The Issue Whether the Petitioner's outdoor advertising sign located at 1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF. Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits. On June 26, 1997, the above-referenced sign did not have a current valid permit. On June 26, 1997, the above-referenced sign was not an on-premises sign. Charles Tucker is the owner of the subject sign and the property on which it is located. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon. Charles Tucker has owned the subject sign since 1974. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes. There has been a seven-year period of time during which the subject sign displayed advertising copy. No structural changes have been undertaken on the subject sign since it was constructed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued. DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Mark Gamble Real Estate Representative Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811 Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact On November 3, 1982, outdoor advertising sign permits AR946-06 and AK947-06 were issued by the Department of Transportation to Sandy Advertising Company. The permits were for a location on the west (north) side of U.S. Highway 90 approximately two miles east of its intersection with U.S. Highway 29 within the city limits of Pensacola, Florida. Sandy Advertising Company transferred those permits to Lamar Advertising Company of Pensacola, Inc. Annual renewal payments have been made each year in a timely manner by Lamar Advertising Company of Pensacola, Inc. No permit tags have been displayed at the Lamar sites and no sign has been built or maintained at the Lamar sites since issuance of the permits. Without having submitted an application for a permit to the Department of Transportation, Outdoor Media of Pensacola, Inc., obtained a building permit from the City of Pensacola for the erection of an outdoor advertising sign located in Escambia County approximately 3,790 feet east of State Road 296 on the north side of U.S. Highway 90. Pursuant to the building permit, Outdoor Media erected a sign at that location. The sign had an east and a west face and was less than 500 feet from the site for which permits AK946-06 and AK947-06 were issued. Each face of the sign required a separate permit from the Department of Transportation. Learning of the erection of Outdoor Media's sign, the Department notified Petitioner to remove it. Instead Outdoor Media applied for two sign permits for each face of the sign. On August 8, 1988, the Department of Transportation received Petitioner's applications for a state outdoor advertising permit. The applications were for each face of the sign located on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. The applications were denied on the ground that two other permits, permit AK946- 06 and permit AK947-06, had been issued to Lamar Advertising of Pensacola, Inc., for a location on the same side of the highway within one thousand feet of Petitioner's site. The spacing impediment caused by the earlier permits is the sole basis for denial of Petitioner's permit applications by the Department of Transportation. Petitioner meets all other permit requirements. In 1984, the legislature extensively revised Chapter 479, Florida Statutes. See Chapter 84-227, Laws of Florida. Of particular concern in this proceeding are the changes to Section 479.07, Florida Statutes, and whether those changes apply to permits AK946-06 and AK947-06. The revisions to this section introduced very specific tag display as well as sign erection and maintenance requirements for all permits. The revisions increased the fee schedules and provided that all permits expire annually on January 15. Section 479.07, Florida Statutes, as amended states in part: (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permit is valid only for the location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100. A permittee shall at all times maintain the permission of the owner or other persons in lawful control of the sign site to have and maintain a sign at such site. (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags which are not renewed shall be returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side- to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main- traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main- traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. The effective date(s) of the amendments to Section 479.07, Florida Statutes, is stated in Section 27 of Law 84-227. Section 27 specifically and explicitly made permits issued prior to June 30, 1984 subject to the new provisions of Law 84-227. Section 27 states: This act shall take effect October 1, 1984, except that the amendments to Section 479.07 F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. In spite of the language of Section 27, it is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within thirty (30) days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with Sections 479.07(5)(b) and (8)(a), Florida Statutes. While DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes, it is applied statewide and has been held to be an invalid unpromulgated rule in Case NO. 5227R, Final Order issued December 29th, 1988. DOT relies upon the definition of "non-conforming" signs given in Section 479.01(12), Florida Statutes. Section 479.01(12), Florida Statutes, states in part: `Nonconforming sign' means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. [Emphasis supplied.] 1/ DOT does not rely upon the exceptions listed in Section 479.16, Florida Statutes, as amended by Chapter 84-227. The exceptions are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits." It is DOT's view that permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained or displayed. These "secret signs" can only be discovered after the application is submitted and DOT checks its computer records. The effect of DOT's interpretation is that pre- 1984 outdoor advertising sign permits can exist into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as the permittee renews its permit. This interpretation is directly opposed to the legislature's purpose in enacting the 1984 amendments, i.e., the prevention of advertisers stockpiling unused sites and permits. Moreover, this interpretation is contrary to the pre- or post-1984 statutory language and is not a reasonable interpretation of the statute. DOT bases it's interpretation on the ground that the constitution prohibits the retroactive application of the 1984 amendments to permits existing prior to the effective date of those amendments. DOT did not offer any evidence as to the accuracy of its view on the requirements of the constitution. Failing such evidentiary support, DOT has failed to carry its burden of proof when utilizing an unpromulgated rule on a case by case basis. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause. Section 120.57(1) Florida Statutes. Section 479.07, Florida Statutes, was amended by Chapter 84-227, Laws of Florida, to require that parties obtaining outdoor advertising permits post their permit tags within thirty (30) days and erect their signs within two hundred seventy (270) days or their permits would automatically become void. The amendment became effective July 1, 1984. The amendment also expressly and explicitly provided for treatment of pre-July 1, 1984 permits by stating" . . . any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. Section 479.01(12) only makes exceptions for nonconforming "signs lawfully erected." Section 479.07(9)(c) only provides that nothing in subsection (9), pertaining to spacing requirements or permitting of new signs after July 1, 1984, may be construed to cause a sign which is conforming on the effective date of the Act to become nonconforming. See the definition of "sign" contained in Section 479.01(14), Florida Statutes, and of "erect" contained in Section 479.01(4), Florida Statutes. However, in spite of the clear language of the statutes, DOT interprets the term "permitted signs" as including permits issued prior to July 1, 1984, but which have no sign erected on the site. DOT has placed an interpretation upon the statutes that is not apparent from their language. The plain language of Sections 479.01(12) and 479.07(9)(c) only applies to signs which have been constructed on the permit site. The sections do not apply where no sign has been constructed. Since no signs were ever erected on the sites covered by permit AK946-06 and AK947-06 neither Section 479.01(12) nor 479.07(9)(c) applies to Lamar's permits. Further, DOT interprets the amendment to Section 479.07, now codified as Section 479.07(5)(a), requiring permit display and sign erection within a specified time period, to be applicable only to permits initially issued after the effective date of July 1, 1984. The agency has not enforced that subsection against preexisting permits and renewals of such preexisting permits, irrespective of whether or not a sign has ever been erected on the permitted site. However, the agency has applied and enforced against preexisting permits all other portions of the amendments, including but not limited to the mandatory recurring uniform annual January 15 renewal date and increased renewal fee with regard to preexisting permits. The agency has taken this approach on the grounds that the constitution prohibited the amendment from being applied retroactively to such preexisting permits. In Administrative Case NO. 88-5227R, this interpretation was held to be an invalid unpromulgated rule. However, agencies have the choice of properly promulgating rules and applying them with the full force and effect of law or of fully explicating those policies by demonstrating the policies' reasonableness and factual accuracy on a case by case basis in Section 120.57 proceedings. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Amos v. Department of Health and Rehabilitative Services, 444 So.2d (Fla, 1st DCA 1983); Gulf Coast Home Health Services Of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987). As noted earlier, the sole reason for DOT's policy was that it was required by the constitution. Such a bare bones claim as "the constitution requires it" is tantamount to the claim that was asserted in Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980) that a previous statutory interpretation was "wrong as a matter of law." In Florida Cities, no record foundation was made for the non-rule policy being followed in that case. The Florida Supreme Court held that such a rationale was not sustainable absent adequate record support for the application of non-rule agency policy. In this case, DOT has failed to affirmatively show the reasonableness and factual accuracy of the policy that sign permits which were issued prior to July 1, 1984, should not be subject to Section 479.07(5), Florida Statutes, enforcement and should be treated as if they constituted, erected and maintained signs for purposes of Section 479.07(9), Florida Statutes. It is doubtful that DOT could ever show the accuracy of its view of the constitution. The case law in the area clearly establishes that permits such as these are not property in the constitutional sense. Such permits do not confer any right, estate or vested interest, and are revocable at the will of the legislature. Such permits are also subject to new permit conditions. State ex rel First Presbyterian Church of Miami v. Fuller, 187 So. 148 (Fla. 1939); City of Miami Beach v. Deauville Operating Corp., 129 So.2d 185 ( Fla. 3d DCA 1961) and Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 ( Fla. 1st DCA 1977). Moreover, the 1984 amendments to Chapter 479 do not require retroactive application to be applied to permits AK946-06 and AK947-06. The new permit conditions were applicable only upon the expiration of the old permits on January 15. Thereafter, the new permit conditions applied to the renewal. Therefore, since Lamar did not build any signs on the sites covered by either permit AK946-06 or AK947-06 within 270 days of its first renewal after the effective date of the statutory revisions to Chapter 479, Florida Statutes, and has not posted the required tags at the sites, permits AK946-06 and AK947-06 are void and cannot be used as a basis for denying Petitioner's sign applications. As in Florida Cities, having failed to establish the reasonableness and accuracy of its policy, the foregoing policy cannot form the basis of the permit denials. This is especially true in light of the fact that DOT's policy ignores the clear language of the statutory amendments.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order voiding Permits AK946-06 and AK947-06, held by Respondent, Lamar Advertising Company, Inc., and granting the applications of Outdoor Media of Pensacola, Inc. DONE and ENTERED this 23rd day of May, 1990, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990.
Findings Of Fact Based on the record transmitted to the Division of Administrative Hearings by the Petitioner, the following are found as the relevant facts: The Respondent, Hinson Oil Company, owns four outdoor advertising signs in Gadsden County, Florida, located on the south side of I-10, in the proximity of County Road 270-A. On October 3, 1984, the Department of Transportation notified the Respondent in writing that these signs violated Section 479.11, Florida Statutes, in that they were alleged to be located in an area which is not a zoned or unzoned commercial or industrial area. The return receipt was signed by E. W. Hinson, Jr., on October 9, 1984. Paragraph 2 of the notices of violation served on October 3 and received on October 9, 1984, sets forth the following procedural requirements: You must comply with the applicable provisions of said Statute(s) and Cede(s) within thirty (30) days from the date of this notice, . . . or in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice . . . E. W. Hinson, Jr., on behalf of the Respondent, requested an administrative hearing by letter dated November 16, 1984. This request was received by the Department of Transportation clerk on November 19, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing with prejudice the Respondent's request for an administrative hearing in each of these cases. THIS RECOMMENDED ORDER entered this 24th day of January, 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 24th day of January, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire and Maxine Fay Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 E. W. Hinson, Jr. Hinson Oil Company P.O. Box 1168 Quincy, Florida 32351 John Curry, Esquire P.O. Drawer 391 Quincy, Florida 32351
The Issue As to DOAH Case Nos. 14-4926 and 14-4927, the issues are whether the billboards identified in the notices of violation are located on the premises of Respondent's business and, thus, exempt from licensure; and, if not, whether the billboards are eligible for licensure pursuant to section 479.07, Florida Statutes, or, alternatively, the "grandfather" provision set forth in section 479.105, Florida Statutes. With respect to DOAH Case No. 14-4928, the issue is whether Respondent engaged in, or benefitted from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact I. DOAH Case Nos. 14-4926 & 14-4927 The Parties The Respondent in these proceedings is I-10 Pecan House, Inc. ("Pecan House"), an entity currently owned and managed by Olan Q. Nobles. As discussed in greater detail below, Pecan House is a small country store that has conducted business in Jefferson County, Florida, for nearly 40 years. The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 600 feet of, and visible from, interstate highways. The Events In or around 1976, Erma Jean Walker (Mr. Nobles' sister) and her husband, Lyman Walker, III, purchased three tracts of land that are relevant to this proceeding. The first such parcel, upon which the Walkers quickly constructed an open- air market, comprises one acre and is located on State Road 257, immediately north of the intersection of that roadway and I-10. The second relevant parcel, .18 acres in size and located a short distance to the southeast of the first tract, is situated adjacent to the westbound lanes of I-10. Upon their acquisition of this parcel, the Walkers constructed a billboard that advertised the open-air market and the related business activities conducted on the third parcel. The third parcel, which is roughly 2.3 acres in size and likewise adjoins the westbound lanes of I-10, is located less than 1000 feet to the east of the second tract. It is upon this tract that, in mid-to-late 1976, the Walkers built a concrete structure to be used for the purpose of manufacturing candy and jelly——products the Walkers offered for sale at the nearby open-air market. By the end of 1976, the Walkers also constructed (upon the third parcel) a billboard advertising the open-air market and jelly/candy manufacture. Although the billboards referenced above were visible from I-10 and located within 600 feet of the roadway——and, thus, within the Department's "controlled area"——the Walkers did not apply for outdoor advertising permits. This is because, as the Department concedes, the billboards were exempt from licensure from 1976 until the mid-1990s (or perhaps later, as Mr. Nobles asserts) under the "on premises" exemption set forth in section 479.16, Florida Statutes. Under the definition of "premises" in effect during that period, the land upon which a sign was located did not need to be contiguous to the advertised business in order for the exemption to apply. For reasons that will soon be apparent, it is necessary to inject a third billboard into this discussion: in 1993, the Walkers constructed on the third tract of land a "double-stack" billboard, which is situated less than 200 feet and 1000 feet, respectively, from the signs erected in 1976 upon the third and second tracts. Although the double-stack billboard would have ostensibly satisfied the on-premises exemption, the Walkers nevertheless applied for——and were granted——an outdoor advertising permit. For all that appears, the Department has never initiated any proceedings to revoke the permit, which remains valid to this day. In 1995, Mrs. Walker transferred control of Pecan House to Mr. Nobles, who until that time had assisted the Walkers on an as-needed basis. Soon thereafter, Mr. Nobles upgraded the open-air market (on the first parcel) to a secure building and, of particular relevance here, ceased all manufacturing activities at the concrete building (on the third parcel). At or around that time, the Legislature amended the definition of "premises" to include a contiguity requirement.3/ This is significant, for the second and third parcels——the locations of the two billboards at issue herein——are not contiguous to the first parcel but, rather, are separated by a tract in which neither the Walkers nor Mr. Nobles holds a leasehold or ownership interest. Further, there is no recorded easement connecting Mr. Nobles' three parcels. Thus, although the two billboards constructed in 1976 lost their on-premises status in the mid-1990s, this fact apparently went unnoticed by the Department for roughly 13 years. Then, in March of 2008, the Department issued notices of violation in connection with both billboards. Among other things, the notices alleged that "outdoor advertising permit[s] [were] required, but ha[d] not been issued" for the billboards, which Mr. Nobles was instructed to remove within 30 days. A short time thereafter, an inspector or other agent of the Department conducted, in Mr. Nobles' presence, an examination of the 1976 billboards and Pecan House's business operations. At the conclusion of her inspection, the Department employee erroneously opined that, in fact, there was "no problem"4/ with the billboards in question, which Mr. Nobles reasonably took to mean that the signs continued to satisfy the on-premises exemption and, thus, were exempt from licensure. The reasonableness of this understanding was bolstered by the fact that, subsequent to the inspection, Mr. Nobles heard nothing more from the Department concerning the March 2008 notices of violation.5/ More than four years later, on December 17, 2012, the Department issued new notices of violation in connection with the 1976 billboards: notice 1352, relating to the billboard constructed upon the third parcel, which presently reads "Exit Now" and bears a Shell gasoline logo (hereinafter "Exit Now"); and notice 1487, relating to the billboard erected upon the second parcel, which presently reads "Welcome to Big O's / We Appreciate Your Business" (hereinafter "Big O's"). The parties thereafter engaged in settlement negotiations, in the course of which Mr. Nobles' counsel struggled mightily to convince the Department that the billboards continued to satisfy the on-premises exemption. When the Department rejected this argument, Mr. Nobles applied for an outdoor advertising permit for each billboard. The applications were ultimately denied, prompting the Department to refer the matters to DOAH for further proceedings. Based upon the evidence adduced at final hearing, it is evident that the billboards in question no longer meet the on-premises exemption and, thus, are subject to removal unless the signs meet either the current statutory requirements for a permit or, alternatively, the "grandfather" provision set forth in section 479.105, which authorizes licensure if the billboards satisfy earlier statutory criteria and certain other conditions. Eligibility for Licensure – "Exit Now" Beginning first with the "Exit Now" billboard, the record makes pellucid that the current statutory requirements for licensure cannot be satisfied. Among other things, the sign is located a mere 190 feet from the permitted, double-stack billboard erected in 1993, a distance far less than the minimum spacing requirement of 1500 feet. See § 479.07(9)(a)1., Fla. Stat. As for the potential applicability of the grandfather provision to the "Exit Now" billboard, it is critical to observe that the Department's delay of nearly five years (March of 2008 through December of 2012) in pursuing removal has placed Mr. Nobles at a significant disadvantage. In particular, had the Department moved forward in 2008——instead of inexplicably abandoning the action, which, along with the statements of its inspector, led Mr. Nobles to believe, incorrectly, that no permit was required——Mr. Nobles likely would have applied for a permit,6/ which the Department would have evaluated pursuant to the version of the grandfather provision in effect at that time. This is significant, for the 2008 codification of the grandfather provision, which remained unchanged until July 1, 2014, did not preclude licensure in situations where a billboard had previously enjoyed on-premises status or some other recognized exemption from the permitting requirement. Further, the pre-July 1, 2014, grandfather provision was quite favorable in that it allowed a potential licensee to demonstrate that the billboard would have met the criteria for licensure in effect "[a]t any time during the period in which the sign has been erected." § 479.105(1)(e)2., Fla. Stat. (2013)(emphasis added). The current version of the grandfather provision is quite a different animal. For one thing, grandfather status can only be granted if the billboard at issue "has never been exempt" from permitting. § 479.105(1)(c)2., Fla. Stat. (2014) (emphasis added). For another thing, the current grandfather provision looks not at "any" time in which the sign has been erected but, rather, at the criteria in effect during the initial seven years in which the sign was subject to the Department's jurisdiction. § 479.105(1)(c)2.b., Fla. Stat. (2014). As Mr. Nobles readily acknowledges, his effort to obtain a permit for the "Exit Now" billboard is a nonstarter under the 2014 version of the grandfather provision, whose plain language prohibits the issuance of a permit where, as here, the sign was previously exempt from licensure. This does not end the matter, however, for the undersigned finds that the Department's unjustified delay in pursuing removal——along with its agent's erroneous statement that the billboard was legal, upon which Mr. Nobles relied——requires that the "Exit Now" application be evaluated under the version of the grandfather provision that was in effect from 2008 until July 1, 2014. Pursuant to the pre-2014 codification of section 479.105, "grandfathering" was authorized if the owner could demonstrate: 1) that the sign in question had been unpermitted, structurally unchanged, and continuously maintained at the same location for at least seven years; 2) that, at any time during the period in which the sign has been erected, the sign would have satisfied the criteria established in chapter 479 for issuance of a permit; 3) that the Department did not file a notice of violation or take other action to remove the sign during the initial seven-year period in which the sign was unpermitted, structurally unchanged, and continuously maintained at the same location; and 4) that the sign is not located on a state right-of-way and is not a safety hazard. § 479.105(1)(e), Fla. Stat. (2013). Upon such a showing, the Department was authorized to treat the sign as conforming or nonconforming and issue a permit. Turing to the merits, the first prong is easily satisfied, as the "Exit Now" sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for 39 years, far longer than the seven-year period the statute requires. The third prong is also met, for the record makes clear that the Department took no action to pursue removal during the initial seven-year period, i.e., 1976 through 1983, in which the sign was unpermitted, structurally unchanged, and continuously maintained. In addition, the Department stipulates that the sign neither poses a safety hazard nor is located upon a state right-of-way, thereby satisfying the fourth prong.7/ This leaves only the second prong, which asks if the sign would have met the criteria for licensure at any time after it was erected. The selection of any time period subsequent to 1993 would surely doom the application, as the sign would be unable to satisfy the minimum spacing requirement due to its close physical proximity to the double-stack billboard——which, as noted previously, was issued a permit in 1993 and remains licensed. Prior to 1993, however, there does not appear to be any spacing conflict that would preclude licensure in this instance.8/ With the spacing concern resolved (and the relevant period of inquiry narrowed to "any" time between 1976 and 1993), the undersigned turns to the only other criterion for licensure that appears to be in dispute: section 479.111(2), Florida Statutes, which authorizes the issuance of a permit only if the sign is located in "commercial-zoned and industrial-zoned areas or commercial-unzoned or industrial-unzoned areas." Unfortunately, this issue cannot be resolved on the instant record, for there is a dearth of persuasive evidence concerning the zoning designation of the third parcel (the location of the "Exit Now" sign) during the critical period of inquiry. Indeed, the record contains only the Department's speculative assumption that, because the area is presently unzoned, it therefore must have been unzoned at all times in the past.9/ Further, even accepting the Department's assumption at face value, it is impossible to determine whether the business activities conducted on the parcel from 1976 until the mid- 1990s——namely, the manufacture of candy and jelly and the sale of pecans——would satisfy the use test at any time between 1976 and 1993.10/ Under ordinary circumstances, such an absence of evidence would necessitate an adverse result for the permit applicant. Owing, however, to the unusual history and posture of this case, as well as the undersigned's conclusion that the pre-2014 grandfather provision should govern, it is recommended that the Department reevaluate Mr. Nobles' application to determine if the third parcel could have satisfied the requirements of 479.111(2) at any point between 1976 and 1993. Eligibility for Licensure – "Big O's" The undersigned turns next to the "Big O's" sign, which, like the "Exit Now" billboard, is unable to satisfy current licensing criteria due, among other reasons, to its close proximity to the double-stack billboard.11/ Further, as with the "Exit Now" billboard, the fact that the "Big O's" sign was previously exempt from licensure (owing to its on-premises status from 1976 through the mid-1990s) renders it ineligible for licensure under the 2014 codification of the grandfather provision. However, in sharp contrast to the "Exit Now" billboard, the "Big O's" sign is positioned within 500 feet of an interstate exit ramp, thereby constituting a safety hazard. This distinction is fatal to Mr. Nobles, as every codification of the grandfather provision from the mid-90s (when the sign lost its on-premises status) onward has prohibited the licensure of billboards that present a safety issue. The short of it, then, is that the sign was no more eligible for licensure in the past than it is today, which obviates the need for any further analysis under the pre-2014 version of the grandfather provision. For the reasons articulated above, Mr. Nobles has failed to prove that the "Big O's" sign is exempt from licensure by virtue of the "on-premises" exception. Further, the evidence conclusively demonstrates that, due to safety concerns, the sign would not have been eligible for licensure at any point in time. Accordingly, the undersigned is constrained to recommend the sign's removal pursuant to section 479.105. II. DOAH Case No. 14-4928 As noted earlier in this Order, DOAH Case No. 14-4928 involves an allegation that Mr. Nobles engaged in——or benefitted from——the unpermitted removal, cutting, or trimming of vegetation. The relevant facts are recounted below. On January 21, 2013, Mr. Nobles executed a lease agreement with Michael McDougal, who owns a parcel of land adjacent to the eastbound lanes of I-10, approximately .6 miles from County Road 257. In relevant part, the terms of the lease authorized Mr. Nobles to place on the property a pickup truck, attached to which was a billboard that advertised the I-10 Pecan House. Shortly thereafter, in late January 2013, Mr. Nobles relocated the truck to a position on Mr. McDougal's property a short distance to the south of the fence line that separates the parcel from the Department's right-of-way. But trouble soon followed: in late February or early March, the Department received several reports of unusual vegetation removal in the general area of Mr. Nobles' truck sign. In response, the Department requested one of its contractors, Metric Engineering, Inc. ("Metric"), to conduct a field inspection of the area. The inspection was performed on or about March 12, 2013, by Bill Armstrong, a certified arborist employed by Metric. During the course of his inspection, Mr. Armstrong observed, first, an area that the Department had previously cleared to facilitate the installation of a new fence, which had yet to be installed. This particular area, which ran along the length of the fence line and had been cleared within the preceding six months, had a width (as measured from the fence toward the roadway) of approximately 12 feet. Immediately beyond this 12-foot zone, however, Mr. Armstrong noticed evidence of other activity that had occurred much more recently. Specifically, Mr. Armstrong observed, on the side of the fence immediately opposite Mr. Nobles' truck, an area 120 feet in length (parallel to the fence line) and approximately 25 feet in width that had been cleared of vegetation. Within this 120 by 25 foot area, Mr. Armstrong discovered 30 tree stumps, which, upon close examination, exhibited signs of having been recently cut. Such indications included the presence of sawdust; the fact that the stumps were bright in color and relatively clean; and the observation of fresh debris at both ends of the swath. These findings were recorded in a report dated March 25, 2013, which Metric promptly forwarded to Morris Pigott, the Department's Project Manager of Vegetation and Resource Management. Several weeks later, Mr. Pigott conducted his own site visit, during which he examined the particular area that had concerned Mr. Armstrong. Consistent with the findings contained in Metric's report, Mr. Pigott observed, within the 120 by 25 foot area, numerous, freshly-cut tree stumps. Mr. Pigott further concluded, quite reasonably, that this activity had not been performed by the Department or one of its contractors, for the stumps had not been cut to ground level, the vegetation immediately to the east and west of the area was "very dense," and the area had not been "grubbed."12/ (As explained during the final hearing, "grubbing" involves the removal of the top six inches of surface material, an action designed to prevent regrowth.) To cinch matters, Mr. Pigott observed that the selective clearing of the 120 by 25 foot area had enhanced the visibility of Mr. Nobles' truck-mounted billboard for eastbound traffic. Thereafter, on April 14, 2013, Mr. Pigott cited Mr. Nobles for violating section 479.106(7), which provides that any person who engages in or benefits from the unauthorized removal of vegetation shall be subject to an administrative penalty. Mr. Pigott further notified Mr. Nobles that, pursuant to Florida Administrative Code Rule 14-10.057, the Department intended to assess mitigation in the amount of $8,304.25. Mr. Nobles promptly denied any and all involvement in the removal, claiming that a road crew had cleared the vegetation two years earlier. In response, Mr. Pigott contacted Mr. Armstrong, disclosed Mr. Nobles' explanation, and asked that a follow-up inspection be performed. Mr. Armstrong conducted his second inspection on August 8, 2013. At that time, Mr. Armstrong observed that Mr. Nobles' truck-mounted billboard was still present, and that the stumps within the 120 by 25 foot area had sprouted and grown to a height of two to three feet. Samples of the sprouts were collected, which Mr. Armstrong later examined for evidence of internodes——i.e., rings that denote growth, with one ring forming during each growing season. Due to the absence of internodes, Mr. Armstrong concluded that the stumps were in their first growing season, thereby eliminating any possibility that the vegetation had been cleared several years earlier.13/ Finding that the evidence proves clearly and convincingly that Mr. Nobles benefitted from the unauthorized vegetation removal, the undersigned turns finally to the question of mitigation. As noted above, the Department seeks mitigation in the amount of $8,304.25, a figure derived from Mr. Armstrong's use of the formula referenced in rule 14-10.057. It is at this juncture that the Department's case falters. Although Mr. Armstrong offered credible testimony concerning the number and species of trees (water oaks, Florida maples, and the like) that were removed from the area, the record evidence regarding their market value consists entirely of hearsay. Indeed, the Department called no witness who possessed any firsthand knowledge as to the market value of the trees; instead, it presented only the testimony of Mr. Armstrong, who explained that he had telephoned three nurseries, obtained price quotes over the phone, averaged the three figures, and plugged the averages into the formula. To be clear, the undersigned has no quarrel with either the formula or Mr. Armstrong's initial reliance upon the price quotes. The problem is that, in the absence of a stipulation from Mr. Nobles concerning the amount of mitigation, the Department was obligated to adduce at least some non-hearsay evidence of the market values——the starting point of the calculations. Inasmuch as the record is devoid of such evidence, the Department's request for mitigation must be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: DOAH Case No. 14-4926 RECOMMENDED that the Department of Transportation enter a final order finding that the billboard identified in Notice of Violation 1487 ("Big O's") is illegal and subject to removal pursuant to section 479.105, Florida Statutes. It is further recommended that the Department enter a final order denying the related application for an outdoor advertising permit. DOAH Case No. 14-4927 RECOMMENDED that the Department of Transportation take no further action on Notice of Violation 1352 until such time that it reevaluates (under the pre-July 1, 2014, codification of section 479.105) the related application for an outdoor advertising permit. If the application is granted, the Department should enter a final order dismissing Notice of Violation 1352. In the event, however, the application is once again denied, the Department should afford Respondent a point of entry into the administrative process. DOAH Case No. 14-4928 RECOMMENDED that the Department of Transportation enter a final order finding Respondent guilty of violating section 479.106, Florida Statutes, and imposing an administrative fine of $1,000.00 DONE AND ENTERED this 4th day of May, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2015.
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice. The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441. U.S. 17/92/441 is a federal-aid primary highway. Kaley 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 March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding. By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required. Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue. There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue. The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1981, but which had not been issued. It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 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 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. 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 =================================================================
Findings Of Fact In March of 1984 the Respondent applied to the Department for a permit to erect a sign facing east at the location in question in this proceeding. The actual location proposed was 350 feet from the right-of-way of U.S. 17/92/441, adjacent to Oak Ridge Road, in Orange County, Florida. U.S. 17/92/441 is a federal-aid primary highway. Oak Ridge Road is a non-controlled road. There is another sign owned by the Respondent located 20 to 25 feet from the subject sign, but there is no evidence in the record to show which direction this other sign faces, or whether the two signs are on the same side of the highway. By memorandum dated April 5, 1984, the Department returned the Respondent's application for the reason that the sign location requested "is not on a federal-aid primary highway", and the Respondent "need only comply with local regulations". This memorandum stated further that "a state sign permit is not required" to locate a sign at the subject site. The application submitted by the Respondent in March of 1984 was returned with the notation on it that the proposed sign "need only comply with local regulations". Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sought a permit. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/82/441 and at right angles to Oak Ridge Road. The notice of violation issued for the subject sign in July of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1984. 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. It was as a result of this erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1984 with the notation on it that a permit was not required. This erroneous interpretation allowed the Respondent's sign to be built.
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 Whether the signs of the Petitioner should be removed for violations of Section 479.07(2) and 14-10.04(2), no current permit and the violation of Section 479.07(2) and 14-10.06(3), a spacing violation.
Findings Of Fact An alleged violation of Chapter 479, Section 335 and 339.31, Florida Statutes, and notice to show cause was sent to the Petitioner on the 13th day of February, 1978 alleging that a sign owned by Petitioner located on a roof top thirty (30) feet east of Mills Avenue and State Road 50 with copy reading "WFTV Eyewitness News" is in violation of Section 479.07(2), having no current permit visible. A second sign located on the same roof top, 30 feet east of Mills Avenue and State Road 50 with copy "B.J. 105 Radio Station", was in violation of Section 479.07(2) as having no current permit visible and also in violation of Section 479.02(2), Rule 14-10-06(3), Florida Administrative Code, violation of a spacing requirement. An application was made by Petitioner for a permit but was denied by the Respondent for the two subject signs. The sign with the copy "B.J. 105 Radio Station" is less than 500 feet from a permitted billboard and has no current permit tag attached thereto. The sign with the copy "WFTV Eyewitness News", has no current permit tag attached thereto. The subject signs advertise off-premise businesses and must have permits from the Respondent, Department of Transportation. No permits have been issued for either of the subject signs. Petitioner has agreed that any improper use of the sign will be discontinued and contemplates an "on-premise or on-site" sign which the Respondent has agreed is a proper use and not in violation of the statutes and rules.
Recommendation Remove the signs of Petitioner within 30 days from the date hereof unless such signs are permitted by the Respondent after a change in the copy on the sign structures. DONE AND ORDERED this 18th day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce E. Chapin, Esquire 201 East Pine Street Orlando, Florida 32801 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Henderson Signs is a partnership which was initially owned and operated by Ladon Henderson and his wife, Margie Henderson. When Ladon Henderson became inactive, his son, Gene Henderson, became a partner and he now operates the business with Margie Henderson. Henderson Signs has been licensed by the Department of Transportation to engage in the outdoor advertising business since before the year 1976. This license was renewed annually as required, and Henderson Signs now holds Outdoor Advertising License Number 20157 reissued on November 16, 1982. Henderson Signs has operated in Washington, Gadsden and Jackson Counties, but in July of 1981 this business was sold to Tri-State Systems, Inc., and pursuant to the terms of this sale Henderson Signs may not now engage in the outdoor advertising business in these three counties. It may, however, operate elsewhere. Between the years 1978 and 1981 Henderson Signs has received 17 notices of violations from the Department of Transportation charging that signs at 20 locations on Interstate 10 in Jackson County were erected illegally. This resulted in the opening of 22 dockets in the Division of Administrative Hearings to litigate administratively the charges against Henderson Signs. In 14 of these dockets the findings and conclusions resulted in a determination that Henderson was guilty as charged. Some of these guilty findings were appealed to the District Court of Appeals, where they were affirmed on the merits. Some were affirmed by per curiam opinions. Ten other cases have been docketed in this Division involving signs now owned by Tri-State Systems, Inc., pursuant to the sale by Henderson Signs. (This data has been taken from exhibits 1 and 2 offered by the Department.) This evidence demonstrates that the Respondent has repeatedly erected outdoor advertising signs along Inter-state 10 in Jackson County which were found to be illegal signs because of spacing violations, zoning violations, or lack of the required permit authorizing their erection. The legal position of Henderson Signs in many of the cases where administrative hearings were requested subsequent to the service of Notices of Violations, was that no state permits were necessary for varying reasons, one of which was that Interstate 10 had not become a part of the United States Interstate Highway System because it had not been opened to the public. Findings of not guilty were made in one Division of Administrative Hearings docket involving three sign violations, because of a failure of the evidence to prove that Interstate 10 was open to the public. (Data taken from exhibit 2 offered by the Department). The Administrative Procedure Act, Chapter 120, Florida Statutes, affords parties whose substantial interests are affected by actions of Administrative Agencies the right to a hearing to resolve disputed issues. Henderson Signs utilized the provisions of this Act. When the disputes were resolved against the contentions of Henderson Signs, by agency order or by the Court after appeal, it removed the signs that were the subject of these proceedings. The Department of Transportation has never had to remove a Henderson sign for failure of the Respondent to comply with a final order determining it to be illegal. The Respondent contends that a genuine issue existed regarding the necessity of securing a permit prior to the erection of a sign along the site of Interstate 10 in Jackson County, until the time it became a part of the Federal Interstate Highway System by being opened for public traffic. There is no evidence from which a finding of fact can be made as to precisely when Interstate 10 in Jackson County was opened and in use by the public. The formal ceremony opening Interstate 10 was held in November of 1978. During the time between the erection of a sign by the Respondent and the order that it be removed after a determination that it was illegal, Henderson Signs received rental payments from the sign advertiser. Subsequent to July of 1981, when the Respondent sold its sign business in Jackson County, there have not been any notices of violation issued to Henderson Signs by the Department of Transportation.
Recommendation From the foregoing, Findings of Fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Henderson Signs be dismissed. THIS RECOMMENDED ORDER entered on this 21 day of July, 1983, 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 21st day of July, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building; M.S . 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Respondent, Henderson Sign Service, erected and owns a sign located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida. The sign is visible from the main traveled portion of Interstate Highway 10. At the time of the filing of the petition in this cause, and as recently as October 2, 1978, no permit tag was affixed to the sign structure. In addition, the sign structure is located 123 1/2 feet from the white line on the highway at the outside edge of the eastbound lane. At all times material to this proceeding the sign in question bore advertising copy which read "Plantation House, pool, bus tour, restaurant, Quality Inn". Respondent had not applied to DOT for the issuance of a permit for the sign in question as of the date of the hearing in this cause. Any proposed finding of fact submitted by the Respondent and not incorporated in this Recommended Order was either rejected or deemed irrelevant.
