STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4180T

) TROPICAL ACRES STEAK HOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 24, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

For Respondent: Richard Tobin, Esquire

200 SE 18th Court

Fort Lauderdale, Florida 3331

Mark Ulmer, Esquire

333 N. New River Drive E.

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

Whether Respondent's sign violates the provisions of Sections 479.07(1), 479.105, and 479.07(9)(a)1., Florida Statutes (1991), and is, consequently, illegally maintained.

PRELIMINARY STATEMENT

On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for Respondent's sign located at the Northwest corner of Interstate Highway I-95 and Griffin Road in Fort Lauderdale, Florida. Respondent denies that the sign violates any provision of law and contends that Petitioner is estopped from asserting the position that the sign is illegally erected or maintained. In the alternative, Respondent contends that the issue as to the legality of the sign has been previously litigated by the parties which resulted in a determination in 1976 that the sign was legally erected and maintained because it was exempt from permitting requirements.

At the formal hearing, Petitioner called as its only witness Fred Harper, who is Petitioner's District Administrator of Outdoor Advertising for Petitioner's District Four. Respondent presented the testimony of Salvatore Studiale, Jack Studiale, and Caroline Greenlaw. Salvatore Studiale is the owner, along with his wife, of the real property upon which the subject sign was erected and is the father of Jack Studiale and Caroline Greenlaw. All three of Respondent's witnesses are owners and operators of Tropical Acres Steak House, Inc., which is, as the name implies, a restaurant. The parties submitted one joint exhibit, Petitioner submitted two exhibits, and Respondent submitted four exhibits. All exhibits were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the Respondent, and without objection from Petitioner, the time for the filing of post-hearing submittals was extended. Rulings on the parties proposed findings of fact may be found in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a closely held corporation owned and operated by Salvatore Studiale and his family, including his wife, Celia, their son Jack Studiale and their daughter, Caroline Greenlaw. Respondent owns and operates Tropical Acres Steak House, a restaurant located in Broward County, Florida. Respondent erected a sign in 1975 in Broward County ninety feet north of Griffin Road adjacent to I-95 that is the subject of this proceeding.

   
   

2. In a 1976 proceeding involving the same parties to this proceeding, Petitioner cited the same sign that is the subject of these proceedings for having been erected without certain permits in violations of Sections 479.02, 470.07(1), and 479.111(2), Florida Statutes (1975). Thereafter the case was referred to the Florida Division of Administrative Hearings (DOAH) and assigned DOAH Case No. 76-473. A formal administrative hearing was held in Case No. 76-

473 by a DOAH Hearing Officer who entered a Recommended Order. The following findings of fact, taken from the Recommended Order entered in Case No. 76-473, are consistent with the evidence presented before me and are hereby adopted as my findings of fact:

1. In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 8, 1975. The property deeded to Broward County was of a value of approximately $18,000. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks [and] Seafood 1/2 Mile".

2. Investigation by Petitioner's representatives in the Spring of 1976 revealed that no state permit had been

   applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected.

3. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee".

1. The Hearing Officer in Case 76-473 concluded that the subject sign was exempt from Petitioner's permitting requirements:

   
   

   ... because Section 479.16(11)1/ excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" (sic) adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls with the exception stated above.

   
   

2. The Hearing Officer in Case No. 76-473 recommended that "the allegations against Respondent be dismissed". Thereafter on August 12, 1976, Petitioner entered a Final Order in Case 76-473 which found that the findings of fact and the conclusions of law contained in the Recommended Order were correct and adopted the Recommended Order as its Final Order.

   
   

3. The site of the subject sign had been the location of a gasoline service station before the Studiales purchased the property. When the sign was erected, the site was located in unincorporated Broward County. In July 1990 the site was annexed so that at the time of the formal hearing the sign was located within an incorporated municipality.

   
   

4. In 1978, Respondent's sign was damaged by a wind storm. With Petitioner's approval, the sign was restored.

   
   

5. On June 13, 1991, Petitioner's investigators inspected the subject sign. At an undetermined time between 1978 and June 13, 1991, a strip was attached to the supporting posts beneath the main faces of the sign so that two additional sign faces, one facing north and the other south, were created. The message that was placed on each face of this smaller sign was "1/2 Mile West" together with directional arrows. This addition was for the purpose of directing traffic to Respondent's restaurant, which was located 1/2 mile west of the sign. The directional message on each face of the smaller sign was removed prior to the formal hearing that was held in this proceeding.

   
   

6. No permit for the sign has been applied for by Respondent or the Studiales and no permit has been given by Petitioner.

7. Petitioner does not charge any permit fee for a sign unless a permit has been issued. There was a dispute as to whether Respondent had been charged and had paid annual fees for the subject sign. The greater weight of the evidence establishes that in 1986 and 1987 Respondent received billings from Petitioner for the subject sign as a result of computer error and that Respondent paid those billings. It is clear, however, that the Studiales were aware that no permit had ever been issued for this sign and that they relied on the determination made in Case 76-473 that the sign was exempt from permitting. Respondent has attempted to establish that it has placed great reliance in making its business plans on Petitioner's representations and assurances that the subject sign was a legal structure. Although it is clear that the subject sign is important to Respondent's business because it serves to direct customers to the restaurant location, Petitioner's delay in challenging the legality of the sign has not prejudiced Respondent. Respondent has been benefitted by the continued existence of the subject sign.

   
   

8. The size of the sign exceeds 10 square feet.

   
   

9. On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for the subject sign, based on its determinations that the sign was not exempt from pertinent permitting requirements, that it did not have a permit, and that it was improperly spaced.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

    
    

11. Respondent's contention that the Petitioner is estopped to challenge the legality of the sign is rejected because it failed to establish an essential element of estoppel, namely, detrimental reliance on Petitioner's representations. The issues presented by this proceeding are not identical to those presented by the 1976 proceeding. Therefore, Respondent's argument that this proceeding was decided by the 1976 proceeding under the doctrine of res judicata is rejected.

    
    

12. Section 479.07, Florida Statutes (1991) provides, in pertinent part, as follows:

    
    

    1. Except as provided in 479.16, a person may not erect, operate, use or maintain, or cause to be erected, operated, used, or maintained, any sign ... 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.

       
       

13. Section 479.105, Florida Statutes (1991), provides, in pertinent part, as follows:

    
    

    1. Any sign which is located adjacent to the right-of-way of ... any portion of the interstate or federal 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.

       
       

14. Section 479.16, Florida Statutes (1991) provides, in pertinent part, as follows:

    
    

    The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter

    ... :

    1. Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment ...

       
       

       * * *

       
       

       (8) Signs or notices erected or maintained upon property stating only the name of the owner, lessee, or occupants of the premises and not exceeding 8 square feet in area.

       
       

15. If the sign were being erected today, it would not be exempt from permit requirements because of changes that have occurred in Chapter 479, Florida Statutes, between 1976 and today. The sign is not entitled to an exemption under Section 479.16(1), Florida Statutes (1991), because the sign is not located on the "premises of an establishment". The sign is not entitled to an exemption under Section 479.16(8), Florida Statutes (1991) because the sign exceeds 8 square feet in area.

    
    

16. The foregoing conclusion does not dictate the additional conclusion that the sign is illegal and must be removed pursuant to Section 479.105, Florida Statutes (1991).

    
    

17. Section 479.01, Florida Statutes (1991), provides the following definitions pertinent to these proceedings:

    
    

    (12) "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected, but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions.

    * * *

    
    

    (14) "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, 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-travelled way. ...

    
    

18. Petitioner, as the party asserting the affirmative of the issue in this proceedings, has the burden of proving the facts necessary for it to prevail by a preponderance of the evidence.

    
    

19. Petitioner was unable to establish when the directional message was added to the sign. Section 479.16(11), Florida Statutes (1975), does not require that a sign's message be limited to the name of the owner or lessee of the property for the sign to qualify for an exemption.2/ There is no basis for concluding that the Recommended Order of the Hearing Officer and the Final Order of Petitioner's Secretary in Case 76-473 would have been different had the words "1/2 Mile West" with directional arrows been a part of the sign at the time of the formal hearing in that case. Petitioner failed to establish that the subject sign would have lost its exemption from permitting requirements had the directional message been added before the effective dates of the amendments to Chapter 479, Florida Statutes. Because Petitioner did not establish that the directional message was added after the effective dates of those amendments, it is concluded that the loss of the exemption was the result of changes to Chapter 479, Florida Statutes. It is further concluded that when those amendments to Chapter 479, Florida Statutes, becoming effective, the sign's status changed from "exempt" to "nonconforming" as defined by Section 479.01(12), Florida Statutes (1991).

22..Even if Petitioner had established that the directional message was added to the sign after the effective dates of the amendments to Chapter 479, Florida Statutes, the case of 3M National Advertising Company v. City of Tampa Code Enforcement Board, 587 So. 2d 640 (Fla. 2nd DCA 1991) would only require that directional message be removed. Since the directional message has been removed, Petitioner is not entitled to removal of the sign as it existed at the time of the formal hearing without compensating Respondent.

1. While a nonconforming sign can be removed by Petitioner, the owner or lessee of the sign is entitled to compensation for such removal pursuant to Section 479.24(1), Florida Statutes (1991), which provides, in pertinent part, as follows:

   
   

   1. Just compensation shall be paid upon the removal of a lawful nonconforming sign along any portion of the interstate or federal-aid primary highway system. This section does not apply to a sign which is illegal at the time of its removal. A sign

will lose its nonconforming status and become illegal at such time as it fails to be permitted or maintained in accordance with all applicable laws, rules, ordinances, or regulations other than the provisions which makes it nonconforming. A legal nonconforming sign under state law or rule will not lose its nonconforming status solely because it additionally becomes nonconforming under an ordinance or regulation of a local government entity passed at a later date.

The department shall make every reasonable effort to negotiate the purchase of the signs to avoid litigation and congestion in the courts.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that the status of

Respondent's sign is "nonconforming" and which rejects Petitioner's contention that the sign is illegal.

DONE AND ORDERED this 2 day of April, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 2 day of April, 1992.

ENDNOTES

1/ Section 479.16, Florida Statutes (1975) provides, in pertinent part, as follows:

The following ... signs ... are excepted from all the provisions of this chapter:

(11) Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises

...

2/ Compare Section 479.16(8), Florida Statutes (1992), which affords an exemption to: "Signs or notices erected or maintained upon property stating

only the name of the owner, lessee, or occupant of the premises ..." (Emphasis added.)

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-4180T

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, 8, 13 14, 18, 21, 22, 24, 25, and 26 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 5 pertaining to Petitioner's position as to the legality of the sign prior to the 1976 proceeding are rejected as being subordinate to the findings made and unnecessary to the conclusions reached.

   
   

3. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence and as being a mischaracterization of the Recommended Order and the Final Order entered in Case 76-473.

   
   

4. The proposed findings of fact in paragraphs 11, 12, 15, 16, and 23 are rejected as being subordinate to the findings made.

   
   

5. The proposed findings of fact in paragraphs 19 and 20 are rejected due to the failure to comply with the provisions of Rule 22I-6.031(3), Florida Administrative Code. Mr. Harper testified that he did not know when the directional message was added to the sign. Even if he had testified that he first noticed in 1988 that the directional message had been added, that testimony would not have established that the directional message was added in 1988. Because of the scope of Mr. Harper's duties (see page 68 of transcript) a conclusion that the directional message was added the same year Mr. Harper first noticed it would be speculative.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 4, and 5 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraph 3 are rejected as being conclusions of law.

   
   

3. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed findings as to the billings for the sign are rejected as being subordinate to the findings made. The proposed findings as to Mr. Harper's note are rejected as being unnecessary to the conclusions reached.

   
   

4. The proposed findings of fact in paragraphs 7 are adopted in part by the Recommended Order. The proposed findings of fact as to Respondent's reliance on Petitioner's representations are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Charles G. Gardner, Attorney Pamela A. Arthur, Attorney 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Richard D. Tobin, Esquire

200 SE 18th Court

Fort Lauderdale, Florida 33316

Mark Ulmer, Esquire

Brigham, Moore, Gaylord, Wilson, Ulmer Schuster and Sachs

333 North New River Drive East Fort Lauderdale, Florida 33301

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

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 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: 91-004180

Orders for Case No: 91-004180