The Issue With respect to DOAH Case No. 99-3345T, whether the Respondent must remove the double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, for the reasons set forth in the Notice of Violation - Illegally Erected Sign, dated March 31, 1999. With respect to DOAH Case No. 99-3346T, whether the Respondent's permits for a double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, and bearing permit numbers AZ346-35 and AZ347-35, should be revoked for the reasons set forth in the Notice of Violation - Maintenance of Nonconforming Signs dated March 31, 1999.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999). National Advertising 2/ is the owner of a double- faced outdoor advertising sign located in Palm Beach County, Florida. The sign is located on the west side of Interstate 95, 1.25 miles south of North Lake Boulevard. At the time the structure was erected, the sign faces were visible to both southbound and northbound traffic of Interstate 95. At the times material to this proceeding, the sign at issue was a non- conforming sign. At the times material to this proceeding, the sign structure consisted of seven wooden poles placed in the ground and secured by concrete. Two metal heads, the sign faces themselves, were attached to the poles, one facing north and one facing south. The structure also included a metal catwalk providing access to the sign faces, as well as miscellaneous trim and equipment. At some time prior to the incidents giving rise to these proceedings, a sound wall was erected by the Department along Interstate 95, which blocked visibility of the National Advertising sign face by northbound traffic. In March 1999, National Advertising determined that the existing wooden poles supporting the sign heads were deteriorating and needed to be replaced. In addition, National Advertising decided to raise the height-above-ground-level ("HAGL") of the sign to maintain the same visibility of the sign face by the northbound traffic as that which existed before the sound wall was erected. Consequently, National Advertising contracted with a company to relocate the poles and transfer the existing sign faces and attached equipment to the new poles. Holes were dug approximately five feet from the original wooden poles, and new wooden poles were set in these holes. A crane lifted the sign faces and the attached trim and equipment and supported them while the old wooden poles were cut down slightly above ground level. The crane then moved the sign faces and the attached trim and equipment to the new poles, and the assemblage was bolted to the new wooden poles. The original wooden poles supporting the sign heads were approximately 12-to-13 inches in diameter, and the HAGL of the original sign faces was approximately 24 feet. The new wooden poles were approximately 20-to-22 inches in diameter, and the HAGL of the sign faces was raised to approximately 50 feet. The structure of the sign was not altered, and the materials used in the sign faces were not altered. The poles supporting the sign faces can be changed as part of the routine maintenance of an outdoor advertising sign, as long as the new posts are of the same material and configuration; the replacement of deteriorating poles is standard industry practice and is required to maintain the safety of the sign. The sign must, however, stay in the same relative location on the ground as the old sign. It is standard industry practice to place new supporting poles a few feet away from the exact location of the old supporting poles in order to provide a firm foundation for the new poles. The Department uses the term "remove" in its notices of violation as a "general term" meaning "[t]o move [a sign] away from the site, to move it any distance away from where it was installed previously." 3/ Nonetheless, the charges in the Notices of Violation issued in these cases were based on the Department's mistaken conclusion that National Advertising "cut down the entire sign, discarded it and built an entire new sign in its place." 4/ The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the permitted outdoor advertising sign was removed from its original location and re-erected. Because it has not established with the requisite degree of certainty that the sign was re-erected, the Department cannot sustain its charge that the outdoor advertising sign at issue herein was erected without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the Notice of Violation - Illegally Erected Sign in DOAH Case No. 99-3345T and dismissing the Notice of Violation - Maintenance of Nonconforming Signs in DOAH Case No. 99-3346T. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 18th day of September, 2000.
The Issue Whether respondent's nonconforming sign was destroyed by an Act of God, and therefore its license should be revoked, or whether respondent's sign was merely damaged and the action taken by respondent constitutes reasonable repair and maintenance of the sign.
Findings Of Fact Harvey's Groves, Inc. is a citrus grower, shipper and retailer. Harvey's Groves has three retail stores in Brevard County. Ten billboards advertise these stores. Two signs advertise the store located at the intersection of I-95 and State Road 50. One of those signs is located one mile north of the intersection and advertises to traffic headed south. The other sign, which is the sign involved in this dispute, is located five miles south of the intersection. It is designed to advertise to northbound motorists, especially tourists on their return trip north. This sign has been in existence since the mid or late sixties. Respondent holds DOT sign permit number 7865-10 for the sign located five miles south of the intersection of I-95 and state road 50. The sign is a nonconforming sign as defined in Chapter 479, Florida Statutes. The sign is located in an area zoned agricultural, and thus would be prohibited except for its nonconforming status. On December 14, 1985, the sign was blown down by a windstorm. All six of the poles which supported the sign snapped a few feet above the ground and below the face of the sign resulting in the rest of the sign structure falling flat on its back. Other than the snapped poles, the sign was only slightly damaged. The two stringers on the top left hand corner of the sign and the top stringer on the right end of the sign had been broken but the remainder of the structure was basically intact. The sign face was still attached to the structure. The majority of the sign face had not been damaged. Mr. Harvey, the only person who saw the sign face prior to its repair, testified that two of the 4' x 8' panels had cracked but were still usable. However, the pictures of the old sign face, introduced-into evidence by respondent, showed that three 4' x 8' panels were missing from the sign face and apparently needed to be replaced. Further, two panels that were in the sign face at the time the pictures were taken contained no copy, and thus appeared to be replacement panels, but no evidence was presented to explain the blank panels. Prior to December 14, 1985, the sign consisted of a 14' x 40' rectangular sign face, with "cutouts" or embellishments which extended the height of the sign at certain points, attached to a sign structure consisting of six perpendicular poles and seven horizontal stringers. The sign face was attached to the stringers which ran the width of the sign. The stringers consisted of 2" x 4" boards which were nailed or spliced together to run the 40' width of the sign. A 2" x 4" board does not come in a 40' length. The poles extended approximately 18 feet above ground level; however, additional boards had been attached to the top of the poles so that the top of the sign extended above the top of the poles. The top two horizontal stringers supporting the sign face were located above the top of the pole that was measured as extending 18 feet above ground level. (R.Ex.#4) The HAGL, or height above ground level, of a sign is measured from the ground to the bottom of the sign face. Immediately prior to December 14, 1985, the HAGL of the sign was approximately 10 feet. However, the evidence was conflicting as to whether the HAGL had always been the same. Mr. King testified that the HAGL was measured in 1976, and at that time the HAGL was five feet. However, although Mr. King personally measured the sign, his testimony was not based on his personal knowledge of the measurement, but was instead based on his recollection of what the DOT records indicated the sign measured. The only record of DOT introduced into evidence, the Outdoor Advertising Inventory Update Listing, listed the HAGL at four feet. However, the computer printout listing alone is not sufficient to establish the HAGL of the sign because there was no competent evidence establishing the source, date, or reliability of the information. Further, other evidence is inconsistent with a 4-foot HAGL. Mr. Wright measured one of the broken poles and determined that the part of the pole still standing was four feet from the ground level to the break on top. However, petitioner's exhibit number 8, which shows the measured pole, notes the location of a 1964 permit tag affixed to the pole. The permit tag is not located on the 4-foot portion of the pole that is still standing; it is located on the portion of the pole that had broken off, and it is located well above the break. Thus, it is apparent that the HAGL could not have been four feet because that would put the permit tag behind the sign face. Petitioner argues that the HAGL had to be only four feet because the broken pole measured 18 feet above ground level and a 14-foot sign face on an 18-foot pole would leave only four feet between the bottom of the sign face and the ground. However, petitioner's argument is premised on the assumption that the top of the sign face was level with the top of the pole. There was no evidence presented to support this assumption. To the contrary, as found in the proceeding paragraph, the evidence clearly indicated that the top of the sign face was located above the top of the pole. Thus, in that there was no competent evidence to the contrary, the testimony of Mr. Harvey, that the HAGL has always been the same, is accepted, and it is found that the HAGL of the sign at all pertinent times prior to December 14, 1985, was approximately 10 feet. Prior to December 14, 1985, the sign was well maintained and in good condition. Every year in October or November the sign was checked to determine if any repairs were necessary. Every two or three years the sign was painted. On December 14 or 15, 1985, Mr. Harvey was advised that the sign was down. He went to the location and found the sign intact, flat on its back, and all six poles broken. Since the sign was down, Mr. Harvey had the sign face removed and taken to Harbor City Signs for painting. About three weeks after the incident, respondent installed six new poles that were 30' in length and extended about 24' above ground level. Respondent put all new stringers on the poles because it was easier and faster to put up new stringers than to remove the stringers from the old poles and put them on the new poles. Because the sign is responsible for a substantial amount of respondent's business, respondent's major concern was to get the sign back up as soon as possible. On January 21 and 22, 1986, Mr. King went to the location. He observed that the old sign structure was on the ground and that a new sign structure, with all new stringers and poles, had been erected. The new structure had nine stringers and the bottom stringer was approximately ten feet above the ground. The sign face had not been attached to the new structure. Mr. King placed a stop work order on the structure. When respondent was ready to attach the repainted sign face, apparently a short time after Mr. King's inspection, the stop work order was discovered. Thereafter, and apparently in an attempt to comply with what he perceived the DOT rules to be, Mr. Harvey had the new stringers removed from the new poles and had the stringers from the old structure affixed to the new poles. The new structure contained 10 horizontal stringers supporting the-sign face, one of which was new material. The cutout was also supported by a new horizontal stringer and a new perpendicular stringer. (P.Ex.10 and 12) The sign face was attached to this structure in March of 1986. The repainted sign face was essentially the same as it was prior to the accident, except that at the bottom, where it previously had stated "Indian River's Finest Citrus", the sign stated "Next Exit Florida's Best." The HAGL of the reerected sign was approximately the same as the old sign. Although Mr. King testified that the new HAGL was about 12 feet and Mr. Wright testified that the new HAGL was from 12-14 feet, their testimony was simply what they estimated the HAGL to be. Mr. Clayton, who actually affixed the stringers and repainted sign face, testified that the repainted sign face was placed at the same height above ground level as it had been before. Further, the photos taken of the sign in March and July (P.Ex.#5 and #10) do not support a finding that the new HAGL was 12-14 feet. Even if the measurement of 28 1/2 feet drawn on petitioner's exhibit number 10 were accurate, and there was no testimony revealing how this figure was derived, it is not useful in determining the HAGL since it purports to measure the distance from the top of the cutout to the ground. The 14' height of the sign does not include the height of the cutout, and there was no testimony to establish how many feet the cutout added to the height of the sign. Therefore, the testimony of Mr. Clayton is accepted as being the most competent evidence regarding the new HAGL. Thus, the HAGL on the sign after the sign face had been replaced was approximately 10 feet. After the sign face was attached in March, the sign looked about the same as it had prior to December. The sign's location in relationship to the road was the same and the HAGL was approximately the same. There was no increase in visibility. As Mr. King testified, there was no significant difference in the way the sign looked after its repair and the way it looked prior to December 14, 1985. There was no evidence presented concerning the actual cost expended by respondent to repair or rebuild the sign. There also was no evidence presented concerning the depreciated value of the sign prior to December 14, 1985. The only evidence presented as to cost was an estimate of the cost to replace the six poles. It was estimated that a new pole would cost about eighty or ninety dollars and that it would cost about thirty dollars per pole to have the poles placed in the ground.
Recommendation It is, therefore, RECOMMENDED that the Department of Transportation's violation notices seeking revocation of sign permit number 7865-10 be dismissed and that permit number 7865-10 remain in effect as a permit for the nonconforming sign located five miles south of the intersection of I-95 and State Road 50. Respectfully submitted and entered this 2nd day of March, 1987, in Tallahassee, Florida. DIANE A. GRUBBS 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 March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0967T Rulings on Petitioner's Proposed Findings of Fact: Accepted in paragraph 2. Rejected as stated in paragraphs 5 and 6 as not supported by competent, substantial evidence. Accepted, except evidence showed seven stringers, in paragraph 5. Accepted in paragraph 2. Accepted, except as to date, in paragraph 3. Accepted in paragraphs 8 and 9. Accepted generally in paragraphs 9 and 10. Accepted in paragraph 4. Rejected as not supported by competent, substantial evidence in paragraph 11. Rulings on Respondent's Proposed Findings of Fact and Conclusions of Law: 1-2. Accepted in paragraph 1. Accepted in paragraph 2. Rejected as irrelevant since only the depreciated value of the structural materials in the- sign is relevant. Rejected as irrelevant. Accepted generally in paragraphs 5 and 6. Accepted in paragraph 7. 8-9. Accepted generally in paragraphs 3 and 4, except as to number panels replaced and damage to stringers. Whether panels could have been reused is irrelevant. Rejected as irrelevant (see ruling on paragraph 4). Rejected as not supported by competent, substantial evidence and contrary finding in paragraph 8. Rejected as irrelevant. Accepted except as to date in paragraph 9 and in Background section. Accepted generally in paragraph 10. Rejected as irrelevant since only actual costs of new materials is irrelevant. Rejected as irrelevant. Accepted as stated in paragraph 10. Accepted in paragraph 12. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Victor M. Watson, Esquire 1970 Michigan Avenue Building C Cocoa, Florida Kaye Henderson, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
The Issue Whether Florida Administrative Code Rule 14-10.007(2)(b) is an invalid exercise of delegated legislative authority by enlarging, modifying, or contravening the provisions of the law implemented, or is arbitrary or capricious.
Findings Of Fact Respondent is the State agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway system, interstate, or federal-aid primary system in accordance with Chapter 479, Florida Statutes. Petitioner owns and operates outdoor advertising signs in the State of Florida. In December 2004, Petitioner purchased four outdoor advertising signs adjacent to Interstate 4 in Polk County, Florida. The signs are located on lots zoned for residential use. In accordance with Section 479.111, Florida Statutes, signs adjacent to interstate highways and federal-aid primary roads are only authorized in commercial, industrial zoned or un-zoned areas. These signs are therefore not in conformance with Section 479.111, Florida Statutes, and are non- conforming signs. When initially permitted, the height from the ground to the bottom of the sign (referred to as "Height Above Ground Level" or "HAGL") for each of Petitioner's four signs was ten feet or less. The overall height of the signs from the ground to the top of the sign ranged from 34 to 37 feet. Respondent erected a sound attenuation barrier (soundwall) along Interstate 4 in Polk County, Florida. As a result, the signs were blocked from view by passing motorists. In August 2006, without seeking the permission of Respondent, Petitioner raised the HAGL of the four signs to a height of 18 to 23 feet above ground level to allow the signs to remain visible over the soundwall. In September 2007, Respondent issued Notices of Intent to Revoke Petitioner's permits for violations of Florida Administrative Code Rule 14-10.007(2). Previously, in 1972, an agreement was entered into between the State of Florida and the United States Department of Transportation to implement and carry out the Highway Beautification Act (HBA) by controlling outdoor advertising signs located along Interstates and federal-aid primary highways. One of the purposes stated in the 1972 Agreement, was to allow Florida "to remain eligible to receive the full amount of all Federal-aid highway funds." In accordance with the Agreement, a determination that Florida failed to maintain effective control of outdoor advertising could result in a 10 percent reduction in federal highway funds. Florida Administrative Code Rule 14-10.007 was primarily drawn from the federal regulation language in 23 CFR 750.707, in effect since 1973, which provides as to non- conforming signs: (5) The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate non-conforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In November 2007, after receiving the Notices of Intent to Revoke Permits, Petitioner filed a Petition for Variance from Respondent to authorize the raising of these four signs blocked by a noise attenuation barrier. Thereafter, Respondent notified the Division Administrator for the Federal Highway Administration (FHWA) that a request for a variance had been received from Petitioner. By letter dated January 7, 2008, FHWA was asked (1) if it had developed any minimum criteria as to when a substantial change had occurred to a non-conforming sign as prohibited by federal regulations and (2) if no minimum criteria were established, whether a variance from an existing rule could be granted to allow a non-conforming sign to be increased in height as minimally necessary to be seen over a noise attenuation barrier. By letter dated February 5, 2008, FHWA responded that "a minimum Federal criteria has not been established," and "an increase in height is considered an expansion or improvement, which is not allowed for non-conforming signs." The letter concluded: To summarize, the HBA and its implementing regulations do not permit the adjustment of a non-conforming sign where action by the State transportation agency obstructs the visibility of the sign from the highway. As such, the FHWA would expect FDOT to deny the request for a variance from the provisions of Florida Administrative Code Rule 14- 10.007(2). FHWA's February 2008, correspondence was not its first attempt to address modifications to non-conforming signs. By letter dated June 15, 2000, FHWA informed the Florida Department of Transportation that non-conforming signs were not permitted to be raised to be seen over a noise wall, stating: Federal regulations require that non- conforming signs must remain substantially the same as they are on the effective date of the State law or regulations enacted to control them. FDOT is required to develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In this instance, we believe raising the sign above the wall would constitute a substantial change and appreciate that FDOT has come to the same conclusion. In September 2000, Respondent asked FHWA if non- conforming signs could be reduced in size or height when required by local ordinance. FHWA agreed to allow a reduction in height for non-conforming signs, if required by local ordinances. Later in 2000, FHWA also authorized the addition of catwalks or other fall-protection devices to non-conforming signs provided such addition does not increase the structural integrity of the sign or prolong the life of the sign. Respondent's rules were amended accordingly to allow non- conforming signs to be reduced in size when required by a local ordinance and catwalks and other fall protection devices to be added provided they did not increase the signs structural integrity. Fla. Admin. Code R. 14-10.007(a)(2), and (2)(b)(1). In December 2003, Respondent sought FHWA concurrence on amending Rule 14-10.007 to allow sign owners to submit a request to raise a non-conforming sign when a noise attenuation barrier screens or blocks the sign. The text of the proposed rule provided that any requests approved by Respondent would be forwarded to FHWA for final acceptance. In March 2005, FHWA responded through a memorandum providing: "Guidance on Adjustment of Non-Conforming Outdoor Advertising Signs." As background, the memorandum noted: With the broader use of noise walls around the country, the conflict between HBA prohibition against substantial improvement of non-conforming signs and sign owners' demands to maintain sign visibility is arising with increasing frequency. In analysis and guidance, the memorandum stated: Current FHWA regulations permit a non- conforming sign to remain "at its particular location for the duration of its normal life subject to customary maintenance." 23 CFR 750.707(c). The intent of the HBA is to permit a non-conforming sign to continue in place until it is destroyed, abandoned, or discontinued, or is removed by the State (which can use 75 percent Federal funding for the removal of the sign). A non- conforming sign must "remain substantially the same as it was on the effective date of the State law or regulations" adopted to implement the HBA. 23 CFR 750.707(d)(5). A height increase is an expansion and improvement of a sign. In addition, increasing sign height to clear a noise wall typically will require new structural measures, such as a monopole design, that would be inconsistent with the concept of limiting non-conforming signs to the duration of their normal lives. The memorandum concluded with the admonition: "If a State fails to comply with the non-conforming sign provisions of the HBA, it will become necessary to evaluate whether the State is maintaining effective control." On February 25, 2008, Respondent entered an Order Denying Petitioner's Petition for Variance or Waiver. The Petition to Determine the Invalidity of an Existing Rule followed on March 20, 2008.
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, 1-10, was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact The subject sign is located 0.8 mile east of State Road 71 on 1-10. This sign was inspected in October, 1980, by an inspector of the Department of Transportation, who observed that the sign's message was visible from the main traveled way of 1-10 and did not bear the permit required by Chapter 479, Florida Statutes. At the time of this inspection, 1-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The sign was located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, a name plate identifying Henderson Signs as responsible for the sign was attached to the sign. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See file, Case No. 81-100T. The foregoing facts establish that the subject sign is a sign regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the sign. Gene Henderson testified concerning the erection of the poles and the attachment of a sign face to the poles. The sign poles were erected during the latter portion of 1975, and a sign face advertising Ramada Inn was affixed to the poles on November 24, 1977. On August 1, 1980, the sign face was changed to one advertising "Regular diesel this exit." The sign is owned by Henderson Signs, which erected the poles prior to the time 1-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of 1-10 along which the subject sign is located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 5, an aerial photograph of the section of 1-10 along which the subject sign is located. This photograph bears the number PD 199 6 and is Sheet 8 of 28 sheets taken on December 29, 1976. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the sign 0.8 mile east of SR 71 on 1-10. The photograph was examined by the Department's engineer, who did not observe the presence of poles or an outdoor advertising sign at the location. The photograph was taken nearly one year after the date Henderson stated the poles were erected but does not reveal the presence of the poles. Even if one assumes they were erected, a sign face was not attached until November 24, 1977, more than one month after 1-10 was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within 30 days and without compensation to the sign owner. DONE and ORDERED this 16th day of September, 1981, 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 16th day of September, 1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
Findings Of Fact Petitioner owns the sign located 186 feet West of Mulberry Point, Citrus County, Florida. Petitioner also owns the property on which the sign is located. The sign advertises a community development which Mr. Infantino is developing. The sign is important to his business. The sign is located on a parcel of real estate adjacent to State Road 44. State Road 44 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to sign's erection. The sign was originally erected in 1980 or 1981. Mr. Infantino had the sign erected by a professional sign company. At that time, the area in which the sign is located was zoned commercial by the county. 1/ No state sign permit was obtained by either Mr. Infantino or the company that erected the sign. Mr. Infantino was not aware of the state sign permit requirement and, therefore, the sign has never been permitted in the nine or ten years of its existence. In 1986, the area in which the sign is located was rezoned by the county. The new designation given by the county to the area was Coastal Lakes - 2, an environmentally sensitive area with a primarily residential use. However, the County allowed the sign to remain as a non-conforming structure. The evidence failed to demonstrate whether there were at least three (3) businesses within 1600 feet of Petitioner's development. Additionally, the evidence did not demonstrate that the surrounding area was primarily commercial in its use or was customarily used in a commercial character. 2/ In 1989, after nine or ten years of the sign's existence, an unnamed DOT inspector discovered the sign involved in this case. The late discovery was never adequately explained at the hearing. However, upon its discovery, the sign was determined not to have a state permit. Mr. Infantino was cited for the violation in a Notice to Show Cause issued by the Department. In response to that Notice, Petitioner filed a permit application with Respondent. The application was reviewed and denied primarily because the area in which the sign was located was not currently zoned commercial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's application for a permit to erect and maintain a sign on State Road 44, on real estate located at Section 8, Township 19, Range 21, Parcel 12200, in Citrus County, Florida, be denied. DONE and ENTERED this 3rd day of February, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1990.
The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the Notice of Illegal Sign dated September 17, 1987; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On September 17, 1987, the Department issued a Notice of Illegal Sign on Right-of-Way for an outdoor sign located in the water and adjacent to U.S. 1 approximately 1.39 miles north of Jewfish Creek Bridge, Monroe County, Florida. The sign in dispute was visible from the road and stated the following: Egan's Waterway Restaurant Gas Good Fast Food. Tourist Info M M 107 1/2 (Right after bridge) The sign did not have a state outdoor advertising permit attached to it. The sign was located approximately 85 feet from the centerline of the road. U.S. 1, also known as State Road 5, is designated as a federal aid primary highway in Dade and Monroe Counties. Egan Adams is manager and president of Egan's Waterway. Mr. Adams admitted he is the owner of the sign in dispute. The sign was mounted on a pontoon-type vessel and was anchored in knee- deep water. The vessel had been registered as a boat and identified by Florida 7454 FG. Prior to issuing the Notice of Illegal Sign, the Department's employee had warned Mr. Adams that the sign was located within the right-of-way. On or about September 19, 1987, Mr. Adams moved the sign further away from the road and removed the orange violation sticker which had been posted on it. The right-of-way in the vicinity of the sign in dispute is 200 feet wide. The centerline of the right-of-way corresponds to the centerline of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a Final Order assessing a fine of $75.00 against Egan Adams pursuant to Section 479.107, Florida Statutes (1987). DONE and RECOMMENDED this 1st day of April, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4495T Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted. Paragraphs 2-6 are accepted. The first sentence of paragraph 7 is accepted. The rest of paragraph 7 is rejected as a conclusion of law, argumentative. Paragraphs 8 and 9 are accepted. COPIES FURNISHED: Charles G. Gardner, Esquire 605 Suwannee Street Tallahassee, Florida 32301 Egan Adams Manager/President of Egan's Waterway Box 2, M.M. 107.5 Key Largo, Florida 33037 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On 30 April 1976 Salter Advertising Company's application to locate a sign facing north on Salter-owned property off the I-110 near the intersection of Scott and Alcaniz Streets, Pensacola, Florida, was approved (Exhibit 1). By application dated 12 November 1976 Salter requested authorization to erect a sign at the same location facing south (Exhibit 8). This application was disapproved by the District sign inspector on December 20, 1976. What happened to the original of Exhibit 8 was not disclosed at the hearing. On a duplicate original of this application, which was introduced as Exhibit 9, the disapproval on the duplicate original application was erased or whited-out and under date 5-2-77, this application was approved by the District Sign Coordinator, the supervisor of the inspector who had disapproved Exhibit 8. The copy introduced as Exhibit 8 differs from Exhibit 9 in several respects. In the first place it is a carbon copy of what appears to have been the original of Exhibit 8. The "received" stamps dated November 24, 1976, December 13, 1976, and December 21, 1976, appear at different places on Exhibits 8 and 9; Exhibit 8 contains a "returned" stamp with date of 11/15/76 which does not appear on Exhibit 9; Exhibit 9 contains a "received" stamp dated April 29, 1977 which does not appear on Exhibit 8; and Exhibit 9 shows sign to be facing both S and W, while Exhibit 8 shows sign facing S only. The reason given for disapproving Exhibit 8 contained in letter dated January 31, 1977, (Exhibit 5), was that there was inadequate space to place a sign at the location proposed because of the City of Pensacola's setback line 50 feet from the center line of Alcaniz Street. This same condition exists respecting the application approved in Exhibit 1. Accordingly, no sign has been erected at the location despite the approval of the South and West facing sign approved in Exhibit 9. In November of 1976 Respondent contacted Petitioner's sign inspector for Pensacola and arranged to meet at the site of the sign proposed in Exhibits 2 and 4. The property at this location was for sale and Respondent wanted to know if it was suitable for a sign. At this time it was customary for the official who approved the application to go to the site before the application was submitted and advise whether or not an application for a sign at the location would be approved. At the on-site meeting the inspector advised Respondent that approval for the intended sign would be forthcoming. Respondent then purchased the property, submitted the application for sign approval and erected the sign at a cost of some $12,000. The testimony, that it was customary for an applicant after receiving on-site approval, to erect the sign before receiving formal approval of its application for sign permit, was not rebutted. The sign erected by Respondent is located approximately 300 feet from the site for which Salter received approval of its application in Exhibits 1 and The I-110 is part of the interstate system.
The Issue The issues to be resolved in this proceeding is whether a bill board (sign) bearing permit number BB058 (Tag BB058) was illegally modified as envisioned in Florida Administrative Code Rule 14-10.007(2), by having more than 50 percent of its materials replaced within a 24-month period and thus whether the permit for the billboard should be revoked.
Findings Of Fact The Petitioner (Salter) is the owner and operator of an outdoor advertising sign structure, located on State Road 89 in Santa Rosa County, Florida. The sign is located approximately at .01 miles north of Metz Road. It is undisputed that the sign is a "non-conforming" sign and it is permitted with Tag Number BB058. Hurricane Dennis struck Santa Rosa County on July 10, 2005. It damaged the sign. Prior to the storm the structural components of the sign consisted of two poles in the ground, or ground supports, two vertical supports (2 x 6) four braces, and two horizontal stringers. Salter's initial damage assessment, done by Mr. David McCurdy, was that one pole had broken and that therefore only one pole or ground support needed to be replaced. It was later discovered that the second ground support pole needed to be replaced. The Petitioner ordered one new pole for a cost of $59.00 dollars. That pole was then cut into two pieces to replace both ground support poles for the sign. All other existing parts of the sign were re-used. No new lumber or other materials were purchased for repair of the sign. Exhibit R-9 in evidence shows that the existing plywood vertical supports (wooden sign board) clearly appears to be an original portion of the sign and not new material. The three 2 x 6 horizontal stringers also clearly are re-used lumber from the original sign. One of them has a yellow tag on the end, commonly attached to pressure treated lumber when it comes from the lumber yard. The picture of the original, damaged sign depicted in R-7 also has the yellow tag attached on the end of the 2 x 6 stringer. That fact, together with the weathered appearance of that 2 x 6 stringer, as well as the other two stringers, shows that they are original material from the original sign. The two vertical 2 x 6's appear to be original material as well. Respondent's Exhibit 9 is a photograph depicting the back of the repaired sign. The vertical 2 x 6 support on the left side of the sign, as depicted in photograph R-9, appears brighter or newer looking than the other 2 x 6 structural members. However, it has a visible edge which appears to show weathering. There are also several old nail holes in the board, as well as a bent nail protruding from the rear of the board between it and the plywood vertical support or face of the sign. It thus appears to be a used structural member as well. Additionally, the horizontal stringer and plywood board at the bottom of the sign, on which the name Salter is attached, is clearly a used portion of the original sign and not new material. On balance it appears quite clearly that the only new structural members of the repaired sign are the two new poles which were cut from the original pole purchased for $59.00 dollars. Thus, the Petitioner has established by preponderant, persuasive evidence, including the depicition of the photographs in evidence, that the sign was repaired with substantially less than 50 percent new materials. In essence, it is now a sign composed of the original materials simply being hung on two new poles. Moreover, for purposes of the rule cited below, concerning the definition of a "destroyed" sign, 50 percent of the ground support poles were destroyed (i.e. broken). Thus it could be deemed a destroyed sign. In that case, although the Department is not asserting revocation based upon the value of the materials used in the repair of the sign, the "Florida Construction Order" in evidence, together with the testimony of Mr. McCurdy and Mr. Crawley, establishes persuasively that less than 50 percent of the value of the materials in the sign before the storm damaged it, were replaced in the repair work or, (37 percent). Thus by either measure of the manner of repair, the preponderant, persuasive evidence shows that the sign was properly repaired with less than 50 percent by quantity of new structural materials added to the sign and with less than 50 percent by value of new materials used in the sign repair, when compared to the value of the structural materials and members in the sign immediately prior to the storm damage. In Summary, the Salter General Manager, David McCurdy, ordered one pole to repair the sign. He ordered no vertical supports, braces, or stringers for the repair effort. He oversaw the repairs himself and was at the site while the repairs were being made. The single pole was cut into two pieces so that two ground support poles were replaced. The materials shown lying on the ground in Exhibits R-6 and R-7, were otherwise re-assembled and re-hung on the new poles. Salter assessed the damage at 37 percent by the value measurement. The value of the structural materials in the sign prior to the storm damage was $157.00 dollars. The cost to repair the sign's structure immediately after the hurricane was $59.00, for purchase of the pole. Thus the replacement materials to effect the repair constituted 37 percent of the value of the materials prior to the damage and the only new material incorporated into the repair sign structure was the single, $59.00 pole cut into two pieces. Therefore, it has not been proven by preponderant evidence that the sign was illegally repaired.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Transportation finding that permit number BB058 for the subject sign structure should remain in effect. DONE AND ENTERED this 19th day of January, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 19th day of January, 2007. COPIES FURNISHED: Laura Joyner Nye, Esquire Lindsay, Andrews, and Leonard, P.A. Post Office Box 586 Milton, Florida 32572 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0485 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Denver Stutler, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
Findings Of Fact Golden Lariat Western Shop was issued permit number AJ 666-12 authorizing a sign on the north side of 1-10, .2 mile west of C-69A in Jackson County, Florida. This location is in an unzoned area, and the permit was granted because of the proximity of this site to a welding business supposedly operating in a wooden building located directly behind the sign. Prior to field approval of the location, a Department sign inspector requested and received copies of receipts for work done by the welding shop, and the sales tax registration for the business. Field approval was granted on July 11, 1983, and the permit application was approved on July 14, 1983. On November 11, 1983, a routine field inspection was conducted by the Department, and there was no commercial activity being conducted in the area where the building and the sign are located. Pictures of the site show a wooden building approximately 10 feet by 12 feet, without any windows, sitting on concrete blocks adjacent to the sign. This area is rural in nature with an agricultural setting. There are fences between the interstate highway and the building, and there is a pony shown in the photographs next to the fence. There is no road in this area, no evidence of any welding activity such as scraps of iron, etc., and the building is not open for business. Additional inspection visits were made by the Department on various dates, end at different times during the day, between December 6, 1983, and May 2, 1984. There was no commercial activity in the area during any of these visits. There was a sign on the building marked "Mike's Welding Shop", but on March 15, 1984, this sign had been replaced by a sign advertising Beach Sign Company, and displaying the telephone number at the residence of one of the owners of the Golden Lariat Western Shop. When this telephone number was called by the Department's Inspector on March 26, 27, 28, 29 and April 23, 1984, no one answered. Neither of these signs gave any directions to show how to get to the place of business. The wooden building is located in an area which is cut off by Interstate 10. In order to reach this building, according to the Department's Inspector, a customer would have to ". . . come off the C-69(A) onto the old C-69(A) and. . . go to the end of that where it dead-ends, turn right down a dirt lane, go past Mr. Branch's house into a field to gain access to the building." Part of C-69(A) overpasses I-10 in this area. On May 2, 1984, the Inspector observed a sign indicating "closed at job site - back 10 a.m." The inspector waited until 12 noon and no one showed up. He also noted it had rained the night before, but there were no tireprints or foot steps in the area where the building is located. The Department requires that an unzoned commercial or industrial area be an active site. The business activity must be operational, and observable, and readily recognized as an active business. As a result of the inspections made by the Department's representatives, a letter was sent advising the Respondent that the sign permit was being revoked because of lack of commercial activity in the area. The owner of Mike's Welding Shop, who is also one-half owner of the Golden Lariat Western Shop, entered into a five-year lease on October 27, 1982, for an area large enough for a one-face sign at the location in question, at an annual rental of $350. This lease does not cover the area where the welding shop is located, but there was a verbal understanding that the building housing the welding shop could be placed there without additional rental. The wooden building was constructed in three days, and placed on top of concrete blocks, but it is not fastened to the blocks and can be moved elsewhere. It has two electrical outlets, but no running water or sewage connection. The welding shop owner is not a certified welder, and he did not know the voltage or the amperage of the welding machine used in this business. He does not go to the shop every day and could not remember if he was present in the shop on the dates when the Department's Inspector found it closed. He contends that others use the shop and the equipment, and he sends them a bill. He also claims that the welder was broken from November 1 to the latter part of December, 1983. He admits that no sales tax return has been filed since December of 1983. This building was leased to Beach Sign Company in March, 1984, for rental of $10 per month. Prior to moving this business to Grand Ridge the owner conducted it out of his home in Panama City. Basically, this business consists of renting or selling portable signs on trailers. These signs are manufactured by a sign company, and rented or sold through a catalog-type of brochure with pictures. The customer orders from the manufacturers. The owner of this sign business contends that he also rebuilds signs, but as yet he has not actually finished rebuilding any sign. He claims to have applied for a sales tax number for this business, but he has not received it yet.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that sign permit number AJ 666-12 held by the Respondent, Golden Lariat Western Shop, authorizing a sign on the north side of I-10, .2 mile west of C-69A, facing east, in Jackson County, Florida, be revoked, and the subject sign removed, on a date five years after the date of the Final Order in this case. THIS RECOMMENDED ORDER entered this 20 day of July, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 20 day of July, 1984. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire P. O. Box 793 Marianna, Florida 32446 =================================================================
The Issue The issue is whether Petitioner is maintaining signs illegally as alleged in a Notice of Violation issued to Petitioner.
Findings Of Fact Respondent, Department of Transportation (DOT), is the state agency that regulates outdoor advertising signs located within 660 feet of the State Highway System, interstate, or federal-aid primary system, as provided in Section 479.105, Florida Statutes (2008). On January 3, 2008, DOT issued Notice of Violation T117MB alleging that eight signs on the Shiver Property (Shiver) in Florida City, Florida, were erected illegally, and requiring the owner to remove or to pay DOT to remove the signs. There is no dispute that the permits to erect the signs have not been issued by DOT. The signs are mounted on top of the Shiver building located at 12 Northeast 3rd Street, Florida City, Dade County, Florida, and are from 16 to 27 feet apart from each other. The property is managed by Roy Dan Shiver (Mr. Shiver) who operates Shiver Glass and Mirror Company at the same location. Other tenants are the Frito Lay Company, a tax preparation service, and a real estate business. One of the signs on the Shiver building advertises for "Captain Shon's Seafood Grill & Pub Fish and Chips MM 103 - Key Largo." Another sign reads "The Big Chill Waterfront Dining 24 miles to Sports Bar Tiki Bar Pool MM 104 - Key Largo - Bayside." A third sign advertises "Sunset - Seafood Marker 88." Captain Shon's Seafood Grill & Pub Fish and Chips, Big Chill Waterfront Dinning, and Sunset - Seafood Marker 88 do not operate businesses on the Shiver property. The remaining five signs are various advertisements for The Shell Man including the following: "The Shell M Windchi T-shirt 32 miles on left * 70 on" (with apparent damage cutting off some of the words); "The Shell Man Unique Gifts * Full Service * Gas Station * Free Shell Necklace 32 miles on left;" "The Shell Man Take Home A pet! Hermit Crabs 32 miles on left * 70 miles on left;" "The Shell Man Come Blow A Conch Horn 32 miles on left;" and "The Shell Man Shark Necklaces Jaws & Gifts 32 miles on left * 70 miles on left." Mr. Shiver testified that The Shell Man has operated a business in the Shiver building for more than seven years, and currently operates in an office shared with Mr. Shiver after having moved from a separate office that is now occupied by a real estate company. His testimony regarding the length of time The Shell Man has operated a business at that location is not supported by the one lease he has with The Shell Man, dated January 1, 2008, with no other evidence of prior agreements. According to Mr. Shiver, The Shell Man operates a business by having brochures and samples of shells, that "they could sell" or "could give them away," in the Shiver office, but The Shell Man has no sign on the door and its owner comes and goes with no regular hours. Petitioner's claim that The Shell Man operates a business on the premises is not supported by the credible evidence. In response to questions concerning the zoning and any special designations for the area in which the Shiver building is located, Mr. Shiver was "sure it's zoned commercial," believed it was part of a community redevelopment area, and testified that it was "very possible" that it is in an empowerment zone. The signs on the Shiver building in Dade County all advertise for businesses located in Monroe County, and are oriented facing north to be seen by traffic heading south. Mr. Shiver testified that drivers on U.S. 1, a federal-aid primary highway, have to turn their heads and look back to see the signs on his building. A permitted billboard north of the Shiver property has two signs on it, one faces north and the other faces east. Petitioner takes the position that, (1) the eight signs are not on U.S. 1 but on the Florida Turnpike off-ramp leading onto U.S. 1; (2) that the evidence does not clearly show that the signs are within 660 feet of and visible from a federal-aid primary highway or interstate; (3) that the signs are not too close together or to the nearest permitted billboard that has signs facing in different directions; (4) that the local government, not DOT, has the authority to regulate the signs under an agreement with the federal government; and (5) sign regulations are inapplicable in the "distressed area." Mack Barnes, the DOT outdoor advertising inspector, who reported the possible sign violations to DOT testified that the signs are approximately 150 feet from the state right-of-way and are visible from U.S. 1. Mr. Barnes took a picture of the building with the signs to submit with his report. He could only submit one or two pictures with his report and to get the best vantage point, he took that picture from the Turnpike off ramp. Mark Johnson, the DOT regional advertisement inspector, also photographed the signs on the Shiver building. Like Mr. Barnes, he took some photographs from the Turnpike ramp, but he took one, Respondent's Exhibit 7, while he was standing on southbound U.S. 1. That picture shows the Shiver building and five of the signs on top of it. Based on Mr. Johnson's measurements, the signs are from 16-to-27 feet apart, and the distance to the nearest permitted billboard, with tag numbers BC367 and CG754, is 445 feet. The measurements were taken with a Nightstar Distance Measuring Instrument and are more exact than an earlier DOT estimate of 491 feet based on the milepost locations. On December 31, 2007, Mr. Johnson checked each door of the Shiver building to see if any of the businesses advertised on the signs were operating on the premises and they were not. He did not go inside any of the offices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the eight signs that are the subject of Notice of Violation T117MB are a public or private nuisance, and requiring that they be removed as provided in Subsection 479.105(1)(a), Florida Statutes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 April, 2009. COPIES FURNISHED: Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A. 411 Meridian Place Tallahassee, Florida 32303 Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelouso, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
