STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

LAMAR ADVERTISING COMPANY,

Petitioner,

vs. DOAH CASE NO.: 98-4460T

DOT CASE NO.: 98-0194

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

This proceeding was initiated by a Request for Formal Administrative Hearing filed by Petitioner, LAMAR ADVERTISING COMPANY (hereinafter LAMAR), on September 14, 1998. The request for administrative hearing was filed in response to a Notice of Denied Application issued by Respondent, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), on August 26, 1998, for its sign proposed to be located on U.S. 98, 0.817 miles west of SR 87, in Santa Rosa County, Florida. The Notice of Denied Application was issued because its sign does not meet the spacing requirement for Santa Rosa County.

The matter was referred to the Division of Administrative Hearings (hereinafter "DOAH") on October 7, 1998. On October 14, 1998, DOAH issued its Initial Order assigning the case to Diane Cleavinger, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties.

The hearing was conducted in Milton, Florida, on June 22, 1999, before Diane Cleavinger, Administrative Law Judge.

Appearances on behalf of the parties were as follows:

For Petitioner: G.R. Mead, II, Esquire

Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone

125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010

For Respondent: Sheauching Yu, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

At the hearing, LAMAR introduced four exhibits into evidence, and presented the testimony of one witness. The DEPARTMENT introduced two exhibits into evidence, and presented the testimony of one witness. A transcript was prepared and filed subsequent to the hearing. On October 7, 1999, the Administrative Law Judge issued her Recommended Order.

Exceptions to the Recommended Order were filed by LAMAR on October 22, 1999, and the DEPARTMENT'S response was filed on October 28, 1999. The DEPARTMENT'S exceptions to the Recommended Order were filed on October 22, 1999.

STATEMENT OF THE ISSUE

As stated by the Administrative Law Judge in her Recommended Order, the only issue presented is: "whether the Department of Transportation properly denied Petitioner's permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817 miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes."

BACKGROUND

On August 26, 1998, the DEPARTMENT issued a Notice of Denied Application to LAMAR because its proposed sign does not meet the spacing requirement for Santa Rosa County.

LAMAR contested the DEPARTMENT'S notice, asserting that the DEPARTMENT had improperly denied LAMAR'S application for new permits. After referral of the matter to DOAH, LAMAR filed an "Amended Request for Formal Proceeding" on or about October 9, 1998, challenging the legal basis for the DEPARTMENT'S cancellation of LAMAR'S permit nos. AE682-6 and BL265-35 (the "old permits"). On or about June 10, 1999, LAMAR filed an "Amended Petition" purporting to challenge certain DEPARTMENT statements as unpromulgated rules. No order was entered authorizing the amended petition, and no evidence was offered by LAMAR in support of the allegations of LAMAR'S Amended Petition. As to the amended request, LAMAR failed to challenge that the sole issue to be presented and decided by the Administrative Law Judge was whether the DEPARTMENT properly denied LAMAR'S permit application for the new location.

LAMAR'S EXCEPTIONS TO THE RECOMMENDED ORDER

LAMAR'S first exception is to the Administrative Law Judge's Conclusions of Law in general. LAMAR claims that the existence of Salter's state permits does not conflict with issuance of LAMAR'S new state permits as a matter of law, and does not

require the DEPARTMENT to refrain from issuing new permits to LAMAR under Section 479.15, Florida Statutes.

Section-479.15(1), Florida Statutes, provides:

No zoning board or commission or other public officer or agency shall issue a permit to erect any sign which is prohibited under the provisions of this chapter or the rules of the department, nor shall the department issue a permit for any sign which is prohibited by any other public board, officer, or agency in the lawful exercise of its powers. (emphasis added)

The statute prohibits the DEPARTMENT from issuing LAMAR permits for the proposed sign location, which was found by the Administrative Law Judge to be prohibited by Santa Rosa County. LAMAR did not provide at the hearing or in its exceptions any basis in law or fact upon which the DEPARTMENT could ignore the requirements of Section 479.15(1), Florida Statutes, and issue permits for its proposed sign. Without any basis for its conclusion, in that regard, LAMAR'S first exception must be rejected.

LAMAR'S first exception is rejected.

LAMAR further supports its exception to the Administrative Law Judge's Conclusions of Law with the following:

1. LAMAR argues that had the DEPARTMENT acted with full knowledge of the facts as set forth in the Recommended Order, LAMAR'S original permits would not have been cancelled, and Salter's application for new permits at LAMAR'S old location would have been denied.

   
   

2. If the Salter permits had not been issued, no basis in fact would have existed to deny LAMAR'S application for new permits at the conflicting location.

   
   

3. If LAMAR'S new permits had been issued, they would necessarily have had an effective date earlier than that of any Salter permits that might thereafter be issued, for the old location, if they could have been issued at all.

   
   

4. The actual placement of a sign in a permitted location is legally distinguished from the issuance of the permit for a sign at that location.

5. The statutory sign spacing requirements are not at issue in this case, since they defer to the County requirements, which are the actual cause of the dispute. Actual erection of a sign in violation of County requirements may be grounds for a subsequent revocation of LAMAR'S new permits, if the signs were to be erected without appropriate County approval, but that cannot be grounds to deny issuance of the permits that, but for the DEPARTMENT'S improper cancellation, should have been granted much earlier.

   
   

6. Pursuant to Santa Rosa Land Development Code § 8.07.01(I), earlier dated permits are not in conflict with later dated permits, and therefore no reason for denial of LAMAR'S State DEPARTMENT permit exists under Section 479.15, Florida Statutes, if LAMAR is granted new permits nunc pro tunc of a date earlier than the existing Salter permits.

These arguments are not only irrelevant to the only issue in this proceeding, which is the propriety of the DEPARTMENT'S denial of LAMAR'S permit application, but ignore the mandates of Chapter 479, Florida Statutes.

LAMAR'S exception is rejected.

THE DEPARTMENT'S EXCEPTIONS TO THE RECOMMENDED ORDER

The DEPARTMENT'S first exception is to the Administrative Law Judge's recommendations which are not relevant to the issue under review. Whether the DEPARTMENT properly cancelled LAMAR'S old permits, and whether the DEPARTMENT properly issued Salter its permits are separate final agency actions. LAMAR filed no request for hearing regarding those actions, they were not designated by the DEPARTMENT or the Administrative Law Judge as issues to be decided in this proceeding, and the record does not establish that those issues were tried by consent. Fla. R. Civ. P 1. l90(b); Maples v. Dep't of Transp., 588 So. 2d 25, 26 (Fla. 1st DCA 1991).

While LAMAR attempted to amend its petition to challenge the basis for the DEPARTMENT'S cancellation of its original permits, no request for reinstatement of those permits was ever made to the DEPARTMENT, no request for reinstatement was made by LAMAR at any time during the course of this proceeding or during the hearing, and no request for reinstatement or prayer for such relief was requested in LAMAR'S Proposed Recommended Order. In addition, LAMAR offered no exception to the Administrative Law Judge's statement in her Recommended Order that the only issue to be addressed was "whether the Department of Transportation properly denied Petitioner's permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817

miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes." Failure to make timely, contemporaneous objections constitutes waiver. Fravel v. Haughey, 727 So. 2d 1033 (Fla. 5th DCA 1999).

The Administrative Law Judge's recommendation that LAMAR'S old permits be reinstated was not an issue in this proceeding, LAMAR never filed a request for reinstatement, such relief was not requested by LAMAR, and there is no statutory authority for reinstatement under the facts of this case. As such, the issue of whether LAMAR'S old permits should be reinstated is beyond the scope of this proceeding, and the Administrative Law Judge's recommendation in that regard is beyond the scope of her authority and contrary to law.

The DEPARTMENT'S first exception is accepted

The DEPARTMENT'S second exception is to the Administrative Law Judge's Finding of Fact No. 7, that the DEPARTMENT had recognized LAMAR'S established practice of seeking conditional cancellations. This finding is not only not relevant to this proceeding, but is not supported by the competent substantial evidence in the record. Pursuant to Section 120.57(1)(j), Florida Statutes, "[findings of fact shall be based upon a preponderance of the evidence, . . . and shall be based exclusively on the evidence of record and on matters officially recognized."

On April 2, 1998, LAMAR removed its outdoor advertising structures corresponding to the old permits, LAMAR destroyed said permit tags, and, shortly thereafter, LAMAR provided a certification to that effect to the DEPARTMENT, requesting cancellation of said permits. In April 1998, when the DEPARTMENT cancelled LAMAR'S old permits, the term "conditional cancellation" did not exist in Chapter 479, Florida Statutes, or in Rule 14-10, Florida Administrative Code. Moreover, neither Chapter 479, Florida Statutes, nor Rule 14-10, Florida Administrative Code, requires a permittee to cancel its existing permits before submitting new applications for a site in spacing conflict with the existing site. The law does not require and the record reflects that the DEPARTMENT does not require a notice of cancellation to be filed with an application for a permit for a- sign which will be in spacing conflict with an existing sign.

While the record reflects that conditional cancellation was a practice of the outdoor advertising industry, a practice that was recognized by the DEPARTMENT, the record reflects the practice was: "if a Department's district office received cancellation certifications for old permits together with applications for new permits from a permittee, and the Department

denied the new application, the whole packet would be returned to the permittee. The permittee's old permits would not be canceled because the district office would have returned the cancellation certification to the permittee along with the incomplete or denied application. If the district office approved the new applications and forwarded the whole packet to the central office for issuance of the new permits, only then would the permittee's old permits be canceled by the central office." (T.21, 36-37,

40-41)1 The DEPARTMENT established that by sending the original cancellation certification to the district office, the permittee could preserve its old permits until its new permits are approved because it is the function of the DEPARTMENT'S central office to cancel and issue permits.

LAMAR, on the other hand, testified that it had a practice different from the industry practice recognized by the DEPARTMENT. The record establishes that it was LAMAR'S practice to send, on the same day, the original cancellation certification for the old permits to the DEPARTMENT'S central office, and the application for new permits to the DEPARTMENT'S district office with a copy of the cancellation certification, but without any instructions requesting conditional cancellation to either office. There is no evidence that anyone but LAMAR followed this practice.

LAMAR'S representative acknowledged that by sending cancellation certifications to the central office, without any instructions as to the purpose of the cancellation, LAMAR'S old permits would be canceled independent of its new permit applications, but LAMAR never found this to be a problem until the instant case. As such, the record reflects that LAMAR'S cancellation certifications for its old permits were processed by the DEPARTMENT'S central office on April 7, 1998, in accordance with the DEPARTMENT'S normal business practice. LAMAR provided no additional information or instruction to the DEPARTMENT with its cancellation certification and LAMAR did not advise the DEPARTMENT'S central office that the request to cancel was related to a pending application. LAMAR'S application packet for the new site was returned to LAMAR by the district office on April 24, 1998, because the information LAMAR provided was not complete. LAMAR admits that other than providing a copy of the cancellation certification with its application for permits at the new site, it did not notify the DEPARTMENT'S district office that the application was conditioned upon the cancellation of its old permits.

The record is devoid of any evidence to support even one successful conditional cancellation under the procedure LAMAR described. As such, LAMAR'S evidence was neither competent nor substantial. Moreover, as addressed below, LAMAR'S own

admissions refute and negate its claim that it relied on the alleged procedure it had established with the DEPARTMENT.

The DEPARTMENT'S second exception is accepted.

The DEPARTMENT'S third exception is to the Administrative Law Judge's Finding of Fact No. 8, that LAMAR reasonably believed, based on its previous experience with the policy of conditional cancellation, that existing permits would not be cancelled until the new permits were granted.

While this finding is not relevant to this proceeding, it must be addressed because it is directly contrary to record and to the testimony of LAMAR'S representative. The record reflects that LAMAR submitted its old permits for cancellation to the DEPARTMENT'S central office with full knowledge that the old permits would be cancelled independent of and prior to the approval of the new permits. LAMAR'S representative admitted:

Q: What happens if the Department can't issue that one [a new permit for a location down the street] and then you've already canceled your old permits?

A: Then I have to move some place else. But in most cases everything is okay and you don't have that problem. (T.54)

The Administrative Law Judge's statement that LAMAR reasonably believed that its old permits would not be cancelled until the new permits were granted is refuted by LAMAR'S own testimony, and is not supported by any evidence, let alone competent substantial evidence. LAMAR'S testimony in this regard is an admission that it was well aware that what could happen under the procedure it chose did happen. Thus, this is not a credibility issue. See Heifitz v. Dep't of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

The DEPARTMENT'S third exception is accepted.

The DEPARTMENT'S fourth exception is to the last two statements of the Administrative Law Judge's Finding of Fact No.

9 that LAMAR'S permit application was not logged into the DEPARTMENT'S computer, and that although the DEPARTMENT'S Chipley office knew the old permits were to be cancelled, it did not notify the Tallahassee office of the return of LAMAR'S application or the lack of approval of the application.

Although these findings are not relevant to this proceeding, they must be addressed because the record is devoid

of any evidence to support a finding that the DEPARTMENT logged applications into the DEPARTMENT'S computer. Findings not supported by competent substantial evidence cannot stand and cannot be relied upon to support subsequent findings, conclusions of law, or recommendations.

There is no evidence to support a finding that LAMAR requested a conditional cancellation. In fact, the only evidence is to the contrary, LAMAR did not indicate at any time or in any manner that its cancellation request was conditional. On April 24, 1998, the day the district office determined that LAMAR'S application was incomplete, the old permits were already cancelled. LAMAR was well aware that the cancellation of permits and the granting of new permits are separate and independent functions and chose to submit them separately and without regard to any notification to the DEPARTMENT of their relatedness. Any obligation to relate the two actions or to handle them as related was upon LAMAR, not the DEPARTMENT. This was an obligation of which LAMAR fully understood the consequences: "I [would] have to move some place else."

The DEPARTMENT'S fourth exception is accepted.

The DEPARTMENT'S fifth exception is to the Administrative Law Judge's Finding of Fact No. 10 that the DEPARTMENT did not follow its policy of conditional cancellation on which LAMAR had relied for a number of years. Only LAMAR testified as to this alleged policy, and it is LAMAR'S own evidence that refutes a conclusion that the DEPARTMENT acted contrary to what LAMAR believed to be the "policy:"

Q: What happens if the Department can't issue that one la new permit for a location down the street] and then you've already canceled your old permits?

A: Then I have to move some place else. But in most cases everything is okay and you don't have that problem. (T.54)

Rule 14-10.004, Florida Administrative Code (amended 6-28- 98), provides in pertinent part:

(8) Conditional Permit Cancellation. In instances where an applicant requests cancellation of one permit in order to obtain a new permit, the existing permit shall be canceled simultaneously with the issuance of the new permit. (emphasis added)

The DEPARTMENT'S rule was silent on the procedure for conditional cancellation before June 28, 1998. However, the DEPARTMENT presented evidence that prior to the rule change, an applicant would, in some manner, notify the DEPARTMENT that it was submitting a conditional cancellation. Although LAMAR'S evidence was that since the early 1980's it had not included a request of the DEPARTMENT to not cancel its old permits until the new application is approved, LAMAR admitted that it was well aware of the consequences of failing to advise the DEPARTMENT that a cancellation is related to a pending permit application: "I [would] have to move some place else."

The DEPARTMENT also takes exception to the AdministMtive Law Judge's finding in Findings of Fact No. 10, that the DEPARTMENT knew LAMAR'S application for new permits clearly conflicted with the cancelled permits. This finding is not relevant to the proceeding and it does not accurately reflect the competent substantial evidence in the record. The record reflects that LAMAR'S application was incomplete and was not considered a valid application when submitted, and that the DEPARTMENT did not substantively act upon the application at that time.

The record also reflects that LAMAR'S request to cancel its old permits, without any instruction or clarification, was processed by the central office under normal business practice and that LAMAR knew and understood both entral office's function in that regard and the consequences of cancellation of old permits prior to approval of a new application. LAMAR knew its old permits could be canceled before the issuance of the new permits under the practice it chose to use, but LAMAR was not concerned because it did not expect the application would not be approved by the DEPARTMENT. As such, LAMAR failed to take precautions against a competing sign company stepping in to obtain the location of its canceled permits. The DEPARTMENT has no duty or obligation to look after the interests of competing sign companies, the DEPARTMENT cannot act beyond its legal authority, and the DEPARTMENT cannot treat applicants disparately or look out for the interests of one applicant over another. By LAMAR'S own admission, neither the DEPARTMENT'S central office nor its district office had knowledge that LAMAR'S cancellation was to be conditional because LAMAR never told the DEPARTMENT. LAMAR'S own lack of reasonable care was the reason its old permits did not remain in effect until its application for the new location was approved.

The DEPARTMENT'S fifth exception is accepted.

The DEPARTMENT'S sixth exception is to the Administrative Law Judge's Conclusion of Law No. 18, that the DEPARTMENT

violated its established practice of conditional cancellation when it cancelled LAMAR'S old permits before issuing the new permits LAMAR had applied for.

This conclusion is not only irrelevant to this proceeding, but is also erroneous because the DEPARTMENT followed the outdoor advertising industry's established practice of conditional cancellation, which the DEPARTMENT recognized. LAMAR offered no evidence that the industry's practice is other than as testified to by the DEPARTMENT; LAMAR merely testified as to its own practice and offered no testimony that any other entity in the outdoor advertising industry followed the practice LAMAR established and followed.

The DEPARTMENT'S sixth exception is accepted.

The DEPARTMENT'S seventh exception is to the Administrative Law Judge's Conclusions of Law No. 18 and 19, wherein she concluded that LAMAR is entitled to reinstatement of its old permits and that the DEPARTMENT should reinstate LAMAR'S old permits.

This ruling is not relevant to the proceeding and is contrary to Section 479.07(8)(b), Florida Statutes, which provides the conditions for reinstatement of permits erroneously cancelled. One of such conditions is that the sign has not yet been disassembled by the permittee. LAMAR certified to the DEPARTMENT and admitted in its responses to the DEPARTMENT'S requests for admissions that the sign structure bearing LAMAR'S old permits was removed by LAMAR in early April, 1998.

Reinstatement of LAMAR'S existing permits would also violate Section 479.08, Florida Statutes, and Rule 14-10.004(9), Florida Administrative Code, which require a permittee to submit a petition for reinstatement before reinstatement can be considered. LAMAR has not petitioned for reinstatement.

Conclusions of Law 18 and 19 conflict, are internally inconsistent, and require the DEPARTMENT to violate Section 479.07(9)(a), Florida Statutes, and Santa Rosa County spacing requirements and Land Development Code. Conclusion of Law 18 concludes that "Salter, who is not a party to this action, has been granted and obtained through legal avenues, permits which obstensibly conflict with the existing (sic) permits and would clearly conflict with the new permits." Section 479.07(6), Florida Statutes, provides that a permit is valid only for the location specified in the permit. If reissued, LAMAR'S old permits would be for the location of Salter's sign, and the property owner has leased that location to Salter. The Administrative Law Judge erred in concluding and recommending that the DEPARTMENT reinstate LAMAR'S old permits. The

DEPARTMENT cannot reinstate LAMAR'S old permits because to do so is inconsistent with the Administrative Law Judge's finding that LAMAR'S old permits conflict with existing legally acquired permits and because to do so is contrary to Florida law.

The DEPARTMENT'S seventh exception is accepted.

FINDINGS OF FACT

After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact found in paragraphs 1-6 and 11-16 of the Recommended Order are accepted; Findings of Fact found in paragraphs 7-10 regarding LAMAR'S practice of cancelling permits, the DEPARTMENT'S acceptance of LAMAR'S practice, and the handling of LAMAR'S request to cancel its existing permits are rejected as not supported by competent substantial evidence. Findings of Fact 1-

6 and 11-16 and portions of Findings of Fact 7-10 not rejected herein are accepted, adopted, and incorporated by reference as if fully set forth herein.

CONCLUSIONS OF LAW

1. The DEPARTMENT has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Chapters 120 and 339, Florida Statutes.

   
   

2. Conclusion of Law No. 17 of the Recommended Order is accepted, adopted, and incorporated herein by reference as if fully set forth herein.

   
   

3. Conclusion of Law No. 18 is rejected in its entirety and the conclusions contained in the last sentence of Conclusion of Law No. 19 are rejected as not supported in law.

   
   

4. Conclusion of Law No. 17 and those portions of Conclusion of Law No. 19 not otherwise rejected herein, are accepted, adopted, and incorporated by reference as if fully set forth herein.

   
   

5. The recommendation of the Administrative Law Judge is rejected as unsupported by the record or the law.

ORDER

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

ORDERED that subject to the above limitations and exclusions, the Administrative Law Judge's Recommended Order is hereby adopted. It is further

ORDERED that the Petitioner, LAMAR ADVERTISING COMPANY'S, permit application is denied.

DONE AND ORDERED this 3rd day of January, 2000.

THOMAS F. BARRY, JR., P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399 ENDNOTE

1/ References to the transcript of the June 22, 1999, hearing will be in the form of (T.) followed by the appropriate page number(s).

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES

9.110 AND 9.190, 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.

Copies furnished to:

Sheauching Yu, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Diane Cleavinger Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399

G.R. Mead, II, Esquire

Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone

125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010

Vicki Davis

District Three ODA Administrator Post Office Box 607

Chipley, Florida 32428-0250

Juanice Hagan

605 Suwannee Street, MS 22 Assistant State Right of Way

Manager for Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0422

Docket for Case No: 98-004460

Orders for Case No: 98-004460