indicating that enforceable leases between the parties existed.

11. DOT presented testimony which established that the proposed sign location in Case No. 98-4459T would violate statutory spacing requirements because the location conflicted

    with an existing nearby sign. There was no evidence to contradict this assertion.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (Supp. 1998).

13. As the party seeking a state sign permit, Petitioner bears the burden of proving entitlement to a permit by a preponderance of the evidence. Fla. Dep't of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

14. Section 479.07(7), Florida Statutes (1997), requires that a "permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site." Stated more plainly, an applicant must have the permission of the property owner in order to place a sign on his or her property.

15. Where a dispute arises between the property owner and the applicant as to whether permission to place a sign has been granted, DOT utilizes its long-standing policy (since at least 1992) of requiring the applicant to submit an affidavit (or adduce proof at hearing) that such permission exists, or to submit a court order indicating that the parties have an enforceable agreement. This policy is logical and has a rational basis, especially since an administrative agency has no authority to construe and interpret documents affecting the property rights

    of parties. Compare Point Mgmt., Inc. v. Dep't of Bus. Reg., 449 So. 2d 306, 307 (Fla. 4th DCA 1984)("courts rather than administrative bodies construe contracts"). Since no extrinsic proof of the owners' consent was submitted at hearing, and the policy was not shown to be lacking in logic or reason, the applications should be denied for that reason. Further, the application in Case No. 98-4459T should also be denied since the proposed sign would violate the spacing requirements imposed by Sections 479.07(9)(a)1. and 2., Florida Statutes.

16. Citing Flamingo Lake RV Resort, Inc. v. Dep't of Transportation, 599 So. 2d 732 (Fla. 1st DCA 1992), Petitioner contends that DOT cannot use an unpromulgated rule to deny a permit. It further contends that under Section 120.54(1), Florida Statutes, DOT is obliged to institute rulemaking proceedings to adopt the agency statement as a rule. Neither DOT nor the Intervenors have responded to these contentions.

17. The cited case is not found to be persuasive or directly on point. In Flamingo Lake, an applicant sought a permit under an existing rule to place a logo sign at an I-295 interchange in Duval County, Florida. One day after the hearing, but before the Recommended Order was entered, the rule was amended, and it eliminated the applicant's eligibility for a permit. Consistent with well-established law, the hearing officer concluded that the new rule applied, and thus the application should be denied. In agreeing with the result only,

    DOT concluded that the amended rule did not apply retroactively, but that under incipient nonrule policy in effect for at least the preceding four years, and which barred logo signs at any interchange on I-295, the application should be denied. In reversing DOT's final order, the court found no evidence or rationale to support the nonrule policy, and no authority for DOT to adopt a nonrule policy which contravened a legally promulgated rule. Applying those narrow holdings to this case, it is concluded that there is a logical and rational basis for the policy, as set forth in paragraph 15, and the policy does not contravene an existing statute or rule. Indeed, Section 479.07(7), Florida Statutes, merely requires that the applicant present proof that the property owner has consented to having a sign placed on his property; the policy implements that requirement when factual disputes involving consent arise.

18. Finally, Petitioner contends that before it can implement its policy, DOT must initiate rulemaking proceedings and formally adopt a rule. But in order to bar an agency from making a decision based on an unadopted rule, a party must plead and then use the additional procedures that are in place under Section 120.57(1)(e), Florida Statutes (Supp. 1998). In this case, the pleadings do not reflect that Petitioner intended to use these additional procedures, and even if it had, there was no evidentiary showing that the unadopted rule was unlawful.

RECOMMENDATION

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

RECOMMENDED that the Department of Transportation enter a Final Order denying the applications for state sign permits filed by Petitioner.

DONE AND ENTERED this 16th day of September, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1999.

COPIES FURNISHED:

Thomas F. Barry, Secretary Department of Transportation

ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

Andrew B. Thomas, Esquire Post Office Box 4961 Orlando, Florida 32802-4961

Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Pamela S. Leslie, General Counsel Department of Transportation

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

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.

Docket for Case No: 98-004459

Orders for Case No: 98-004459