The Issue Whether subject sign is in violation of state and federal law for the reason that no permit was secured at time of erection of subject sign.
Findings Of Fact Respondent proceeded to erect subject sign prior to January 29, 1975, and continued such erection after January 29, 1975, the date a Notice of Outdoor Advertising Violation was served on Respondent Corporation by the District Sign Inspector. Said notice of violation notified Respondent that Respondent Corporation was in violation of Chapter 479, Florida Statutes or Section 335.13, Florida statutes for the reason that no permit had been secured and that the erection of said sign was in violation of the specific requirement of Chapter 479, Florida statutes inasmuch as subject sign was approximately 250' from an existing sign. Respondent continued to erect subject sign despite objections from the Florida Department of Transportation. On the date of the hearing the Respondent testified that as of that date an application had been made and permit had been approved. The sign coordinator testified that the sign which had been permitted and which was so spaced to prohibit the building of Respondent's sign had been removed after the Notice of Hearing had been set. The complainant contended that Respondent erected subject sign without first applying for a permit; that after Notice of Violation Respondent disregarded the notice and the law and continued to build subject sign; that not until notice of this hearing was received did Respondent "buy out" the offending sign which prohibited the issuance of permits. The Respondent did not deny that no permit was issued before erection of subject sign but contends that permits have now been issued.
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 3115 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
The Issue Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
The Issue By a Petition filed October 21, 1988, Petitioner sought a determination, pursuant to Section 120.56, Florida Statutes, that a non-rule policy of the Department of Transportation was a rule that: (a) was not adopted properly under Chapter 120 Florida Statutes, and (b) was an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner submitted application for state outdoor advertising permits which were received in the Department of Transportation (DOT) District Office on August 8, 1988, for a location on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. Petitioner was denied the permits on the ground that permits had been issued to another outdoor advertising company prior to July 1, 1984, for a location less than a thousand feet from Petitioner's proposed site on the same side of the highway. There have been no tags displayed or sign maintained at the earlier site since issuance of the permits. It is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within 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. 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. Petitioner is in the outdoor advertising business, particularly off- premises signs, and is so licensed. The spacing impediment caused by the earlier permits is the only basis for denial of Petitioner's permit applications by DOT as Petitioner meets all other requirements. Petitioner will have to confront the agency's "interpretation" with each permit application it makes. Petitioner is currently challenging the specific above-referenced permit denials in Section 120.57(1) proceedings which both parties herein opposed consolidating with the instant rule challenge when the undersigned suggested that possibility. Respondent has not challenged Petitioner's standing to bring this rule challenge, and Petitioner has demonstrated standing to bring it. The Petitioner asserts that the agency's acknowledged foregoing interpretation of the named statutes constitutes an arbitrary and capricious unpromulgated rule, applied without legislative authority and prejudicing Petitioner and all like-situated lessees of off-premises signs because it creates a perpetual grandfather clause for sign permits in existence prior to July 1, 1984, and new applicants post-1984 cannot know where earlier permits have been issued due to the lack of DOT enforcement of tag posting and sign maintenance requirements. Phil Brown, DOT Right of Way Specialist, testified by deposition that, indeed, if a pre-1984 permittee never erects a sign or posts tags, the spacing impediment can only be located through DOT records, in this case, a computer search. Phil Brown relied on DOT training sessions which advised him that Section 479.07(9), Florida Statutes, requires the current agency interpretation/non-enforcement of Section 479.07(5)(a) to pre-1984 permittees, and he applied it to Petitioner's application. In so doing, he utilized Section 479.05(9) so as to count the thousand foot spacing requirement for the permit site which had been requested by the Petitioner not from a permitted sign (which is the statutory phrase contained in Section 479.09) or from a sign in existence, i.e. a sign already erected, or from a tagged erected sign, or from a displayed tag, but instead counted the thousand feet, as he had been directed, from the site described on the permit issued pre-1984. Gary Kissinger, designated by DOT as its employee most knowledgeable about the application of statutes and rules to outdoor advertising, testified by deposition that pre-1984 outdoor advertising sign permits can, absent a future law change, go into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as they keep renewing and paying their fees, even though Mr. Kissinger understood the purpose of the 1984 amendments to be the prevention of advertisers "stockpiling" unused sites/permits from the enactment date forward. No evidence established Mr. Kissinger as the drafter of the legislation or of the agency rules promulgated thereunder, and no evidence was submitted in the form of committee minutes, notes, legislative journals or by other means to clearly establish a legislative intent either coinciding or differing from Mr. Kissinger's perception. Mr. Kissinger relies for the DOT "interpretation" upon the definition of "nonconforming" signs given in Section 479.01(12), Florida Statutes. He does not rely for DOT's interpretation on the exceptions listed in Section 479.16, Florida Statutes. It is his view that notwithstanding Rule 14-10.006(1)(b)(7), Florida Administrative Code, those permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained/displayed. Even though DOT's current permit application form requires applicants such as Petitioner to state, to the best of their knowledge, the location of the permitted sign nearest to the site for which they are applying, there is no way any post-1984 applicant can find out about preexisting unutilized permits on its own without getting that information from DOT. Only after the application is submitted, does DOT run its own check and deny the new permit application if a permit for a site within the distance given in Section 479.09 exists regardless of whether there is a sign erected or a tag displayed at the earlier permit's site. DOT applies its interpretation statewide and asserts that all the agency is doing is to not apply the posting and erection requirements of Section 479.07(5)(a) retroactively to pre-1984 permits, upon recognized standards of prospective statutory construction, and that the agency has not established any policy or rule thereby. The statute in question came about as a substantial rewording of Section 479.07, Florida Statutes, by way of amendments contained in Chapter 84- 227, Laws of Florida, which provided as follows: Sign permit required.-- Except as provided in s. 479.16, no person shall erect, operate, use, maintain, or cause to be erected, operated, used, or maintained, any sign on the state highway system outside incorporated areas or any portion of the interstate or federal-aid primary highway systems without first obtaining a permit there for from the department and paying the annual fee as provided herein. No person shall apply for a permit unless he has first obtained the written permission of the owner or other person in lawful possession or control of the site designated as the location of the sign in the permit application. (3)(a) Application for a sign permit shall be made on a form prescribed by the department and a separate application shall be submitted for each permit requested. A permit shall be required for each sign facing. As part of the application, the applicant or his authorized representative shall certify in a notarized signed statement that all information provided therein is true and correct and that, pursuant to subsection (2), he has obtained the written permission of the owner or other person in lawful possession of the site designated as the location of the sign in the permit application. Every permit application shall be accompanied by the appropriate permit fee; a signed statement by the owner or other person in lawful control of the site on which the sign is located or will be erected, authorizing placement of the sign on that site; and, where local government regulation of signs exists, a statement from the appropriate local government official indicating that the sign complies with all local government requirements and that the agency or unit of local government will issue a permit to that applicant upon approval of the state permit application by the department. The annual permit fee for each sign facing shall be $25 for 20 lineal feet or less, and $35 for over 20 lineal feet. No fee may be prorated for a period less than the remainder of the permit year to accommodate short-term publicity features; however, all first-year fees may be prorated by payment of an amount equal to one-fourth of the annual fee for each remaining whole quarter or partial quarter of the permit year ending on January 15. Permit applications shall be acted on by the department within 30 days after receipt of the application by the department. Applications received after September 30 shall include fees for the last quarter of the current year and fees for the succeeding year. (4)(a) For every permit issued, the department shall furnish to the applicant a serially numbered permanent metal 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 shall be attached in such manner as to be plainly visible from the main-traveled way. The permit shall 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 shall 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. A permit is valid only for the location specified thereon. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfers fee of $5 for each permit to be transferred. However, the maximum transfer fee is $100 for any multiple transfer between two outdoor advertisers in a single transaction. If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued shall 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 permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site. (5)(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 of the permittee which were issued 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 not renewed shall be returned to the department for cancellation by January 15. Permit tags not renewed or 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 the permittee has not submitted his fee payments by January 15, the department shall, no later than February 1, send a violation notice or the permittee requiring fee payment 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, the filing of a request for an administrative hearing to show cause why his signs 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 shall be automatically reinstated and such reinstatement shall be retroactive to January 15th. If the permittee does net respond to the violation notice 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. (6)(a) Any sign not granted a permit by the effective date of this act shall not be granted a permit 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 herein shall not preclude the permitting of V-type, back-to-back, side-to-side, stacked or double faced signs at the permitted sign site. No sign shall be granted a permit pursuant to this chapter to locate on any portion of the interstate or federal-aid primary highway systems that: Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporate area; or 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 of 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. (7) Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this provision and permits shall not be issued for signs in such areas. The department shall adopt rules within 130 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enacted or enacted primarily to permit signs. A Reviser's Bill renumbered and made scrivener's changes in the amendatory language so that the "interpreted" portions of Section 479.07 were codified as follows: (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 person 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 for cancellation by January 15. Permit tags which are not renewed or 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. Section 479.01(12) as amended provides: '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.] The effective date(s) of Section 479.07 is significant as provided in Section 27 of Law 84-227: 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.] Likewise, the exceptions set out in Section 479.16, Florida statutes, as amended by Chapter 84-227, must be considered. They are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits," in that language. The new statue defines "erect" at Section 479.01(4) and "sign" at Section 479.01(14) as follows: (4) "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change to advertising message or customary maintenance or repair of a sign. (14) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department. Both of these foregoing subsections are substantially the same as their predecessors in the pre-1984 statute. There appears to be no dispute that DOT has lawfully promulgated the following rules in order to facilitate its administration of Chapter 479, Florida Statutes, as amended 1984: Rule 14-10.004(2)(d)--The application shall be notarized and shall contain . . . The sign's distance from the right of way, the nearest permitted sign on the same side of the highway, and the nearest intersection on the same side of the highway. [Emphasis supplied.] Rule 14-10.004(6)--Permits shall be renewed in accordance with Section 479.07(5). [Emphasis supplied.] Rule 14-10.004(9)--A sign granted a permit shall be erected and thereafter maintained in accordance with Section 479.07, F.S. and this Rule Chapter. [Emphasis Supplied. Rule 14-10.004(10)--The permanent metal tag issued by the Department shall be displayed and maintained in accordance with Section 479.07(5)(a) F.S. Rule 14-10.006(1)(b)(7)--The following shall apply to signs for which the initial valid permit application was submitted after July 1, 1984: Official signs, and signs exempt under Section 479.16 and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements. [Emphasis supplied.] Rule 14-10.007(1) provides in pertinent part: . . . A sign which was conforming on June 30, 1984, but which does not comply with the size, spacing, and height requirements of Section 479.07(9) F.S. shall not be considered a nonconforming sign. [Emphasis supplied.] Rule 14-10.007(2)(e) provides in pertinent part: (2) The following shall apply to nonconforming signs: (e) A sign face which remains void of advertising matter for 12 months or longer shall be deemed an abandoned or discontinued sign and shall lose its nonconforming status. [Emphasis supplied.] None of these duly promulgated rules has been challenged in this proceeding.
Findings Of Fact The property on which the structure was located was acquired by the Department of Transportation (DOT) for roadway purposes. The project was part of a federal program for road improvement. The structure in controversy is an outdoor advertising sign owned by Patrick Media. Relocation benefits were offered by the DOT pursuant to the Federal Uniform Relocation Act. This sign was a legal nonconforming sign at the time of taking. Patrick Media had a leasehold interest in the site on which the sign was located. Patrick Media has removed the structure. The structure in question was comprised of two facings (V-shaped configuration), lights, service ladders and catwalks. It was built in 1978 and has been in continuous service since that time. The site is leased on a year to year renewable basis with either party able to terminate the lease at the expiration of the lease year. Contracts with advertisers involve multiple locations with price depending upon the number of motorists passing the sign per unit of time. Revenue received from face A (facing west) from August 15, 1990 to May 5, 1991 was $3739 (net) and from face B (east facing) from May 25, 1990 to May 25, 1991 was $2288 (net). As a nonconforming sign, the sign could not have been rebuilt if destroyed had the site not been acquired by DOT. Shortly after the introduction of Chapter 479 into the Laws of Florida and the possibility of requiring the nonconforming signs to be purchased by DOT for removal, DOT met with sign companies and developed a format for determining compensation to be paid for removing these nonconforming signs. A copy of the format completed for the sign in issue here was admitted as Exhibit 1. (Form 178-507 4/83) Additionally, Comparative Cost Multipliers (Exhibit 2) is used to determine the inflation caused adjustment to be applied to structures built in earlier years. Exhibit 1 computed the estimated value of the sign in issue at $11,674.53. However, this compensation did not include catwalks or time clock. The removed sign has negligible salvage value.
Recommendation It is recommended that the fair value of the sign in issue be recalculated to add the value of catwalks and time clock to the total before applying the multiplier and that a Final Order be entered finding that total so calculated to be the fair market value of Patrick Media's sign. DONE and ORDERED this 20 day of April, 1992, in Tallahassee, Florida. COPIES FURNISHED: Elizabeth G. Repaal, Esquire Post Office Box 1441 St. Petersburg, FL 33731 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 ATTN: Eleanor Turner MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1992.
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 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
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 Petitioner submitted applications on 13 June 1978 for signs facing north and south on I-110 0.433 miles north of SR 296 and these applications were denied by Respondent because the sign would not be located more than 800 feet from the noted business activity. The testimony produced at the hearing related solely to the distance the proposed sign would be located from an existing sign owned by and permitted to Lamar Outdoor Advertising. Petitioner's position at the hearing was that his application for a permit should be granted because the Lamar sign upon which the denial of his application was allegedly based was illegal because located less than 500 feet from the beginning of an on-ramp to the I-110. There was no dispute regarding the facts in this case. The position in which Petitioner intends to locate the proposed sign is less than 1,000 feet from a sign previously permitted to Lamar Outdoor advertising. The hearing in Docket No. 78-2179T was held the same date as the hearing in this case and it was there found as a fact that the Lamar sign is located less than 500 feet from the beginning of the on-ramp at the I-110.
