STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

A hearing was held in these cases in Tampa, Florida, on June 23, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jodi B. Jennings, Esquire

Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

For Respondent: Gerald S. Livingston, Esquire

Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151

STATEMENT OF THE ISSUES

The three major issues for consideration in this hearing are whether the sign structure in issue has been moved or removed from the location for which it was permitted and improperly re- erected; whether the sign in issue is being operated and

maintained without the required proper state permits; and whether the sign in issue is a conforming or nonconforming structure.

PRELIMINARY MATTERS

On November 17, 1999, the Department of Transportation issued four Notices of Violation, Numbers 09X HM1999 516, 09X HM1999 517, 10B HM1999 518, and 10B HM1999 519, to Respondent for its two-faced pole sign located at milepost 3.850 on North Dale Mabry Boulevard/SR 597, near the corner of North Dale Mabry Boulevard and Hudson Lane in Hillsborough County, Florida. The notices alleged that the two-faced sign had been removed from the location for which it was permitted and, therefore, could not be re-erected without new permits; and that the two-faced sign had been re-erected without permits. Respondent requested formal hearing on the violations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Susan Lynn Rosetti, an outdoor advertising administrator for the Department of Transportation and introduced Petitioner's Exhibits

1 through 5. Respondent presented the testimony of Delma Jordan, a former employee of the Infinity; Milton Gill, a licensed surveyor; Joseph Howard Little, an employee of the company; Susan Rosetti, who testified for Petitioner; and Patti Blass, general manager of National Outdoor Advertising, now Infinity Outdoor. Respondent also introduced Respondent's Exhibits lettered A through F. Respondent's Exhibit G for identification was offered but not admitted.

A Transcript of the proceedings was filed on July 10, 2000.

After the hearing, both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Department of Transportation (Department), was the state agency responsible for the permitting and regulation of advertising signs adjacent to federal-aid primary highways in Florida. Respondent, National Advertising Company, now known as Infinity Outdoor (Infinity), is the owner and operator of the outdoor advertising sign in issue here, which is located near the corner of Hudson Lane and North Dale Mabry Highway in Tampa, Hillsborough County, Florida. The two back-to-back faces of the 1levated sign bear Department permit numbers AF461 and AF462.

2. The sign structure was erected in 1981. It was originally permitted to be located in the south 50 feet of the lot on which it is located, but when erected, was not placed at the permitted site but at a site 17 feet from the north property line of the parcel. The lot on which the sign is erected runs

   186.80 feet from north to south along the western lot line. Sometime after being erected, in order to accommodate the replacement of underground storage tanks on the property, and without applying to the Department for a permit to do so, the sign was moved from its then location to the location where it

   currently stands. To effect the move, the mast upon which the signs are located was cut off near ground level and, through the use of a crane, the entire superstructure, including mast and sign facings, was moved to the current site approximately nine- and-one-half feet to the northwest of the former site. The faces of the sign structure are facing the same way as they did before the move, and are in substantially the same air space. The procedure followed in the movement of this sign structure is consistent with that generally followed and approved by the Department. This change in location resulted in the sign being erected at least 100 feet north of the permitted location in the southern 50 feet of the parcel. It was actually located adjacent to and within 660 feet of the right-of-way of Dale Mabry Highway, a federal-aid primary highway.

3. At the time the sign was erected, existing regulations relating to signs located adjacent to federal-aid primary highways required a minimum of 500 feet spacing between signs. The Department contends that when the sign was constructed in 1981, it did not meet the required 500 foot spacing from the then existing sign to the north.

4. Department records from 1983 show that at the time the instant sign was erected, Infinity's permit application called for it to be erected in the south 50 feet of the property, which would have placed it more than 500 feet from the existing Foster and Kleiser sign to the north. However, the sign was not erected

   in the south 50 feet of the property but near the north property line, and that location resulted in less than 500 feet separating the subject sign structure and the Foster and Kleiser sign to the north. The Foster and Kleiser sign had not been permitted and was an illegal sign, however. The Department claims that Infinity erected its sign on the northern portion of the property knowing the Foster and Kleiser sign was up, and that Infinity therefore knew that it did not meet spacing requirements.

5. At the time the sign was originally erected, a representative of Infinity wrote to the Department indicating a need to actually erect the sign 150 feet north of the site listed on the permit. No evidence was produced either by Infinity or the Department to indicate whether the request to move the erection site was approved. The permit calls for erection in the southern 50 feet, and when Infinity registered the sign with Hillsborough County in 1984, it cited the location as being in the south 50 feet of the property.

6. Department records from the same period indicate there was no sign within 500 feet to the south at the time the sign in issue was erected. A sign was subsequently erected 497 feet to the south of the instant sign. At the present time it is 505 feet from the closest sign to the south.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

8. The Department has issued four notices of violations regarding the back-to-back sign erected by Infinity based on Infinity's alleged movement and re-erection without permits of the signs in question, and the alleged erection of the signs at a new site without permits.

9. The burden of proof in this case rests upon the Department to prove its allegations by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., and the Department of Environmental Regulation, 396 So. 2d 778 (Fla. 1st DCA 1981).

10. The spacing requirements for outdoor advertising signs are included in the agreements between the State of Florida and the United States Department of Transportation. This agreement, initially incorporated in Rule 14-10.009, Florida Administrative Code, and the provisions of Section 479.02, Florida Statutes, required that signs located along federal-aid primary highways be spaced at least 500 feet apart. This spacing requirement was increased to 1,000 feet in 1984.

11. Notice of Violation number 09X HM1999 516 refers to state permit number AF461 issued for the north face of the subject structure, and alleges the sign had been removed from the

    location for which it was permitted and may not be re-erected. The notice also alleges that the sign has lost its nonconforming status and become illegal. Notice of Violation number 09X HM1999

    517 relates to permit number AF462 issued for the south face of the sign and makes the same allegations as contained in the other notice.

12. The term "remove" as it relates to signs is defined in Section 479.01(16), Florida Statutes as "to disassemble, transport from the site, and dispose of sign materials by sale or destruction." The evidence of record does not show that Infinity "removed" the signs in issue. The entire structure, save the base and a few inches of the bottom of the vertical pole, were, together and without disassembly, cut off and, by use of a crane, moved to a new base prepared for it some nine-and-one-half feet to the northwest of the pre-existing location, but on the same piece of property.

13. The issue for resolution is whether the sign in question (for the purpose of simplicity, the sign structure which includes two sign facings on a single pole will be referred to as the sign), was lawfully erected consistent with existing spacing requirements at the time it was put up; whether it was lawfully removed from the site for which it was permitted initially to the site where it currently sits; whether a permit was needed to move it; and whether it can be properly permitted as it exists.

14. The Department contends that the sign does not comply with the provisions of the Federal-State agreement regulating the spacing of signs and the requirements of Florida Statutes. Section 479.01(14), Florida Statutes, defines a "nonconforming sign" as one which was lawfully erected but which does not currently comply with land use, setback, size, spacing, and lighting provisions of state or local law or rule, or a sign which was lawfully erected but which later fails to comply with state or local law or rule. As of November 17, 1999, because the sign in question were not originally constructed on the site for which it was permitted, they are not nonconforming signs but illegal signs.

15. Infinity contends that the movement of the sign from where initially erected nine-and-one-half feet to the existing location does not constitute a removal which requires the obtaining of a permit. It also contends that the sign was a legal, conforming sign as of October 1, 1984, when the spacing requirements were expanded from 500 feet to 1,000 feet along a federal-aid primary highway. If the signs had been legally constructed, that would be so. The evidence of record does not support that contention, however. In fact, the evidence shows that in 1981, when the sign was erected, the permit was for a site 150 feet south of where the sign was erected. A non- permitted, illegal sign, that of Foster and Kleiser, existed to the north, and there was no relevant sign to the south. Had the

    sign been erected at the permitted site at that time, it would have been conforming and, in fact, the permits were issued, but for the site within the southern 50 feet of the property.

    Whether by mistake or by design, Infinity improperly constructed the sign at the northern location on the property where it stood for several years until moved to accommodate the tank clean-up.

16. Consistent with the Department policy, if erected where permitted, the Infinity sign would have been considered conforming because there was no relevant sign to the south. The conforming status of the sign would not have been changed because of a change in the law expanding the spacing requirements.

17. However, when Infinity failed to locate the sign in the location for which it was permitted, and placed it 150 feet to the north; and when it recently moved it the additional nine-and- one-half feet, it changed its status. The sign was unlawful at the site on which it was initially erected and required a permit at the substituted site. None was obtained.

18. At its existing location, after being moved, it is 505 feet from the next sign to the south. That is within the 1,000 foot spacing requirement implemented in 1984.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order revoking sign permit numbers AF461 and AF462, and requiring removal of the signs which are located at the

corner of North Dale Mabry Highway and Hudson Lane within 30 days of the date of the Final Order.

DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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 28th day of July, 2000.

COPIES FURNISHED:

Jodi B. Jennings, Esquire Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Gerald S. Livingston, Esquire Livingston & Reilly, P.A. Post Office Box 2151

Orlando, Florida 32802-2151

James C. Myers

Clerk of Agency Proceedings Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

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 in this case.

Docket for Case No: 99-005309

Orders for Case No: 99-005309