Findings Of Fact The Respondent, Janet C. Wyatt, owns an outdoor advertising sign which is situated on U.S. 19, .5 mile south of State Road 44 in Citrus County, Florida. One of the faces of this sign faces north and the other faces south. U.S. 19 is a federal-aid-primary highway. The Respondent applied for a permit for the subject sign from the Department of Transportation approximately 15 years ago. The Department did not issue the requested permit, and none has been issued to date. The subject sign is a 16 foot billboard which has been erected at a point which is 80 feet from the center line of U.S. 19. The width of the state's right-of-way is 100 feet from the center line of U.S. 19 at the point where the sign is standing. Thus, the entire sign structure is inside the state right-of-way. There is no identification of the sign's owner on the structure. The Respondent admits that she has no state permit for the subject sign, that her name as owner does not appear anywhere on the structure, and that the sign is situated inside the state right-of-way.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's sign situated on U.S. 19, .5 mile south of State Road 44 in Citrus County, Florida, facing north and south, be removed. THIS RECOMMENDED ORDER entered this 26th day of March, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Janet C. Wyatt 20 Crooked Branch Road Lecanto, Florida 32661 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 1986, in Tallahassee, Leon County, Florida WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact By Advertising Sign Permit dated March 4, 1985 (Exhibit 3), Clear Vu Media was authorized to locate a sign with both east and west facing boards on State Road 52, 2- 1/2 miles east of Plaza Drive (Little Road). The permit was issued by Linda K. Brown, outdoor advertising inspector for DOT. Prior to issuing the permit Brown visited the proposed site and approved the location as meeting the requirements for an outdoor advertising sign. Subsequent to the erection of the sign Brown inspected the sign and found the sign to be located on a site other than the approved site. The existing structure is located 890 feet from another existing and permitted sign. The approved site is located at least 1,000 feet from this existing sign and from any other permitted sign along State Road 52. State Road 52 is a federal-aid primary highway. A Notice of Hearing was sent to Clear Vu Media, Post Office Box 2038, New Port Richey, Florida 33552, by U.S. Mail and was not returned as undelivered.
The Issue What final agency action should the Department of Transportation take on Petitioner's Application for Outdoor Advertising Permit.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The proposed sign that is the subject of the instant controversy (Proposed Sign) is located off of I-95 in the City of Miami (City) at 328-334 Flagler Street on a parcel of land leased by Petitioner from CanPartners Realty (CanPartners Parcel). Section 10.4.5 of the City's Zoning Ordinance (Section 10.4.5), which has been in effect since 2002, prohibits "new signs of outdoor advertising," except in limited circumstances. It provides, in pertinent part, as follows: For the purposes of this section, "Outdoor advertising signs" are signs used in the conduct of the outdoor advertising business; an outdoor advertising business, for the purpose of this section, is defined as the business of receiving or paying money for displaying signs where the sign copy does not pertain to the use of the property, a product sold, or the sale or lease of the property on which the sign is displayed and which does not identify the place of business as purveyor of the merchandise or services advertised on the sign. Except as otherwise provided in Articles 4 and 10 and/or the City Code, or, pursuant to this subsection, no new freestanding "Outdoor advertising signs," as defined above shall be allowed. * * * Notwithstanding any provision of this Zoning Ordinance to the contrary, permits for outdoor advertising signs may be issued pursuant to a Settlement Agreement authorized by Resolution passed by the City Commission, in conjunction with the settlement of related litigation, which expressly authorizes issuance of such permits for said outdoor advertising signs, and then only under the terms and conditions of settlement agreements that result in a net reduction in the party to the settlement's number of outdoor advertising signs located in the City of Miami. . . . The City has entered into "Settlement Agreements" of the type described in the last paragraph of Section 10.4.5 with three sign owners: Carter Pritchett Hodges, Inc., d/b/a Carter Outdoor Advertising, Inc.; Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor; and Intervenor. The City does not have a such a "Settlement Agreement" with Petitioner. The City entered into its Settlement Agreement with Intervenor (City/CBS Settlement Agreement) on July 18, 2008. The City/CBS Settlement Agreement contains the following provisions, among others: 4. Amended Permits. In recognition of CBS's [Intervenor's] removal of the numerous Sign structures and Sign faces described in this Agreement and waiver of just compensation thereof, the City will amend a maximum of 15 existing sign permits (the "Amended Permits") to allow CBS to transfer the permit rights associated with such Signs to new locations with a maximum of two (2) Sign faces each on the terms and conditions set forth below: The City will amend up to a maximum of 15 permits for Signs based on CBS's removal of Signs on a two for one basis: for every two bulletin faces removed, one bulletin face may be erected with an Amended Permit. . . . * * * c. Upon application by CBS showing compliance with the provisions of this paragraph, the City will amend existing Sign permits to allow the transfer of permit rights associated with such Sign or Signs to locations within the same or a less restrictive Zoning District. For all Initial Amended Permits and Amended Permits, CBS will submit FDOT Form 575-010-04 to the City, which will be stamped on the date received. The City's signature on the FDOT Form 575-010-04 shall constitute approval of the location of the sign, and no further approvals from the City shall be required. All Sign permits will be processed "first in, first out," such that no other FDOT Forms may be signed or authorized for a subsequent application which would interfere with the location secured by a previously approved FDOT Form 575-010-04. If an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application. * * * 19. Miscellaneous. * * * f. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of the any successor or permitted assigns of the parties hereto. CBS shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by CBS will be valid unless: (1) the assignee shall execute an Agreement to be bound by the terms and conditions of this Agreement and to accept all of the rights and obligations of CBS under this Agreement; and (2) the assignment is approved in writing by the City Commission, which approval shall not be unreasonably withheld, delayed or conditioned. The parties acknowledge that the City Commission shall have the right to reject proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any such assignment shall not relieve CBS of its obligations under this Agreement . . . . Any attempted assignment in violation of this Section shall be void. In anticipation of the finalization of the City/CBS Settlement Agreement, Intervenor (through Joseph Little) and Petitioner (through Harkley Thorton) had signed, on May 1, 2008, a Letter of Understanding (LOU) "set[ting] forth the understanding between [Intervenor] and [Petitioner] concerning new sign locations to be utilized in conjunction with the Settlement Agreement between [Intervenor] and the City of Miami." The first numbered paragraph of the LOU explained: CBS is negotiating and attempting to finalize a Settlement Agreement with the City whereby the City will issue 15 amended permits for the construction of new monopole signs with double faces, on expressways located within the City, in return for which CBS will remove 2 existing (or previously removed) sign faces for each new sign face constructed pursuant to an Amended Permit, subject to the terms and conditions of the Settlement Agreement between CBS and the City. Paragraph 2 of the LOU read, in pertinent part, as follows: With respect to the Settlement Agreement with the City, CBS and OM [Petitioner] agree as follows: * * * Under the Settlement Agreement, CBS seeks to obtain 7 Initial Amended Permits (as defined in the Settlement Agreement) one of which is tentatively agreed to be located in Jose Marti Park. Provided there is no term in the Settlement Agreement and the City does not otherwise require CBS to develop a site in the Jose Marti Park, CBS will abandon its proposed Jose Marti Park site and instead accept a site owned by Brickell Land Development Company, located at approximately 300 SW 8th Street (the "Brickell Site"), which is or will be subject to a lease with OM that allows construction and operation of a sign in accordance with the terms of paragraph (2c) below. . . . Provided OM obtains four (4) additional sites for placement of signs pursuant to Amended Permits under the Settlement Agreement, CBS agrees to accept said four sites provided CBS deems each site to be commercially viable. . . . For each of the sites accepted by CBS, CBS will enter into a sub-lease agreement with OM, whereby OM will be the sub-lessor and CBS will be the sub-lessee. . . . Provided that OM produces the Brickell Partners Site and four (4) additionally Commercially Viable Locations, CBS will assign the rights to one (1) of its amended permits under the Settlement Agreement with the City. CBS will assign to OM, and OM will assume, CBS's rights and obligations under the Settlement Agreement to said amended permit except for CBS'[s] obligations pursuant to paragraphs (7a-7d), (8a), and (12a). CBS will provide for the removal of two (2) of its existing sign structures to allow the City to issue the said Amended Permit to OM under the Settlement Agreement. * * * h. CBS'[s] acceptance of the four (4) Commercially Viable Locations referenced in 2c above is expressly conditioned upon the City's approving all locations on Exhibits B and B-1, as amended from time to time, as appropriate removals for Amended Permits in the Settlement Agreement. The penultimate paragraph of the LOU (Paragraph 6) provided as follows: This letter is a Letter of Understanding and binding between the parties and establishes the major business points and conditions of the Parties' agreement for this transaction. However, it is not all inclusive in that it does not contain all the deal points. The Parties agree to expand upon this Letter of Understanding in good faith to prepare a full agreement that can be executed within thirty (30) days of the date of this Letter of Understanding. Such agreement shall be consistent with the terms of this Letter of Understanding and contain such further terms and conditions as are mutually acceptable to the Parties. However, the failure of the Parties to complete a full agreement shall not invalidate the terms of this Letter of Understanding or excuse either Party from performing its obligations and responsibilities as set forth herein. The record is devoid of evidence that Intervenor and Petitioner ever executed a "full agreement," as contemplated by paragraph 6 of the LOU. Intervenor has not executed (pursuant to Paragraph 2e. of the LOU), nor has the City Commission approved (pursuant to Paragraph 19f. of the City/CBS Settlement Agreement), any assignment to Petitioner of Intervenor's rights under the City/CBS Settlement Agreement (although Petitioner believes that it is entitled to such an assignment and has so argued in circuit court litigation in which it is currently involved with Intervenor). On May 2, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. [Intervenor] and Outlook Media of South Florida, LLC [Petitioner] have signed a letter of understanding dated May 1, 2008 (The "Agreement"). Please accept this letter as confirmation that in accordance with the terms of the Agreement, CBS Outdoors, Inc. consents to Outlook Media of South Florida, LLC filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on our behalf. Thereafter, Petitioner submitted to the City's Zoning Administrator, Lourdes Slazyk, (on the version of FDOT Form 575- 010-04 then in effect) Petitioner's Application, requesting that Ms. Slazyk complete and sign the "Local Government Permission" section of the form. Obtaining such "Local Government Permission" is among the prerequisites for receiving an outdoor advertising sign permit from the Department. To erect an outdoor advertising sign in the City after the Department issues a permit, a City building permit (which is "something other than" the "Local Government Permission" referred to above) is required. Ms. Slazyk completed and signed the "Local Government Permission" section of the form, as requested, on May 22, 2008. It was not until almost a year later that Petitioner's Application was submitted to the Department. In completing the form, Ms. Slazyk checked the box indicating that the "outdoor advertising sign identified in this application: [was] in compliance with all duly adopted local ordinances and has been or will be issued the necessary permits." She did so based upon her understanding that the application (which named Petitioner as the applicant) was actually being filed by Petitioner on behalf and with the consent of Intervenor (in accordance with Mr. Little's May 2, 2008, letter) and that Petitioner was "traveling under" the City/CBS Settlement Agreement. Had Intervenor not notified the City that Petitioner was, with Intervenor's consent, "filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on [Intervenor's] behalf," Ms. Slazyk would not have checked the "compliance" box on the form, given the requirement of Section 10.4.5 of the City's Zoning Ordinance that "permits for outdoor advertising signs" may be issued only "pursuant to a Settlement Agreement" of the type described in Section 10.4.5 (to which Petitioner, unlike Intervenor, was not a party). On August 28, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. herewith withdraws its blanket letter of consent dated May 2, 2008 authorizing the City to approve FDOT application forms by Outlook Media of South Florida, LLC on our behalf. A copy of that letter is attached. Henceforth, any FDOT outdoor advertising application form submitted to the City by Outlook must include a specific authorization from CBS Outdoor indicating our approval and authorizing the City to process the FDOT form pursuant to our Settlement Agreement with the City. Please feel free to contact me if you have any questions. By letter dated October 24, 2008, Intervenor (through its attorney, Glenn Smith, Esquire), advised the City, among other things, that it was "withdraw[ing]" certain applications for outdoor advertising sign permits from the Department, including Petitioner's Application, that either it or Petitioner, on Intervenor's behalf, had previously submitted to the City to obtain the "Local Government Permission" required for such a Department permit. On February 13, 2009, Petitioner (through its attorney, Amanda Quirke, Esquire) sent a letter to Ms. Slazyk, which read, in pertinent part, as follows: As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped received copies for our files. Thank you for your assistance. Intervenor had not authorized Petitioner to make such a request on Intervenor's behalf. Accordingly, (through Mr. Smith) it sent Ms. Quirke the following letter, dated February 18, 2009: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is submitted in response to your February 13, 2009, letter to Lourdes Slazyk at the City of Miami ("City") seeking the approval of the City of the Renewal Applications. CBS has issued no authorization to OM [Petitioner] to submit the Renewal Applications to the City. Therefore, the February 13, 2009 Letter is ultra vires, and OM is directed to withdraw same. If OM desires to obtain CBS's authorization to process the Renewal Applications to the City, OM is directed to submit to CBS a written request for authorization to do so. OM's written request for authorization should address, among other things, the following: CBS's original authorization to OM to submit the FDOT Application to the City was to authorize OM to make submissions on behalf of CBS. Please confirm that any submission of Renewal Application by OM to the City will likewise be on behalf of CBS. Many questions remain relative as the various locations identified in the February 13, 2009, Letter as to whether the locations are "commercially viable." See Attachment A hereto. Please contact the undersigned to schedule a meeting to discuss resolution of these remaining questions. Can Partners Realty: As you know, the City has agreed to approve the Lummis Site. Therefore, the CanPartners Realty site is no longer under consideration and is not to be renewed. OM is hereby specifically directed to take no action to renew the FDOT Application for this site. CBS and its representative are available to discuss the February 13, 2009 Letter, the Renewal Applications and the contents of this letter. If OM desires to discuss same, please contact the undersigned for that purpose. That same day (February 18, 2009), Intervenor (through Mr. Smith) also sent a letter to Ms. Slazyk, in which it stated the following: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is being sent to you on behalf of CBS in response to the February 13, 2009 Letter to you from counsel for OM. In the February 13, 2009 Letter, counsel for OM requests approval by the City of Miami (the "City") of the Renewal Applications under the CBS Settlement Agreement with the City. Please be advised that CBS has not authorized OM to present the Renewal Applications to the City. Therefore, CBS requests that the City take no action on the Renewal Application until the City receives further communications regarding same from CBS. Notwithstanding Intervenor's directive (communicated in its February 18, 2009, letter to Ms. Quirke) that "the CanPartners Realty site . . . not . . . be renewed," on that same date (February 18, 2009), Petitioner (through Ms. Quirke) sent a follow-up letter to Ms. Slazyk, which read, in pertinent part, as follows: In accordance with the request of CBS, please accept this revised request for the renewal of the outdoor advertising applications, originally submitted on February 13, 2009. This revised request is a clarification that Outlook is requesting the renewal of the approval of the following applications on behalf of CBS. As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media of South Florida, on behalf of CBS, is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped, received copies for our files. Thank you for your assistance. The following day, February 19, 2009, Ms. Slazyk wrote back to Ms. Quirke, stating the following: I am in receipt of a faxed letter with back up from your office dated February 13, 2009 and faxed again, as modified, dated February 18, 2009 requesting renewal of certain outdoor advertising signs. I am informing you that, per the attached letters from CBS, and their representatives, the request is not authorized. Petitioner appealed Ms. Slazyk's denial of its renewal request to the City Zoning Board, which upheld the denial. Petitioner thereafter took a further appeal to the City Commission, but Petitioner subsequently withdrew this appeal. It is the City's position "today" (as expressed by Ms. Slazyk at hearing) that Petitioner does not have "Local Government Permission" from the City for the Proposed Sign. On May 4, 2009, almost a year after Ms. Slazyk had signed the "Local Government Permission" section of Petitioner's Application, Petitioner's Application was submitted to the Department.5 The Department contracts with Cardno TBE "to do physical inspections of potential advertising sites" that are the subject of permit applications. For the past 11 years, Matt Barnes has been employed by Cardno TBE as an outdoor advertising inspector responsible for conducting such inspections for the Department. Mr. Barnes was assigned the task of inspecting the CanPartners Parcel (the site where, according to Petitioner's Application, the Proposed Sign would be located). Using two different distance measuring devices,6 Mr. Barnes measured the distance "along the highway [I-95]" from a point directly above the Proposed Sign location (as indicated by a "wooden stake [sticking] about two feet out of the ground" that had been placed there by Petitioner) to the "nearest permitted sign" on the same side of the "highway" (which was to the south and bore tag numbers 412 and 413).7 He "came up with 970 feet both times." On May 19, 2009, the Department issued its Notice of Denied Outdoor Advertising Permit Application, announcing its intention to deny Petitioner's Application because, in pertinent part, the "[Proposed] [S]ign [did] not meet spacing requirements" and the "Local Government Permission" was given "more than six (6) months prior to [the Department's] receipt [of the application]." Petitioner subsequently requested a "formal administrative hearing" on the matter. On May 21, 2009, Intervenor filed an Application for Outdoor Advertising Permit for a sign to be located at 350 Northwest Second Street in the City on a parcel leased to Intervenor by Lummus Park Associates, LLC (Lummus Sign). Because of its proximity to the location of the Proposed Sign, the Lummus Sign would violate minimum spacing requirements and thus not be permittable were Petitioner's Application to be granted. Accordingly, Intervenor's application is being held in "pending status" by the Department until final action is taken on Petitioner's Application.8 On June 17, 2009, Petitioner (through one of its principals, Santiago Echemendia, Esquire) sent a letter to the City, which read, in pertinent part, as follows: This law firm represents Outlook Media of South Florida, LLC ("Outlook"). As you may be aware, Section 14 of SB 360 provides that any local government issued development order or building permit that has an expiration date of September 1, 2008 through January 1, 2012, is extended and renewed for a period of two years following its date of expiration. In accordance with Section 4(c) of the Settlement Agreement between CBS Outdoor, Inc. and the City of Miami (attached), "[i]f an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application." FDOT also takes the position that the local government permission on FDOT Form 575-070-04 must be issued within 180 days of application to FDOT for an FDOT tag for a sign location. On behalf of Outlook, pursuant to Section 14 of Senate Bill 360, please accept this letter as notification that Outlook is extending the local government permission provided on FDOT Form 575-070-04 for the following locations: * * * Site: CanPartners Folio Number: 01-4137-036-0020 Local Government Permission: 05/22/08 FDOT 180 Day Expiration: 11/18/08 2 Year Extension of FDOT 180 Day Expiration: 11/18/10 Original 280 Day Expiration: 02/26/09 2 Year Extension of City of Miami Expiration: 02/26/11 * * * This 2 year extension notification applies to extend both the FDOT 180 Day Expiration, as well as the 280 Day Expiration set forth in the CBS Settlement Agreement. Therefore, the expiration date for the aforementioned sign locations is extended until the dates listed in the columns entitled "2 Year Extension of FDOT 180 Day Expiration" and "2 Year Extension of City of Miami Expiration." A copy of the FDOT Form 575-070-04 for each of the sign locations is attached for your convenience. . . . On October 5, 2009 (approximately five months after the filing of Petitioner's Application with the Department), the City Commission, on second reading, adopted a resolution (Resolution File Number 09-01061) to enable it to participate in the "pilot program" established by Section 479.07(9)(c), Florida Statutes, "under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if [certain] requirements . . . are met." The resolution, which is still in effect, provides as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION EXPRESSING ITS INTENTION TO PARTICIPATE IN A PILOT PROGRAM ALLOWING 1,000 FOOT SPACING OF OUTDOOR ADVERTISING SIGNS ALONG EXPRESSWAYS IN THE CITY OF MIAMI ("CITY"), SUBJECT TO CONDITIONS; FURTHER AUTHORIZING THE CITY MANAGER TO NOTIFY THE FLORIDA DEPARTMENT OF TRANSPORTATION OF THE CITY'S INTENTION TO PARTICIPATE IN SUCH PILOT PROGRAM. WHEREAS, Section 10.4.5 of the Miami Zoning Ordinance prohibits new freestanding "Outdoor advertising signs" as defined therein, except for Outdoor advertising signs permitted pursuant to a Settlement Agreement that results in a net reduction in the number of Outdoor advertising signs located in the City of Miami (hereinafter "qualified settlement agreement"); and WHEREAS, by separate Resolutions, the City Commission has authorized the City Manager on behalf of the City of Miami ("City") to enter into qualified settlement agreements with the following sign owners: Carter Pritchett Hodges, Inc. d/b/a Carter Outdoor Advertising, Inc. ("Carter"), Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor ("Clear Channel"), and CBS Outdoor, Inc. (hereinafter "CBS"); and WHEREAS, at the time the qualified settlement agreements were approved by the City Commission, Section 479.07(9)(a), F.S. (2008), required new Outdoor advertising signs to be located at least one thousand five hundred feet from any other permitted sign on the same side on an interstate highway (hereinafter "1,500 foot spacing"); and WHEREAS, by House Bill 1021, the Florida Legislature recently amended s. 479.07(9)(c), F.S., in the 2009 Legislative Session, to include the City within a pilot program permitting new Outdoor advertising signs on an interstate highway to be located within one thousand feet from any other permitted sign on the same side of the interstate highway (hereinafter "1,000 foot spacing") under certain enumerated conditions, to wit: "(c) Notwithstanding paragraph (a)(1), there is established a pilot program in Orange, Hillsborough, and Osceola Counties, and within the boundaries of the City of Miami, under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if all other requirements of this chapter are met and if: The local government has adopted a plan, program, resolution, ordinance, or other policy encouraging the voluntary removal of signs in a downtown, historic, redevelopment, infill, or other designated area which also provides for a new or replacement sign to be erected on an interstate highway within that jurisdiction if a sign in the designated area is removed; The sign owner and the local government mutually agree to the terms of the removal and replacement; and The local government notifies the department of its intention to allow such removal and replacement as agreed upon pursuant to subparagraph 2." and WHEREAS, the City Commission deems it in the best interest of the City to participate in the pilot program authorized by s. 479.07(9)(c), F.S. (2009), which would permit 1,000 foot spacing for Outdoor advertising signs under the guidelines provided in this Resolution; NOW, THEREFORE BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. 2. Pursuant to s. 479.07(9)(c)(2), F.S. (2009), the City hereby adopts a pilot program encouraging the voluntary removal of signs within the boundaries of the City, which provides, subject to the conditions stated below, for a new or replacement sign to be erected on an interstate highway, with 1,000 foot spacing, if other Outdoor advertising signs within the boundaries of the City are removed. Section 3. Any sign owner seeking permission to erect an Outdoor advertising sign with 1,000 foot spacing under this pilot program shall meet the following conditions: The sign owner must have a qualified settlement agreement with the City; Any application for a new sign under the pilot program must be in accordance with all terms and conditions of the qualified settlement agreement unless otherwise specified in these conditions; In no event may an application for a new sign under the pilot program exceed the limitation on the number of signs otherwise permitted under the qualified settlement agreement; The duration of the pilot program will not exceed the term of the qualified settlement agreement; No LED Sign may be erected with 1,000 foot spacing unless allowed by an amendment to the sign owner's qualified settlement agreement pursuant to applicable provisions of the Miami Zoning Ordinance; Sign owners must specify in advance of applying for a 1,000 foot spacing application the locations of the signs proposed to be removed or already removed; Sign owners may not be delinquent on any financial obligation to the City as per their qualified settlement agreement; All Outdoor advertising signs erected with 1,000 foot spacing shall be designed with aluminum plating (example attached) or be subject to design review per Manager's designee or designees. Section 4. Should s. 479.07(9)(c), F. S. (2009) be repealed by the Florida Legislature, this pilot program shall automatically expire. Section 5. The City Manager is authorized (1) to notify the Florida Department of Transportation of the City's intention to allow removal and replacement of Outdoor advertising signs under 1,000 foot spacing as provided in this Resolution. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. Petitioner has not entered into "a qualified settlement agreement with the City" providing for the removal and replacement of outdoor advertising signs (as required by Section 3(a) of Resolution File Number 09-01061), nor has it at any time, much less "in advance" of having submitted its application (as required by Section 3(f) of Resolution File Number 09-01061), "specif[ied]" what sign(s) would be removed and replaced if the Proposed Sign were to be permitted. In or around November 2009, Petitioner retained the services of Mario Prats, a Florida-licensed surveyor since 1982, to measure how far the Proposed Sign location was to the nearest existing sign directly to the south of this location. When Mr. Prats went to the CanPartners Parcel, he did not see the stake that had been there in May 2009, when Mr. Barnes had done his measurements; nor did he see any other object marking the location of the Proposed Sign. He relied on a "drawing" to "approximate" where the sign would be. Using a "Topcon [measurement] device" and measuring, not along I-95, but the ramp to I-95, Mr. Prats determined that the distance between the Proposed Sign location and the closest sign south of this location was 1,032 feet. The only measurements offered and received into evidence to establish the distance between the Proposed Sign location and the nearest permitted sign (on the same side of the highway) were those taken by Mr. Barnes and Mr. Prats (as discussed above). Neither Mr. Barnes, nor Prats, determined that this distance was 1,500 feet or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order denying Petitioner's Application for the reasons set forth above. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of August, 2010.
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Holden Avenue, approximately 400 feet west of the intersection of Holden Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately 4.04 miles south of SR 50, as alleged in the violation notice. The subject sign is located on the south side of Holden Avenue, facing east and west which is parallel to U.S. 17/92/441. U.S. 17/19/441 is a federal-aid primary highway. Holden Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660 feet of a federal- aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected in February of 1985 without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in The subject sign is visible to traffic on U.S. 17/92/441, although it is perpendicular to Holden Avenue and parallel to U.S. 17/92/441. There is another permitted sign owned by Cashi Signs located on the west side of U.S. 17/92/441, approximately 686 feet south of the Holden Avenue intersection. This sign faces north and south, not east and west and is not on Holden Avenue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on July 26, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact In May of 1980, the Petitioner, Peterson Outdoor Advertising purchased a sign from Lamar Advertising Company. This sign is located on the east side of State Road 434, approximately 350 feet north of State Road 50 in Orange County, Florida. This sign is a stacked, back to back structure, having two faces which face north and south. The face which is the subject of this proceeding is the south face which faces northbound traffic on State Road 434. This face is visible to traffic on the main-traveled way of State Road 50. When the Petitioner purchased the subject sign from Lamar, it checked the records of Lamar, and the records of the Department of Transportation and the orange County Building and Zoning Department, to ascertain that the sign had all required building permits, electrical permits, county permits and state permits, and that the sign site was a legal location. The sign had all the permits that were required. The relevant document from the Department of Transportation pertaining to the subject sign was a letter dated March 13, 1978, from the Department's district office to Lamar. This letter returned the permit applications that had been submitted by Lamar in February of 1978 seeking permits for the subject sign, for the reason that "your applications do not require a state permit". The parties stipulated that, prior to May of 1984, the personnel of the Department's Fifth District gave advice that signs along non-controlled roads within 660 feet of a federal-aid primary highway did not need a state sign permit. The Petitioner relied on the determination of the Department that the subject sign site did not require a state permit, and purchased the sign from Lamar. In May of 1984 the Fifth District personnel of the Department corrected their erroneous prior interpretation of the statutes and rules they administer, and permits were thereafter required for all signs within 660 feet of a federal-aid primary highway if they were visible from the main-traveled way of the controlled road. On July 1, 1985, the Department's outdoor advertising inspector advised the Petitioner that the south faces of the subject sign required a state permit. These are the faces in question in this proceeding. In compliance with this advice from the Department, the Petitioner filed permit applications for both the north faces and the south faces of the subject sign. The Department returned the applications for the north faces for the reason that a permit was not required. The north faces are not involved in this proceeding. The Department denied the Petitioner's applications for the south faces by memorandum dated October 8, 1985, for the reason that these faces conflicted with permits held by Maxmedia, Inc., in that they were not located more than 1,000 feet from the Maxmedia sign. The Maxmedia permits authorized a sign which was erected at a point 740 feet from the subject sign of the Respondent. The permits held by Maxmedia were issued by the Department on May 8, 1984. Prior to July 1, 1984, the spacing rule for signs on a federal-aid primary highway required 500 feet between signs. On July 1, 1984, this spacing requirement was increased to require 1,000 feet on a federal-aid primary highway. State Road 50 is a federal-aid primary highway, and the area within 660 feet from State Road 50 is a controlled area. The Petitioner's sign 350 feet north of State Road 50 was more than 500 feet from any other structure prior to July 1, 1984. It is not more than 1,000 feet from the Maxmedia signs now, however.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Peterson Outdoor Advertising for a permit on the east side of State Road 434, approximately 350 feet north of State Road 50, facing south, in Orange County, Florida, be GRANTED. THIS RECOMMENDED ORDER entered on this 29th day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1986. COPIES FURNISHED: Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes. University Boulevard (SR 109) is not a federal-aid primary highway. Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing. The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard. Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by 48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit. This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign. The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
The Issue Whether Respondent was in violation of Subsection 479.07(1), Florida Statutes, providing for the permitting of outdoor advertising structures.
Findings Of Fact Respondent maintained two outdoor advertising signs adjacent to U.S. Highway 90 in Gadsden County, Florida. The first sign listed on the notice of outdoor advertising law violation dated August 5, 1974, has been removed. No further action is necessary in regards to this sign. The second sign listed on the August 5, 1974, Notice of Violation is located adjacent to U.S. Highway 90 1/2 mile West of the city limits of Quincy, Florida. The second sign was not permitted in the years 1973 or 1974. Respondent has not made application for a current permit as of the date of hearing.
