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 =================================================================
Findings Of Fact Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4. DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate. As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4. Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader." The sign was permitted by the City of Lake Mary on October 17, 1984. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T. DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of October, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mac Davidson Maxmedia Outdoor Advertising Post Office Box 847 Winter Park, Florida 32790 Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the State of Florida, Department of Transportation ("Department") properly denied Carter Pritchett Advertising, Inc.'s ("Carter") applications for outdoor advertising sign permits.
Findings Of Fact The Parties Carter and CBS are licensed to engage in the business of outdoor advertising in the state of Florida. The Department is the agency vested with the responsibility to administer and enforce the provisions of chapter 479, Florida Statutes, including the approval and denial of applications for permits for outdoor advertising signs that are located within 660 feet or less of the nearest edge of the right-of-way of any portion of the interstate and are visible from the main-traveled way of such interstate. The CBS Applications On July 28, 2009, CBS submitted two applications to the Department for outdoor advertising permits for a V-shaped sign at 1490 Northwest Third Avenue, Miami, Florida, adjacent to Interstate 395 ("I-395"). The CBS applications sought permitting to I-395. At the time CBS submitted its applications to the Department, the location of the proposed sign was within 660 feet from the nearest edge of the right-of-way of the on-ramp connecting I-395 to Interstate 95 ("I-95"), which is a controlled area. Thus, CBS's proposed sign required a permit issued by the Department. Outdoor advertising signs may be permitted only in commercial-zoned or unzoned commercial or unzoned industrial areas. A commercial zone is an area identified in both the local government's Future Land Use Map ("FLUM") and in local zoning regulations as allowing commercial or industrial uses. On August 13, 2009, the Department issued a Notice of Denied Outdoor Advertising Application to CBS. The Department stated the following reasons for denying CBS's applications: Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP). In conflict with permitted sign(s), tag#(s): BR203/BW544. Held by: CLEAR CHANNEL OTDR – S FLORIDA DIV. [s. 479.07(9)(a), 1.,&2.FS] Location is not permittable under land use designations of site. [s. 479.111(2), FS] CBS's applications were for a pilot program sign to be permitted to I-395. Pursuant to section 470.07(9)(c), Florida Statutes (2009), pilot program signs reduce the spacing requirements for interstates from 1,500 feet to 1,000 feet. However, at the time CBS submitted its applications, the City of Miami had not yet adopted a resolution expressing its intent to participate in a pilot program. At the time CBS submitted its applications, the parcel on which the proposed sign was to be located was zoned Parks and Recreation. In addition, the parcel was designated Recreation on the FLUM. The Department would not issue a permit for an outdoor advertising sign located in a parcel zoned Parks and Recreation and designated Recreation on the FLUM. On September 11, 2009, CBS filed a Petition for Formal Proceedings, challenging the Department's denial of its applications. The Department never transferred the CBS Petition to DOAH prior to taking final action on the CBS applications. Pursuant to Resolution R 09-0451, enacted by the City of Miami on September 24, 2009, the City of Miami resolved to express its intent to participate in a pilot program allowing 1,000 foot spacing of outdoor advertising sings along expressways in the City of Miami. Furthermore, the City of Miami resolved to authorize placement of billboards in parks, including the Overtown Plaza, where CBS proposed to locate its sign. After CBS submitted its applications, the City of Miami enacted a new zoning ordinance which is commonly referred to as "Miami 21." Miami 21 became effective on May 20, 2010. On May 20, 2010, the City of Miami informed the Department that the City of Miami had accepted the location of the proposed CBS sign into the City of Miami's pilot program, thereby allowing 1000 foot spacing in the City of Miami consistent with the pilot program authorized by section 479.07(9)(c), Florida Statutes. On May 21, 2010, CBS provided the Department with information regarding the updated zoning and FLUM designation(s) of the proposed site based on the newly implemented Miami 21. The new zoning of the proposed sign location was T6-8 O, which allows for commercial, residential and other uses, and the new FLUM designation was Restricted Commercial, which allows for commercial and residential uses. The evaluation used to determine satisfaction of the criteria outlined in sections 479.01(23) (2009) and 479.01(26) (2011), is commonly referred to as the "Use Test." The Department utilizes the Use Test where a parcel of land is designated by the FLUM of the comprehensive plan for multiple uses that include commercial or industrial uses but are not specifically designated for commercial or industrial uses under the land development regulations. Under the Use Test, a property that is zoned to allow for commercial or industrial uses, in addition to other uses, is examined to determine if surrounding commercial or industrial uses exist near the property that are visible to the main- traveled way of the roadway where the sign is to be permitted. There must be three or more separate and distinct conforming industrial or commercial activities, at least one of which is located on the same side of the highway and within 800 feet of the sign location; the commercial or industrial activities must be within 660 feet from the nearest edge of the right-of-way; and the commercial or industrial activities must be within 1600 feet of each other. Under the Use Test, certain activities are not recognized as commercial activities, such as activities not "visible" from the main-traveled way. Thus, to satisfy the Use Test, the applicant must demonstrate that there are three commercial or industrial activities within the required spacing which are visible from the main-traveled way. To be visible, the commercial or industrial activities must be capable of being seen from the main-traveled way without visual aid by a person of normal acuity and be generally recognizable as commercial or industrial. Due to the land use designation and zoning of the parcel on which the CBS sign was to be located, CBS submitted information to the Department to demonstrate that it satisfied the Use Test. In May 2012, the Department conducted a Use Test in connection with the CBS applications by evaluating commercial uses along I-395. The Department determined that the CBS applications satisfied the Use Test. On August 7, 2012, the Department entered into a settlement agreement with CBS in which the Department agreed to grant permits for CBS's pilot program sign to be located at 1490 Northwest Third Avenue, Miami, Florida, adjacent to I-395. The settlement agreement was incorporated into a Final Order dated August 14, 2012, dismissing CBS's request for an administrative hearing. On August 22, 2012, the Department issued CBS permits with tag numbers CI 138/CI 139. The Carter Applications On October 15, 2010, Carter submitted two outdoor advertising permit applications for a double-faced sign to be located 535 feet west of Northwest Fourth Avenue in Miami, Florida and to be permitted to I-95. The Carter applications were assigned Department File Numbers 58077 and 58078. Carter's applications were not submitted as pilot program signs. They were submitted for 1,500 foot spacing. The location of the proposed Carter sign is within a condominium complex ("Town Park Village Number 1"), specifically, a parking lot adjacent to the same on-ramp connecting I-395 and I-95 as the CBS applications (between Northwest Fifteenth Street and Northwest Fourth Avenue). The Carter applications, however, sought permitting to I-95. Carter's proposed sign is 660 feet from the nearest edge of the right-of-way of the east side of I-95, which is a controlled area. Thus, Carter's proposed sign requires a permit issued by the Department. The location of the proposed Carter sign is designated as Restricted Commercial on the FLUM for the City of Miami, which designation allows for commercial and residential uses. The zoning of the parcel is T5-O, which allows for commercial, residential, and other uses. By letter dated November 15, 2010, the Department notified Carter that its applications would be held by the Department without action until a prior hearing request was resolved. The letter did not identify who filed the referenced prior hearing request. The prior hearing request concerned the CBS applications. Due to the land use designation and zoning of the parcel for the Carter proposed sign, the Department determined that Carter must satisfy the Use Test set forth in section 479.01(26), Florida Statutes (2012). Carter acknowledges that it must satisfy the Use Test in order to obtain the permits. Whether Carter has satisfied the requirements of the Use Test by establishing that there are three commercial or industrial activities visible from the main-traveled way of I-95 is a dispositive factual issue to be determined by the undersigned. Carter identified for the Department three commercial activities near the proposed Carter sign, and within the required spacing, that Carter contends are visible from the main-traveled way of I-95, and thus, satisfy the Use Test. These are the Overtown Shopping Plaza, Two Guys Restaurant, and Black Kutz Barbershop. The location of the proposed Carter sign is within 800 feet for the southwestern corner of Overtown Plaza. The Department does not contest these measurements, or that Overtown Plaza is within 660 feet from the nearest edge of the right-of- way. Two Guys Restaurant is located on Northwest Third Avenue, and is 1,170 feet from the southwest corner of Overtown Plaza. Two Guys Restaurant is 580 feet west of the northbound I-95 right-of-way line. The Department does not contest these measurements. Black Kutz Barbershop is located on Northwest Third Avenue, and is 1,465 feet from the southwest corner of Overtown Plaza. Black Kutz Barbershop is 496 feet west of the northbound I-95 right-of-way line. The Department does not contest these measurements. Overtown Plaza, Two Guys Restaurant, and Black Kutz Barbershop are within 1,600 feet of each other. The Department does not contest these measurements. The Department conducted a Use Test in connection with the Carter applications by evaluating the visibility of the three purported commercial uses along I-95 proposed by Carter (Overtown Plaza, Two Guys Restaurant, and Black Kutz Barbershop). The Department determined that the Carter applications did not satisfy the Use Test because Overtown Plaza, Two Guys Restaurant, and Black Kutz Barbershop, are not visible from the main-traveled way of I-95, as required by section 479.01(26)(b)4., Florida Statutes (2012). If any of these purported three businesses (Overtown Plaza, Two Guys Restaurant, and Black Kutz Barbershop) are not visible from the main-traveled way of I-95, then Carter has not satisfied the requirements of the Use Test. The photographs relied on by Carter and the persuasive evidence presented at hearing establish that Black Kutz Barbershop and Two Guys Restaurant are not visible from the main- traveled way of I-95. At hearing and in its Proposed Recommended Order, Carter relies on two photographs taken by Mr. "Bo" Hodges from the main-traveled way of I-95 (Carter's Exhibits 17 and 18), to demonstrate that Black Kutz Barbershop and Two Guys Restaurant are, in fact, visible from the main-traveled way of I-95. Exhibits 17 and 18 and the persuasive evidence presented at hearing fail to establish that Black Kutz Barbershop and Two Guys Restaurant are, in fact, visible from the main- traveled way of I-95. Two Guys Restaurant and Black Kutz Barbershop are obstructed from view by trees and other structures. At best, only portions of the buildings that house the two businesses can be glimpsed from the main-traveled way of I-95. Neither the photographs (Exhibits 17 and 18), nor the persuasive evidence presented at hearing, demonstrate that the buildings contain commercial activity. Catching a glimpse of a portion of the buildings does not mean that the buildings contain commercial activity. A glimpse of a building does not establish that a commercial activity is visible from the main-traveled way. In sum, the photographs relied on by Carter, and the persuasive evidence presented at hearing, fail to establish that Two Guys Restaurant and Black Kutz Barbershop are visible from the main- traveled way of I-95.2/ Notably, the Department presented photographic and video evidence of its recent Use Test with respect to Carter's applications (Department's Exhibits 5 and 6). The photographic and video inspection was conducted by Mr. Mark Johnson, a Department Outdoor Advertising Inspector, during his inspection on January 4, 2014. Mr. Johnson testified that neither Black Kutz Barbershop nor Two Guys Restaurant are visible from the main- traveled way of I-95. The undersigned's review of the video and photographs relied on by Mr. Johnson do not show otherwise.3/ Mr. Pye, the Department's Supervisor of Field Operations, testified that he drove along the main-traveled way of I-95 just before the final hearing. He was able to merely catch a glimpse of a corner of the building in which Two Guys Restaurant is located, and the top portion of the corner of a building in which Black Kutz Barbershop is located. However, he was unable to determine that there was commercial activity. After a careful consideration of the evidence presented at hearing, the undersigned finds, as ultimate facts, that Two Guys Restaurant and Black Kutz Barbershop are not visible from the main-traveled way of I-95. Two Guys Restaurant and Black Kutz Barbershop are not capable of being seen from the main- traveled way of I-95 without visual aid by a person of normal visual acuity, and they are not generally recognizable from the main-traveled way of I-95 as commercial. Accordingly, Carter failed to satisfy the Use Test, and the Department properly denied Carter's applications. Based on the undersigned's finding that Two Guys Restaurant and Black Kutz Barbershop are not capable of being seen from the main-traveled way of I-95 without visual aid by a person of normal visual acuity, and they are not generally recognizable from the main-traveled way of I-95 as commercial, there is no need to address any of the other factual contentions of the parties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Carter's applications for outdoor advertising sign permits (Department File Numbers 58077 and 58078). DONE AND ENTERED this 1st day of May, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 1st day of May, 2014.
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
Findings Of Fact A McDonald's sign visible to automobile traffic on the I-75 is located .08 miles north of CR-54 along the I-75, 934 feet into the interchange between the I-75 and CR-54 in Pasco County, Florida. The I-75 at this location is part of the federal interstate highway system and is outside an incorporated town or city. The sign has no permit tags attached and no permit tags have ever been approved for the site. The property on which this sign is erected is approximately 77' by 52' with the southeast corner cut off owned by McDonald's Corporation. The site is connected to the restaurant site by a 15 foot strip of land which intersects a proposed road 275 feet north of the restaurant site. The sign is 1122 feet from the restaurant as measured along the paved surface between the sign and restaurant. Between this sign and the restaurant along CR-54 is a Standard station, an Amoco station, a Circle K shop and a Days Inn. The closest businesses to the sign are Abe Chevron station and the Days Inn Motel. Respondent presented proposed plans evidencing an intent to construct a McDonald's playland on the property on which the sign is located, presumably as an integral part of the restaurant. However, at the time of the hearing the property served only as a site for the sign. McDonald's playlands have been developed as a selling tool for families traveling over interstate highways and are generally located adjacent to the restaurant so children occupying the playland can be monitored by the parents from inside the restaurant. Respondent's witnesses were aware of no McDonald's playland located other than immediately adjacent to the restaurant building. Construction of the playland at the site of the existing sign has never-been started due to construction, drainage and sewage disposal problems at the restaurant site.
Findings Of Fact This Hearing Officer has jurisdiction of the parties and subject matter of this hearing. Proper notice was given to all parties and all parties had an opportunity to be present and to be heard. An alleged violation of Chapter 479 was served on the Respondent, National Advertising Company, citing subject -- sign located on Interstate 95, 0.89 miles south of Bowden Road with copy "Valles" thereon by written notice dated September 2, 1976. The original part of the sign was erected within the city limits prior to 1970 and was not permitted by the Petitioner, Florida Department of Transportation. The violation which is the subject of this hearing is that the sign has been added to by erecting forty feet of catwalk thereon and installing three lights. The monetary value was increased by approximately $1,084.00. The addition of catwalk and lights to the sign is not routine maintenance as defined in Section 479, Florida Statutes, and a permit was necessary for such additions to signs subsequent to January, 1971.
Recommendation Notify the Respondent that the subject sign will be removed if such is not removed within 30 days after entry of the final order. DONE and ORDERED this 16th day of March, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. George E. Hollis National Advertising Company Post Office Box 23208 Tampa, Florida 33623 William Rowland, Esquire Post Office Box 539 Winter Park, Florida F. S. Whitesell, District Sign Coordinator Department of Transportation South Marian Street Lake City, Florida 32055
The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statute 479.11(1), sign erected without a state permit. Whether subject sign is a new and different sign inasmuch as it has new facings, is erected on new poles and is materially elevated from the location of the previous sign. Whether subject sign is in violation of federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued the Respondent, Peterson Outdoor Advertising Corporation, notice of alleged violation of Chapter 479, F.S., on October 27, 1975 with respect to the following sign: Highway: S.R. 8 (I-95) Location: Junction I-95 and U.S. 17 Copy: 76 Truck Stop Pursuant to this notice the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. This request was made by John T. Graczol, vice president of leasing, by letter dated November 6, 1975. Respondent is the owner of the sign referred to in paragraph 1 of these findings. A sign with similar copy was erected by the Respondent prior to 1970 at the approximate location of subject sign. The Respondent owned and maintained the sign from time of erection up until January of 1975 when such sign was removed and the subject sign built. Subject sign is erected in a nonconforming area both in zoning and on a ramp outside of the city limits on an interstate highway. It is nearer than 660 feet from the nearest edge of the right of way of an interstate highway system in an open rural zoning area and can be read by persons traveling on the interstate highway system. The sign that was removed was in the approximate location with similar copy but with an elevation of under 10 feet. Subject sign is a replacement sign in the approximate location as the replaced sign with the same type of copy. The replacement sign is on different poles and at a more elevated height (from under 10 feet to over 16 feet) than the replaced sign. The replacement subject sign is much more visible to the traveling public than the old sign because of the materially increased elevation. No part of the old sign is standing and the replaced sign has been removed The Petitioner testified that the value of the sign increased by $484.00 and it is the finding of the Hearing Officer that the replacement sign is of more monetary value than the replaced sign. The new facing materials, the replacement of poles and the decided increase in elevation, make subject sign a different sign within the meaning of Chapter 479, F.S. and the federal regulations, thus, becoming a new sign requiring a permit rather than qualifying as nonconforming with the customary maintenance or repair of existing signs allowed under Section 479.01(12), F.S., infra. The owner of the sign was given written notice of the alleged violation and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject sign if said sign has not been received by the owner within ten (10) days after entry of the final order herein. DONE and ENTERED this 30th day of June, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire P. O. Box 539 Winter Park, Florida Mr. O. E. Black Administrator Outdoor Advertising Section Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. F. S. Whitesell District Sign Coordinator South Marion Street Lake City, Florida 32055
Findings Of Fact Respondent owns a sign located on the west side of Interstate Highway 95 (1-95) in the city of Pembroke Park, Florida, 0.2 miles north from the Dade County line which bears the copy "Johnny Walker Red". This sign was created by connecting two previous signs by the use of a panel in the middle. The two former signs were six feet by twelve feet each and located approximately six inches apart. When joined they became one sign six feet by twenty-four feet. An alleged violation-of Section 479.07(2), Florida Statutes, was reported by Petitioner's Outdoor Advertising Inspector for changing the size of the signs without first obtaining a proper permit. Subsequent to the reported violation, a meeting was held between Respondent and representatives of the Petitioner concerning the converting of two signs into one. At the meeting, Petitioner's representative, O.E. Black, Administrator of the Outdoor Advertising section, apparently authorized such joinder if the signs were cut in the middle so that technically they constitute two signs. It was further agreed at that meeting that separate permit tags would be retained as required. The sign (or signs) is presently in accordance with the above policy, and application has been made for the necessary permit. (Testimony of Hackett, Simokat). Sign located on SR 5, 400' North of Kendall Drive, Southwest. This is a sign erected in Dade County which did not bear a State permit tag at the time the alleged violation was noted on January 5, 1976. The sign is located on properties zoned for "general use". After receiving the Notice of Violation, Respondent's representative discovered that four tags instead of two had been placed on a nearby sign owned by the company, and that apparently two of them belonged to the sign in question, but inadvertently had not been affixed. He thereupon placed the two extra permit tags on the offending sign. It is agreed by the parties that the sign is properly tagged and permitted at the present time. (Testimony of Conde, Owens). Sign located on SR 25A, southwest corner of Second Avenue and 54th Street N.W., Miami, Florida. This is a sign that was formerly two signs 6' X 12' which were made into one large sign 6' X 24'. A piece of metal was put between the two signs to join them. There is also a plywood embellishment attached to the merged signs which is the same height as the existing sign, but extends on the right end to make the total area approximately 15' x 28'. A permit was applied for by the Respondent and denied because the sign was less than 500' away from other permitted signs. Though, the signs were erected four or five years ago, the consolidated sign with new dimensions is considered by Petitioner to be a new sign that cannot be permitted because of +he above- mentioned spacing requirements. (Testimony of Conti, Simokat).
Recommendation That the alleged violations against Respondent Empire Advertising Industries, Inc., be dismissed. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Room 562, Haydon Burns Building Department of Transportation Tallahassee, Florida 32304 Robert Korner, Esquire 4790 Tamiami Trail Coral Gables, Florida 33134
The Issue Whether a sign owned by Respondent and located on the southbound side of I- 95 north of Pembroke Road in Broward County, Florida, violates Chapter 479, Florida Statutes, as alleged in the notice dated August 8, 1991; and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes. Chapter 479 regulates outdoor advertising structures along the state highway system. Respondent is the owner of a sign located adjacent to the southbound side of Interstate 95 ("I-95") near Pembroke Road in Broward County, Florida. Respondent maintains the sign on the side of the trailer portion of a so-called 18 wheel tractor-trailer (an "18 wheeler") in a stationary position. No truck or tractor is affixed to the trailer. The sign and 18 wheeler were situated on property owned by Air Stern. Air Stern is an air conditioning company. Petitioner's Outdoor Advertising Inspector (the "inspector") first observed the sign in August, 1991. The sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary location. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. The advertising message was clearly visible from I- 95. A light facing the sign was affixed to the ground and positioned to illuminate the sign on the side of the 18 wheeler at night. An expired 1990 Florida license plate was affixed to the back of the trailer. Grass had grown up around the tires of the trailer and the trailer had been in its same position for several months. The inspector issued a Notice of Violation by physically attaching it to the trailer on August 8, 1991. The inspector determined that the printed advertisement on the trailer's side was an unpermitted sign that violated Section 479.07(1), Florida Statutes. The inspector based his determination upon his observation of the trailer on the premises, its position in relation to I- 95, and the type and content of the message printed on the side. Another copy of the Notice of Violation was mailed to Respondent. After more than 30 days had elapsed with no action by Respondent, Petitioner had the first sign removed by Sal's Towing on September 23, 1991. The sign was stored at Petitioner's maintenance facility in Ft. Lauderdale, Florida. On November 9, 1991, Respondent paid the towing charge for removal of the sign and then returned the sign to its original location adjacent to I-95 near Pembroke Road in Broward County, Florida. In addition to placing the sign in its original location, Respondent placed a second sign next to the first sign. The second sign was substantially similar to the first sign. The second sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary position with no truck or tractor attached. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. A sign permit has not been applied for by Respondent nor issued by the Department for either of the signs located adjacent to I-95.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent shall have ten days from the date of the Final Order to comply with Notice of Violation No. 4-369 by removing the sign or be subject to the cost of removal and imposition of an administrative fine. DONE and ENTERED this 6th day of April 1992, in Tallahassee, Florida. DANIEL MANRY 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 6th day of April 1992.
