STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 78-642T
) WILLIAM E. BEAL, d/b/a BEAL ) SIGN SESRVICE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on April 6, 1979, at 1:30 p.m., at the State of Florida, Department of Transportation District Office, 780 Southwest 24th Street, Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
For Respondent: Nancy Severs, Esquire
Miller, Squire & Braverman
500 Northeast Third Avenue Fort Lauderdale, Florida 33301
ISSUES
Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity,
in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
FINDINGS OF FACT
This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code.
The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge.
The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida.
The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign.
The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida.
Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west.
The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction.
The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads:
"479.07 Individual device permits; fees; tags.--
Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04."
The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit.
The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway.
The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy.
In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence.
Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the
offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs.
(In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.)
The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected.
Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign.
Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing
purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.)
Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814.
Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement.
It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states:
"14-10.04 Permits.
Permit Approval
Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant.
The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature.
Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser.
Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states:
"14-10.04 Permits.
Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within
30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall
cause it to be plainly visible but not readily accessible by the general public."
At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause.
Based upon a full consideration of the facts herein, it is concluded as a matter of law that that sign which is located at State Road 814 and is the subject matter of the Notice of Violation does not have a permit within the meaning of Subsection 479.07(1), Florida Statutes, and for such violation may be removed in accordance with the terms set forth in Section 479.17, Florida Statutes. The subject sign does not violate the requirement for proper spacing as found in Rule 14-10.06(1)(b)3., Florida Administrative Code, because State
Road 814 is not a federal-aid primary highway. Section 479.025, Florida Statutes, has been repealed and has no application.
Based upon a full consideration of the facts herein, it is concluded as a matter of law that that sign which is located on State Road 84 and is the subject matter of the Notice of Violation does not have a permit within the meaning of Subsection 479.07(1), Florida Statutes, and for such violation may be removed in accordance with the terms set forth in Section 479.17, Florida Statutes. State Road 84 is a federal-aid primary highway and the sign which is at issue is on the same side of the highway facing the same direction as a permitted sign located 292 feet away and, consequently, this violates the spacing requirements of Rule 14-10.06(1)(b)3., Florida Administrative Code, and this in turn would justify the denial of a permit for this sign. Section 479.025, Florida Statutes, has been repealed and has no application.
It is recommended that the signs located at State Road 814 and State Road
84 that are the subject matter of this dispute be removed.
DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building
MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979.
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Nancy Severs, Esquire Miller, Squire & Braverman
500 Northeast Third Avenue Fort Lauderdale, Florida 33301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE OF FLORIDA, DEPARTMENT OF NOT EFFECTIVE UNTIL TIME TRANSPORTATION, EXPIRES TO FILE FOR
JUDICIAL REVIEW AND
Petitioner, DISPOSITION THEREOF IF FILED vs. CASE NO. 78-642T
WILLIAM E. BEAL, d/b/a BEAL SIGN SERVICE,
Respondent.
/
FINAL ORDER
The record and the evidence in this cause have been reviewed, together with the Recommended Order of the Hearing Officer. The Exceptions to the Recommended Order submitted by the Respondent, pertaining only to one of the two signs which were the subject of the hearing, that located adjacent to SR 814, have been considered.
The Findings of Fact of the Hearing Officer are supported by the record and are adopted and made a part of this Order. The Conclusions of Law, insofar as the sign located on SR 84 is concerned, are accepted and the sign is ordered removed in accordance with the recommendation of the Hearing Officer.
However, the Exceptions submitted by Respondent are found to have merit.
The substance is that the sign located on SR 814 was denied a permit on the basis that it violated spacing requirements for signs located on a federal aid primary highway. But it was established at the hearing, and so found by the Hearing Officer, that SR 814 is not a part of the federal aid primary system and therefore spacing requirements of Rule 14-10.06(1)(b)(3), Fla. Admin. Code, are not applicable.
The recommendation of the Hearing Officer that the sign be removed is based solely on the fact that the sign has no permit tag as required by section 479.07(1), Florida Statutes. But the Respondent has applied for a permit for the sign and it has been the practice of the Department to issue such permits for a previously erected sign where such permit was all that was required for it to be legally in place. Since the reason given for withholding a permit in this instance has been found not valid, the Department should not discriminate against Respondent, and, if this were all, follow its usual practice and issue a permit.
But it was brought out at the hearing that Respondent had been notified by Broward County in February 1975 that the sign was in violation of a County ordinance and the violation must be corrected by February 27, 1978. Respondent denied that the sign violated the ordinance and stated that the County had taken no further action and that he did not expect any.
The Department is prohibited by statute from issuing a permit for a sign which is prohibited by proper authority. Section 479.15(1), Florida Statutes, reads as follows:
"479.15 Harmony of regulations.-
No zoning board or commission nor any other public officer or agency shall permit any advertisement or advertising structure which is prohibited under the provisions of this chapter nor shall the department permit any advertisement or advertising structure which is prohibited by any other public board, officer or agency in the lawful exercise of its or their powers.
The Department is in the position on the facts of this case of being prepared to issue a permit in accordance with its usual practice. But it is faced with the possibility that such action might not be in conformity with the section of the statutes quoted above because of an alleged violation of a County ordinance. This question of violation of the County ordinance is a matter of dispute between the County and the Respondent which the Department cannot resolve.
In view of the above, as to the sign located on SR 814, it appears that if the County pursues the matter and is successful, the County will require the sign to be removed. If Respondent obtains a favorable ruling in a proper forum, or if the County abandons its position, the Department should issue a permit.
It is accordingly
ORDERED (1) as to the sign located adjacent to SR 814 that the Department determine from the County whether or not the County has abandoned its claim of alleged violation by Respondent or intends to pursue it to conclusion, the Department to be guided in its permit procedures by the resolution of the controversy between the parties.
As to the sign located adjacent to SR 84, the recommendation of the Hearing Officer is accepted and such sign is ordered removed.
DONE AND ORDERED this 24th day of May, 1979.
WILLIAM N. ROSE SECRETARY
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301
COPIES FURNISHED:
Charles C. Adams, Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32301
Nancy Severs, Esquire Miller, Squire & Braverman
500 Northeast Third Avenue
Fort Lauderdale, Florida 33301
Richard C. Hurst, Administrator Outdoor Advertising Section
Florida Department of Transportation Haydon Burns Building
Tallahassee, Florida 32301
Frank H. King, Esquire
Florida Department of Transportation Haydon Burns Building
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 25, 1979 | Final Order filed. |
| Apr. 30, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 24, 1979 | Agency Final Order | |
| Apr. 30, 1979 | Recommended Order | Remove signs which are improperly permitted and are in violation of spacing requirements. |
DEPARTMENT OF TRANSPORTATION vs. DOLPHIN OUTDOOR ADVERTISING, 78-000642 (1978)
DEPARTMENT OF TRANSPORTATION vs. DAVID GROVER (SR A1A), 78-000642 (1978)
LAMAR OF TALLAHASSEE vs DEPARTMENT OF TRANSPORTATION, 78-000642 (1978)
LAMAR OF TALLAHASSEE vs DEPARTMENT OF TRANSPORTATION, 78-000642 (1978)
DEPARTMENT OF TRANSPORTATION vs. CASHI SIGNS, 78-000642 (1978)
