08-001137 Lamar Of Tallahassee vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, July 16, 2008.

Summary: Respondent asserted that a billboard owned by Petitioner required a permit. Held: the billboard required a permit but was ineligible to receive one.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR OF TALLAHASSEE, )

)

Petitioner, )

)

vs. ) Case Nos. 08-1136

) 08-1137

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on June 12, 2008, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

STATEMENT OF THE ISSUE

The issue is whether a billboard structure is in compliance

with Chapter 479, Florida Statutes.

PRELIMINARY STATEMENT

This case involves a large billboard (the sign) located at

the northeast corner of the intersection of Betton Road and

Thomasville Road in Tallahassee, Florida. It is owned by Lamar

of Tallahassee (Lamar).

In a "Notice of Violation-Illegally Erected Sign," dated

March 14, 2007, the Florida Department of Transportation

(Department) informed Lamar that a sign advertising Women's

World, was in violation of Section 479.01, Florida Statutes.

The Notice further informed Lamar that an outdoor advertising

permit was required for the sign, but a permit had not been

issued.

Section 479.01, Florida Statutes, is a list of definitions.

It is not a statute that may be violated.

This case was assigned Department case number 07-034 and

Division of Administrative Hearings case number 08-1136.

Subsequently, in a letter dated December 14, 2007, Lamar

submitted an application to the Department requesting a permit

for the billboard. In a document entitled "Denied Application,"

the Department informed Lamar that their application for a

permit was denied pursuant to Subsection 479.07(9)(a), Florida

Statutes. This section prohibits a permit for a sign located

1,000 feet from any other permitted sign on the same side of a

Federal-Aid Primary highway. This case was assigned Department

case number 08-021 and Division of Administrative Hearings case

number 08-1137.

In both cases Lamar requested an administrative hearing.

The cases, and another that was subsequently withdrawn, were

forwarded to the Division of Administrative Hearings on March 5,

2008. Case numbers 08-1136 and 08-1137 were consolidated for

hearing on March 12, 2008. The cases were set for hearing, and

subsequent to three continuances granted at Lamar's request, the

cases were heard on June 12, 2008.

During the hearing, Lamar moved to dismiss case number

07-1136, because the "Notice of Violation-Illegally Erected

Sign" cited Section 479.01, Florida Statutes, as the basis for

the violation. As noted herein, one cannot violate Section

479.01, Florida Statutes, by failing to have a permit for a

sign. However, the text of the "Notice of Violation-Illegally

Erected Sign" stated that, "This sign is illegal and must be

removed within 30 days from the date of this Notice, pursuant to

s. 479.105, Florida Statutes."

Subsection 479.105(1), Florida Statutes, provides that:

(1) Any sign which is located adjacent to

the right-of-way of any highway on the State

Highway System outside an incorporated area

or adjacent to the right-of-way on any

portion of the interstate or federal-aid

primary highway system, which sign was

erected, operated, or maintained without the

permit required by s. 479.07(1) having been

issued by the department, is declared to be

a public nuisance and a private nuisance and

shall be removed as provided in this

section.

The Department, when attempting to enforce a statute that

could cause substantial financial costs on a citizen, ought to

state its intentions and its basis for the action with

specificity. The failure to do so could result in a dismissal.

In this case however, the error, alleged by the Department's

counsel to be a scrivener's error, was not so serious as to

mislead Lamar as to the intentions of the Department. Indeed,

the Petition for Formal Administrative Hearing, as well as the

discovery accomplished in the case, reveals that Petitioner was

well informed as to the nature of the controversy and the

governing statutes.

Lamar filed a Proposed Recommended Order that argued that a

recommended order of dismissal should issue in the case because

of the incorrect statutory citation. Respondent filed

Department of Transportation's Response to Motion to Dismiss.

Lamar filed Petitioner's Answer to Department's Response to

Motion to Dismiss. The matters stated in the Proposed

Recommended Orders, Department of Transportation's Response to

Motion to Dismiss, and Petitioner's Answer to Department's

Response to Motion to Dismiss, and the cases cited, were

considered in arriving at the conclusion that a recommended

order of dismissal should not issue.

At the hearing, Respondent presented the testimony of two

witnesses and offered 12 exhibits into evidence. Lamar did not

present any testimony and offered no exhibits.

During the hearing, Lamar withdrew its petition in Case

No. 08-1137 that challenged the denial of the permit

application. For that reason, it will be recommended that case

be dismissed.

A transcript was filed on June 19, 2008. After the

hearing, Petitioner and Respondent filed their Proposed Findings

of Fact and Conclusions of Law on June 30, 2008. In the

Proposed Recommended Order of Respondent, Department of

Transportation, there is found the following statement:

"References to Lamar's pre-hearing report, agreed upon by the

Department, will be as PHR, followed by the page number." No

Pre-hearing report is in the record.

However, Lamar filed a Proposed Pre-Hearing Report and an

Amended Proposed Pre-Hearing Report. In the Department's

Proposed Recommended Order there are references to "LHR" and

page numbers and subparagraph numbers. These references are

deemed to refer to Lamar's Proposed Pre-Hearing Report because

they coincide with the facts contained therein. In other words,

if the factual assertions in the Department's Proposed

Recommended Order coincide with facts set forth in Lamar's

Proposed Pre-Hearing Report, then they are deemed facts in this

Recommended Order.

References to statutes are to Florida Statutes (2007)

unless otherwise noted.

FINDINGS OF FACT

1. The Department is the state agency responsible for

regulating outdoor advertising signs located within 660 feet of

the nearest edge of the State Highway System, interstate, or

Federal-Aid Primary system in accordance with Chapter 479,

Florida Statutes.

2. Lamar is in the business of providing outdoor signs for

entities wishing to advertise.

3. Lamar owns the sign at the northeast corner of the

intersection of Betton Road and Thomasville Road in Tallahassee,

Leon County, Florida. The sign was built in 1980 and rebuilt in

June 1997. The sign has two sides. One side faces Betton Road,

and is visible only to persons on Betton Road. The Department

does not assert that a permit is required for that side.

4. The other side of the sign, facing to the west, is

within 660 feet of Thomasville Road, which is also referred to

as State Route 61, and is visible from Thomasville Road.

5. In 1974, State Route 61 was known as U. S. Highway 319.

It was a Federal-Aid Primary route.

6. On June 24, 1974, a road denominated Capital Circle

located on the outskirts of Tallahassee, was designated U.S.

Highway 319. Thomasville Road although no longer a part of U.S.

Highway 319, continued to bear the name State Route 61 and

remained a Federal-Aid Primary route.

7. In 1983 the Federal Highway Administration listed both

Capital Circle and State Route 61 as Federal-Aid Primary routes.

8. In 1991, the Federal Highway Administration created the

National Highway System and ceased using Federal-Aid Primary

designations. State Route 61, also known as Thomasville Road,

nevertheless remained a Federal-Aid Primary road for outdoor

advertising classification purposes at all times pertinent to

this case. For federal highway identification purposes, the

road is currently in the Surface Transportation Program.

9. Prior to May 23, 1996, Lamar held an outdoor

advertising permit pursuant to Section 479.07, Florida Statutes,

for this sign. The sign was assigned tag number BG 518-35.

10. On May 23, 1996, the Department issued a "Notice of

Violation--Signs for Which Permits Have Been Issued," addressing

permit number BG 518-35. This notice indicates that it was sent

to Lamar via registered mail, return receipt requested. It

informed that the sign was in violation of Chapter 479, Florida

Statutes, or Florida Administrative Code Chapter 14-10 because

the sign: "May not be maintained without permission of the

person lawfully controlling site (479.11(9), FS)."

11. On July 31, 1996, in a letter signed by District

Outdoor Advertising Manager Vicki L. Davis, the Department

notified Lamar that, because the Department had received a

statement of loss of landowner's permission for the sign bearing

tag number BG 518-35, Lamar was required to remove the sign.

The Department included a "certificate of cancellation" with the

letter.

12. Lamar admits that it voluntarily canceled its permit

for the sign in August 1997. Subsequently, the sign remained

with its permit tag attached, unmolested by the Department for

approximately 11 years.

13. In January 1997, Lamar acquired a separate monopole

structure bearing two signs with tag numbers BN 504 and BN 505.

These signs are less than 200 feet to the north of the subject

sign.

14. During a 2007 inspection, an agent for the Department

observed the subject sign. It still bore tag number BG 518-35.

On March 14, 2007, the Department issued the "Notice of

Violation-Illegally Erected Sign" addressed above. As noted

before, the violation was based on the sign's having no permit.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

16. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceedings. Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) and Balino

v. Department of Health and Rehabilitative Services , 348 So. 2d

349 (Fla. 1st DCA 1977). Accordingly, the burden of proof is on

the Department.

17. The Department is required to show by clear and

convincing evidence that Lamar committed the acts alleged in the

"Notice of Violation-Illegally Erected Sign." See Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987), where it is stated that

"in a case where the proceedings implicate the loss of

livelihood, an elevated standard is necessary to protect the

rights and interests of the accused." See also , Department of

Banking & Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996).

18. Subsection 479.01(17), Florida Statutes, provides as

follows:

479.01. Definitions

As used in this chapter, the term:

* * *

(17) "Sign" means any combination of

structure and message in the form of an

outdoor sign, display, device, figure,

painting, drawing, message, placard, poster,

billboard, advertising structure,

advertisement, logo, symbol, or other form,

whether placed individually or on a V-type,

back-to-back, side-to-side, stacked, or

double-faced display or automatic changeable

facing, designed, intended, or used to

advertise or inform, any part of the

advertising message or informative contents

of which is visible from any place on the

main-traveled way. The term does not

include an official traffic control sign,

official marker, or specific information

panel erected, caused to be erected, or

approved by the department.

19. Section 479.07, Florida Statutes, provides, in part,

as follows:

479.07. Sign permits

(1) Except as provided in ss.

479.105(1)(e) and 479.16, a person may not

erect, operate, use, or maintain, or cause

to be erected, operated, used, or

maintained, any sign on the State Highway

System outside an incorporated area or on

any portion of the interstate or federal-aid

primary highway system without first

obtaining a permit for the sign from the

department and paying the annual fee as

provided in this section. For purposes of

this section, "on any portion of the State

Highway System, interstate, or federal-aid

primary system" shall mean a sign located

within the controlled area which is visible

from any portion of the main-traveled way of

such system.

* * *

(9)(a) A permit shall not be granted for

any sign for which a permit had not been

granted by the effective date of this act

unless such sign is located at least:

1. One thousand five hundred feet from

any other permitted sign on the same side of

the highway, if on an interstate highway.

2. One thousand feet from any other

permitted sign on the same side of the

highway, if on a federal-aid primary

highway.

The minimum spacing provided in this

paragraph does not preclude the permitting

of V-type, back-to-back, side-to-side,

stacked, or double-faced signs at the

permitted sign site.

20. Section 479.105, Florida Statutes, provides in part as

follows:

479.105. Signs erected or maintained

without required permit; removal

(1) Any sign which is located adjacent to

the right-of-way of any highway on the State

Highway System outside an incorporated area

or adjacent to the right-of-way on any

portion of the interstate or federal-aid

primary highway system, which sign was

erected, operated, or maintained without the

permit required by s. 479.07(1) having been

issued by the department, is declared to be

a public nuisance and a private nuisance and

shall be removed as provided in this

section.

* * *

(a) Upon a determination by the

department that a sign is in violation of s.

479.07(1), the department shall prominently

post on the sign face a notice stating that

the sign is illegal and must be removed

within 30 days after the date on which the

notice was posted. However, if the sign

bears the name of the licensee or the name

and address of the nonlicensed sign owner,

the department shall, concurrently with and

in addition to posting the notice on the

sign, provide a written notice to the owner,

stating that the sign is illegal and must be

permanently removed within the 30-day period

specified on the posted notice. The written

notice shall further state that the sign

owner has a right to request a hearing,

which request must be filed with the

department within 30 days after the date of

the written notice. However, the filing of a

request for a hearing will not stay the

removal of the sign.

* * *

(e) However, if the sign owner

demonstrates to the department that:

1. The sign has been unpermitted,

structurally unchanged, and continuously

maintained at the same location for a period

of 7 years or more;

2. At any time during the period in

which the sign has been erected, the sign

would have met the criteria established in

this chapter for issuance of a permit;

3. The department has not initiated a

notice of violation or taken other action to

remove the sign during the initial 7-year

period described in subparagraph 1.; and

4. The department determines that the

sign is not located on state right-of-way

and is not a safety hazard,

the sign may be considered a conforming or

nonconforming sign and may be issued a

permit by the department upon application in

accordance with this chapter and payment of

a penalty fee of $300 and all pertinent fees

required by this chapter, including annual

permit renewal fees payable since the date

of the erection of the sign.

21. Other exceptions, as noted by Subsection 479.07(1),

Florida Statutes, are found at Section 479.16, Florida Statutes.

This section addresses signs for which permits are not required.

The sign does not fall under any of these exceptions.

22. The sign was erected in 1980 on a portion of the

Federal-Aid Primary highway. It was visible from the main-

traveled way of the highway. Accordingly, unless falling within

one of the exceptions listed at Subsection 479.105(1)(e)1.-4.,

Florida Statutes, the sign requires a permit.

23. Subsection 479.105(1)(e), Florida Statutes, was first

passed as Section 64, Chapter 95-257, Laws of Florida, with an

effective date of June 11, 1995. It was amended again in 1996

and has remained unchanged since that date. The sign was

erected in 1980 and rebuilt in 1997. Also in 1997, Lamar

erected a separate monopole sign having two faces within 200

feet of the sign.

24. Applying these facts to the criteria in Subsection

479.105(1)(e), Florida Statutes, it is found that the sign has

been unpermitted, structurally unchanged, and continuously

maintained at the same location for a period of seven years.

However, during the seven-year period the sign was not always

eligible for a permit because it was within 1000 feet of another

sign in violation of Subsection 579.07(9)(a), Florida Statutes.

Accordingly, it may not be issued a permit under that

subsection.

25. Pursuant to this analysis the sign is found to have no

permit and is not lawfully entitled to receive a permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Transportation enter a

final order finding that the sign is a public or private

nuisance and requiring that it be removed as provided in

Subsection 479.105(1)(a), Florida Statutes, and dismissing case

number 08-1137.

DONE AND ENTERED this 16th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July, 2008.

COPIES FURNISHED :

Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

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 in this case.