Findings Of Fact Foster and Kleiser are the owners of signs located on I-275 at the off- ramp of 54th Avenue, Pinellas-Hillsborough Cloverleaf. These signs are 198 feet from the beginning of the pavement adjacent to the signs and 15 feet from the right of way. The location is in an unincorporated portion of Pinellas County. On December 22, 1972, Ace Outdoor Advertising Co., Inc., the predecessor in interest of Foster and Kleiser as regards this sign, sought and received a permit for the construction of a sign located at "I-75. . .five miles north of St. Petersburg." These permit numbers have been renewed every year until the present with Foster and Kleiser succeeding in interest to Ace Outdoor Advertising Co., Inc. through purchase in 1976. In late 1972, two members of the Department of Transportation, a Mr. Boger (an outdoor advertising inspector now deceased) and Mr. Moran along with Mr. Arthur Hempel, the President of Ace Outdoor Advertising Co., Inc. looked over the area in Pinellas County where the sign was intended to be constructed. At that time Mr. Hempel showed Mr. Boger and Mr. Moran the general area in which the sign would be erected, said area being a strip of approximately 1500 feet fronting I-275 just north of the 54th Avenue North cutoff. No specific site for the sign was stated to Mr. Moran or Mr. Boger and it was pointed out by the DOT personnel that a zoning change would have to be accomplished to permit any sign to be constructed. This rezoning was later made by the County Commission and the land in question was changed from A-1 (agricultural) to CP (Commercial Parkway) in 1973. The sign in question was not erected until on or about June 21, 1977, and is located approximately 198 feet north of the widening for the beginning of the off-ramp at the 54th Avenue North interchange of Interstate 275 in Pinellas County. Prior to the promulgation of Rule 14-10 the Department used as its rule and regulation regarding spacing of signs the Agreement between the Governor of the State of Florida and the United States Department of Transportation, which is now set forth verbatim in Rule 14-10.06 which was adopted in April 1977. The Agreement was enforced by the Department prior to 1976 when it was adopted as a rule. On or about July 27, 1977, the Department cited Respondent Foster and Kleiser for a violation of F.S. 479.02 and Rule 4-10.06 for having erected an outdoor advertising sign within 500 feet of the widening of the pavement at the exit from I-75.
Recommendation For the reasons stated above and in the light of the applicable law, since the sign in question is nonconforming and since currently valid permits have not been issued for the site at which it was erected in June, 1977, it is illegal, cannot be permitted and should be removed. DONE and ORDERED this 28th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1978. COPIES FURNISHED: John A. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Horace A. Andrews, Esquire 602 Florida National Bank Building St. Petersburg, Florida 33701 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-1430 FOSTER AND KLEISER, Respondent. /
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact The sign which is the subject of this proceeding was cited for violations of the Florida statutes and rules regulating outdoor advertising structures by notice of violation dated November 3, 1983, and served on the Respondent as owner of this sign. The subject sign is located on the north side of Interstate 10, 1.6 miles east of State Road 267, in Gadsden County, Florida. This structure is an outdoor sign, or display, or device, or figure, or painting, or drawing, or message, or placard, or poster, or billboard, or other thing, designed, intended or used to advertise or inform with all or part of its advertising or informative content visible from the main traveled way of Interstate 10. The structure is located within 660 feet of the nearest edge of the pavement of Interstate 10, as alleged in the violation notice dated November 3, 1983. The structure was located outside any incorporated city or town on the date it was built. The structure was not located in a commercial or industrial zoned or unzoned area on the date it was built. The structure was constructed, or erected, without a currently valid permit issued by the Department of Transportation; it was operated, used, or maintained without such a permit; and a Department of Transportation outdoor advertising permit has never been issued for the subject structure. The structure does not fall within any of the exceptions listed in Section 479.16, Florida Statutes. The structure was located adjacent to and visible from the main traveled way of a roadway open to the use of the public for purposes of vehicular traffic in the State of Florida at the time it was built. The structure had affixed the copy or message as shown on the notice of violation when it was issued; namely, Texaco Next Exit Turn Left - Food Store. Hinson Oil Company is the owner of the sign or structure which is the subject of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the sign owned by the Respondent, Hinson Oil Company, located on the north side of Interstate 10, 1.6 miles east of State Road 267, in Gadsden County, Florida, be removed. DONE and ORDERED this 31st day of August, 1984, in Tallahassee, Florida. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Horns Building, MS-58 Tallahassee, Fl. 32301-8064 Mr. E. W. Hinson, Jr. Hinson Oil Company P O. Box 448 Quincy, Florida 32351 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 31st day of August, 1984. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether DOT should void outdoor advertising permits Nos. AT402-35 and AT403-35?
Findings Of Fact On March 20, 1987, (T. 12) DOT issued advertising sign permits to respondent, Nos. AT 402-35 and AT 403-35, authorizing construction of a metal outdoor advertising sign "monopole" 43 feet high with sign boards facing north and south, less than a tenth of a mile south of Alternate U.S. Highway 90, a "federal aid primary road" (T. 11), immediately west of State Road 297 in Escambia County. DOT's Exhibit No. 1. In May of 1988, Outdoor Media, Inc., applied for a permit to construct an outdoor advertising sign at a site five or six hundred feet east of the intersection of State Road 297 and Alternate U.S. Highway 90. Because the site proposed by Outdoor Media, Inc., is visible from and lies within 660 feet of the main traveled way of Alternate U.S. Highway 90 and because it lies within 1,000 feet of the site on which DOT had authorized Salter to erect signs, DOT denied Outdoor Media, Inc.'s, application. When Philip N. Brown, who works in DOT's outdoor advertising section, reported that no sign had ever been built at the site for which Salter had obtained permits Nos. AT402-35 and AT403-35, DOT notified Salter of its intent to void and revoke the permits. DOT's Exhibit No. 2. Some time after June 19, 1988, more than 18 days after DOT sent Salter notice of its intent to void the sign permits, Salter erected a wooden sign on the site. On March 10, 1988, Salter had obtained a building permit from Escambia County for the metal monopole structure, but, because more than 180 days had elapsed without any call for inspection, Escambia County declared the building permit null and void on September 23, 1988.
Findings Of Fact Outdoor Display is a licensed outdoor advertiser holding License No. 18191 from Polk County. The two signs which are referenced in the charges are located on U.S. 92 respectively 2.59 miles and 2.67 miles west of U.S. 27. These signs were inspected in 1975 and the first sign bore 1971 permit issued to Outdoor Display. The signs each had a value of more than $100. Both signs belonged to Outdoor Display, and neither sign bore a current permit. Boger receives application from Outdoor Display as the outdoor advertising administrator but had not received any application with regard to these two signs prior to the hearing.
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 1986, in Tallahassee, Leon County, Florida WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the outdoor advertising structure of Respondent LaPointe Outdoor Advertising should be removed for failure to obtain a statue permit for building and for violation of the spacing laws. Whether Respondent received sufficient notice that it was charged with having no currently valid permit under Section 479.07(1) Florida Statutes. By what authority does the Department of Transportation seek to enforce a 1000 foot spacing requirement along interstate and federal aid primary roads in zoned and unzoned commercial and industrial areas? Is the authorization in Section 479.02, Florida Statutes, originally enacted by Chapter 71-971, Laws of Florida, to the Governor and the Department of Transportation to enter into agreements in accordance with Title I of the Highway Beautification Act of 1965 an unlawful delegation of legislative authority? Does Section III(A) of the Governor's Agreement exempt Respondent from the 1000 foot spacing requirement? Whether the 1000 foot spacing requirement in zoned and unzoned commercial and industrial areas therein control over the 500 foot spacing requirement imposed by the Palm Beach County Sign Code.
Findings Of Fact Respondent is the owner of an outdoor advertising sign located 1200 feet north of Lipton Boulevard, West Palm Beach County, Florida, on Interstate 95. No permit from the Florida Department of Transportation was applied for or secured but the subject sign was erected between July 6th and July 12th, 1976. This sign is less than 1000 feet from another outdoor advertising sign which had been permitted by the Florida Department of Transportation. The subject sign owned by the Respondent was completed before the sign which is less than 1000 feet away was completed. Notice of violation regarding subject sign was properly sent by the Department of Transportation and received by the Respondent. No application was made prior to the erection of the subject sign to the Florida Department of Transportation and no permit was secured. The Respondent secured a permit from the Palm Beach County Building Department before erection of subject sign. The Petitioner contends that the sign should be removed because the Respondent erected the sign without a permit as required by the State Statutes and the erection of the sign violates the spacing requirements of the Statutes. Respondent contends that it did not apply for a permit from the Petitioner before it constructed the sign, but it did secure a building permit in Palm Beach County; that there was confusion as to the spacing requirements under Section 479.02.
Findings Of Fact The Respondent, J. B. Davis, Inc., owns an outdoor advertising sign which is situated on the north side of I-10, 250 feet west of S.R. 53, in Madison County, Florida. This sign faces westbound traffic, and it is not in any incorporated city or town. I-10 is a part of the interstate highway system, and it is open to traffic. The subject sign is visible from the main traveled way of I-10. The subject sign has been erected and is situated within 500 feet of a restricted interchange. The subject sign does not have a permit issued by the Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Respondent's sign situated on the north side of I-10, 250 feet west of S.R. 53, facing westbound traffic, in Madison County, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 3rd day of March, 1985. 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 3rd day of April, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. B. Davis, President J. B. Davis, Inc. Base and Duval Streets Madison, Florida 32340 Paul A. Pappas, Secretary Haydon Burns Building Room 562 Tallahassee, Florida 32301
Findings Of Fact Lamar acquired permits AA-634 and 7504 from Peterson Outdoor Advertising Company for a double-faced sign located on U.S. 98, South, approximately one-half mile north of Crystal Lake Drive on a site leased from Mary D. and Billy Allred. The lease (Exhibit 1.), executed in 1978, was for a three-year term with automatic renewal for an additional five year period and thereafter from year to year on the same terms and conditions unless terminated by lessee by giving 30-days notice prior to the end of the lease year. By warranty deed dated June 14, 1983, (Exhibit 2.) Sun State acquired the property on which this sign was located from Allred. Rent on this lease for 1984 was sent to Allred by Lamar, endorsed over to Sun State and cashed by Sun State. A check for rent for 1985 sent by Lamar to Sun State was never negotiated. By letter dated April 3, 1985, (Exhibit 4.) Sun State Homes told Lamar to immediately remove the sign from its property on U.S. 98, South. On May 16, 1985, Sun State applied for a permit for a sign on U.S. 98, 550-feet north of North Crystal Lake Drive. This application was disapproved by DOT on June 7, 1985, in Exhibit 3 because it was in conflict with the sign for which Lamar held tags for the proposed site. On or about the same time, Sun State applied to Polk County for a building permit to erect a sign at this site. Polk County disapproved the application because DOT had denied the permit. By letter dated May 29, 1985, Sun State appealed the denial of their application. On or about May 27, 1985, Lamar removed their sign from Sun State's property. On May 28, 1985, Lamar submitted an application for a permit to erect a sign on U.S. 98, 1,200 feet north of N. Crystal Lake Drive (Exhibit 5.) and simultaneously surrendered tags no. AA-634 and 7504. Lamar had obtained permission from the owner of that property to erect a sign at this site. This application was denied by DOT because of the appeal by Sun State from its denial. DOT will not approve an application for a sign permit when the right of occupancy of the site is contested. Lamar appealed this denial and the two cases were consolidated for hearing. The two applications are mutually exclusive as only one can be granted without violating spacing requirements.
Findings Of Fact The Steakery and the Sugarloaf Leisure Club are businesses in Summerland Key, Monroe County, Florida, that are owned by William A. Hare. For the past four years, Mr. Hare has, on behalf of his respective businesses, leased two outdoor advertising signs that are located on the same support structure with one sign being directly above the other. On one sign there appears an advertisement for The Steakery while on the other there appears an advertisement for the Sugarloaf Leisure Club. These two signs face are located in Monroe County, Florida, on the northbound side of U.S. 1, a federal-aid primary highway. The support structure for the signs is approximately 10 feet from the highway. No permit has been issued by the Florida Department of Transportation (DOT) for either sign. The signs are located in a part of Monroe County which is zoned "Native Area". This area is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The signs are not located on the business premises of the sign owner. The signs were inspected by the DOT's Outdoor Advertising Inspector and found to have no state sign permits attached them. On October 5, 1989, DOT caused to be filed against the two signs notices that neither sign had the permit required by law and that the zoning for the location of the signs did not permit outdoor advertising signs. Respondents have not contested the method by which the notices were posted. Mr. Hare, on behalf of his businesses, filed a timely demand for formal hearing following his receipt of the notices of violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order which finds that permits required by law have not been issued for the subject signs, that the signs are in a location that is ineligible for permitting because of its zoning, and which orders the immediate removal of the subject signs. DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 f Administrative Hearings this 15th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASES 89-6103T AND 89-61O4T The following rulings are made on the proposed findings of fact submitted on behalf of the Department of Transportation: 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 3 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 6 of the Recommended Order. 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. 5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 5 of the Recommended Order. COPIES FURNISHED: Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mr. William Hare Owner, The Steakery Owner, Sugarloaf Leisure Club Post Office Box 723 Summerland Key, Florida 33042 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Bulding 605 Suwannee Street Tallahassee, Florida 32399-0458
