ALLAN J. STOWELL, )
vs. ) Case No. 97-1417T
A hearing was held in this case in Clearwater, Florida, on December 4, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Gerald S. Livingston, Esquire
For Respondent: Andrea V. Nelson, Esquire
The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.
By Notice of Denied Application dated January 21, 1997, the Department of Transportation (Department) advised Petitioner,
Allan J. Stowell, that his application for a state sign permit for the location on State Road 60 in Pinellas County had been denied because it failed to reflect Petitioner’s ownership of the billboard, and it did not indicate that the City of Clearwater, within whose jurisdiction the sign was located, had approved it. Thereafter, by letter dated February 13, 1997, Petitioner requested a formal proceeding on the denial and this hearing ensued.
At the hearing, Petitioner testified in his own behalf and presented the testimony of Stephen Wayne Mock, president of Eller Media, an outdoor advertising firm. Petitioner also introduced Petitioner’s Exhibits 1 through 4 and 6 and 7. Petitioner’s Exhibit 5 for identification was tendered but not received into evidence.
Respondent presented the testimony of Johnny Lee Garner, manager of production and programs operations for the Department of Transportation. Though Respondent did not introduce any exhibits of its own, the parties jointly offered Stipulated Exhibits 1 through 16, 18, 21 through 25, 30 through 33, and 35 which were received into evidence.
A transcript of the proceedings was furnished and after receipt thereof by the undersigned, counsel for both parties submitted Proposed Findings of Fact, Proposed Conclusions of law, and written argument in support of their respective positions, all of which was carefully considered in the preparation of this Recommended Order.
The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads:
The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981.
The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue.
On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996.
On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996.
By letter dated August 30, 1994, the City advised
Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996.
As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995.
Stipulation of Fact #2 reads:
State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19.
The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding.
Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60).
On May 22, 1974, State Road 60 was designated a Federal- Aid Primary.
On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban.
Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981.
On or about October 1, 1981, Allan J. Stowell was issued
state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State
Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality.
State Road 60 became a part of the national highway system on November 25, 1995.
Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state.
Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be
located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor.
Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business.
Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating
he was delinquent in certain costs and fees for the permits.
When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current.
The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable.
When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised
Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal
visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981.
After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994.
After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions.
After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that
because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997.
Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government
will issue a permit upon approval of the application by the Department.
Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form.
On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the
property on which it is located in his application.
One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years.
Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997.
The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the
advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign.
Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute.
When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.”
There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as
required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application.
The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve.
Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Petitioner has the burden of proof in this case to establish his entitlement to the permits sought by a preponderance of the evidence. Florida Department of
Transportation vs. J.W.C. Co., Inc., and the Department of Environmental Regulation, 396 So. 2d 778 (Fla. 1DCA 1981).
Chapter 489, Florida Statutes, empowers the Department of Transportation to regulate outdoor advertising on the roads of this state. Section 479.07(1), Florida Statutes, dealing with the permitting of signs on state and federal highways, provides:
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 ... without first obtaining a permit for the sign from the department and paying the annual fee.
Subsection (b) of the cited Section further provides:
As part of the application, the applicant or his authorized representative must certify in a notarized signed statement that all information provided in the application is true and correct and ... where local governmental regulation of signs exists, a statement from the appropriate local government official indicating that the sign complies with all local governmental requirements and that the agency or unit of local government will issue a permit to that applicant upon approval of the state permit application by the department.
Consistent with that provision, Section 479.15(1), Florida Statutes, also provides that:
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.
The evidence of record indicates that Mr. Stowell lawfully erected the billboard in question in the fall of 1981.
Thereafter, in 1989 the City adopted Ordinance No. 4753-88 by the terms of which the billboard in issue, which had been lawfully erected, became a legal non-conforming structure. The City, however, did not require immediate removal of the structure but, instead, allowed the owner seven years, until January 19, 1996, to amortize the cost of the structure. As of that latter date, notwithstanding the prior-granted variance, the structure was either to be made conforming or removed. Petitioner did neither, even though he was advised to do so by letter from the City in August 1994.
Petitioner contends that any sign which had been lawfully erected and which became subject to the Department’s jurisdiction in November 1995 because of the designation of the national highway system, should be permitted as a non-conforming sign provided an application was filed by January 1, 1997, or compensation be paid to the owner.
Petitioner claims the City has no billboard regulations and, therefore, the Department’s reliance on that requirement of statute, Section 479.07(3)(b), Florida Statutes, requiring a showing that the sign complies with local government requirements and would be permitted by the local government upon approval of state permit, is unfounded. Petitioner urges that the City’s prior-existing sign ordinance was declared unconstitutional in Dimmit v. City of Clearwater, 985 F.2d 1565. Review of the authorities presented indicates that the ordinance pertinent to this issue was not declared invalid and is operative. Petitioner so stipulated.
It is clear that Mr. Stowell was made aware of the requirement for permitting of his signs in 1988 when the Department assessed a penalty against him for his failure to obtain permits during the years 1983 through 1987. Even though the Department did not thereafter send him notices that permit fees were due each year, because the jurisdictional status of the roadway had changed, he was aware of the change back to Department jurisdiction in 1995, and at that time he should have applied for permits for the sign. He failed to do so and has not presented sufficient justification for not doing so. The correspondence and contacts between Petitioner and the Department clearly establish his awareness of the requirement, and he has not presented any evidence to indicate the Department made any misrepresentations to him regarding the need for permits nor was he misled by the Department of in any way.
Since the Petitioner failed to maintain his permits, they expired. He has failed to bring the legal non-conforming sign into conformance within the time specified by the City in its 1989 ordinance. For that reason the City, properly, cannot grant its permission or acquiescence in the continued existence of the sign in its present configuration. Without City approval, by statute the Department cannot now issue permits for this sign as requested. Further, there appears to be no legitimate basis for compensating Petitioner for the removal of signs caused by his own failure to comply with the terms of the City’s 1989 ordinance.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner permits for the maintenance of the signs in issue, and denying compensation for their removal.
DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998.
Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151
Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street
Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs
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.
