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
Findings Of Fact In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was $1,055.00. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in Brevard County, Florida, be DISMISSED; and it is further RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED. THIS RECOMMENDED ORDER entered this 16th day of October, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T 86-0452T Rulings on Petitioner's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact. Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 A. J Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent?s Outdoor Advertising Permits should be revoked pursuant to section 479.08, Florida Statutes, because the associated sign has not remained substantially the same, has been disassembled and re-erected, or has been destroyed, as set forth in the Amended Notice of Intent to Revoke.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the State Highway System, the Interstate, and portions of the Federal-aid Primary System. Green?s Wrecker Service, begun in 1947, was one of the first wrecker services in Alachua County. Mr. Allen Green was the owner and operator. There was no precise testimony as to when Mr. Green first erected the advertising sign at issue here, but Mr. Green?s daughter, Pamela, vaguely remembered that happening: Well, I was seven or eight years old. I remember Daddy and Grandpa going down there after they opened up the road. It was woods there and we used to play on our bikes and I remember my Grandmother coming out and sitting beside the road because she was scared we was gonna get onto 301 because it was always woods back there before, and we could ride and we didn?t have her bothering us, you know. So when the woods got cleared out to 301, then, you know, Granny was sitting out there and daddy and grandpa went down there and done something, put that sign up, I guess. Based upon Pamela?s current age and her recollection, it can be roughly calculated that the sign was put up over 40 years ago. It is a small sign, about three feet by six feet, and has the words “Green?s Garage” in red letters and a smaller “Pennzoil” logo in yellow, along with a large arrow pointing toward the business. The sign sits at the intersection of US Highway 301 and 165th Avenue, the business being located about a hundred yards down 165th Avenue. The sign is important to the business because, due to the trees, one cannot see the actual building or cars at the business location from US Highway 301 until one is already at the 165th Avenue intersection, where one can finally see them through the area that has been cleared out for the road. Mr. Green turned the business over to Pamela before he died, and she has operated the business ever since. She subsequently married Mr. Gary Keen. Mrs. Pamela Green Keen incorporated the business as “Green?s Garage and Wrecking Service, Inc.” There was no evidence as to when the subsequent provision of state law or local ordinance with which the sign fails to comply was passed, but the parties stipulated that the sign is nonconforming, so it is clear that the sign was lawful when erected but could not be put up today. The sign was permitted as a wooden sign with a back-to- back configuration and two supports. That configuration has never changed. The sign was assigned tag numbers BE893 and BE894 by the Department. These tags look like small license plates that are posted on the sign and must be visible from the main travel-way. Mr. Tom Simmons is a senior outdoor advertising inspector for Cardno TBE Consultants (Cardno TBE), a contractor for the Department. Cardno TBE manages the outdoor advertising program for the State of Florida. Mr. Simmons has been employed with them for 12 years, and, before that, performed a similar job for four years with the Department. Mr. Simmons oversees 16 counties in northeast Florida, including Alachua County. Mr. Simmons was very credible in his testimony. Mr. Simmons testified that he was aware of the sign: In the due process of traveling from point A to point B on 301, I had seen it before. Like I stated earlier, after you have been out here a long time like I have, when structures disappear and go away, you pick up on it because it?s something that you are looking for constantly. On September 7, 2011, Mr. Simmons took a picture of the sign. It was down on the ground and was not erect. Mr. Keen testified that shortly before this, he had been having problems with vandals. The windshield of his tow truck had been shattered by a man whose car had been towed to Green?s Garage. That man was caught and ultimately paid restitution. A vehicle had also been stolen from Green?s Garage in June, and Mr. Keen or his wife had requested increased sheriff?s patrols at the business address in August, as evidenced by records from the Alachua County Sheriff?s Department. Mr. Keen testified that people often became upset when their cars were towed and that some were vindictive and would resort to vandalism. He said it was an unavoidable consequence of the business, since he towed cars for the Sheriff?s Department and the Florida Highway Patrol. Mr. Keen testified that he goes down 165th Avenue to US Highway 301, right past where the sign is located, almost every day. His testimony that the sign was not down for more than a day is accepted. Mr. Keen?s first action was to look for signs as to who had knocked it down, but he could not find any evidence such as cigarette butts, or cans, or footprints, so he decided it would do no good to call the police. Mr. Keen re-erected the sign. He did not have to reassemble or add to the materials on the sign in any way, since it was still intact. He just put it back up. The Department issued its original Notice of Intent to Revoke Sign Permit for Violation, dated October 26, 2011, alleging that the sign had been abandoned. Respondent denied this in its response to the Department and requested an administrative hearing. The Department did not request an administrative law judge within 15 days of Respondent?s request. Green?s Garage and Wrecker Service is substantially affected by the Department?s intended action to revoke the permits for the sign. If the permit is lost, the sign must be taken down and no new sign can be erected. Almost a year later, on October 18, 2012, Mr. Simmons took a picture of the sign which showed that it was back up in its original location. He testified that it appeared to be the same sign, constructed of the same materials as before. On March 28, 2013, the Department issued Green?s Garage an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules. At all times relevant to this proceeding, the sign remained substantially the same as it was on the date it became nonconforming. Even if it was determined that the sign did not remain substantially the same simply because it was down for a day or two, simply re-erecting the sign when no assembly or construction was required constituted reasonable repair and maintenance of the sign. The sign was never disassembled throughout the time relevant to this proceeding. Less than 60 percent of the upright supports of the sign were physically damaged at any time relevant to this proceeding. One pole was not damaged at all; the other had only very minor damage. The minor damage to one pole was not such that the normal repair practices of the industry would call for that pole?s replacement. Respondent never had an intention to abandon or discontinue the sign at any time relevant to this proceeding. The facts did not show that the sign structure ceased to exist. All the interrelated parts and material -- including the beams, poles, and stringers -- which were constructed for the purpose of supporting or displaying the message remained completely intact and never ceased to exist as an integrated structure.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Amended Notice of Intent to Revoke Sign Permit for Violation and allow the outdoor advertising permits to continue. DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 30th day of July, 2013.
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
The Issue The issue to be determined is whether Respondent violated Subsections 489.533(1)(m)2., 489.533(1)(r), or 489.533(1)(s), Florida Statutes (2008), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a certified specialty contractor, having been issued license number ES 12000484. Respondent's address of record is 2210 North Monroe Street, Tallahassee, Florida 32303. Respondent is the qualifier for Signs Unlimited. Mr. Patel and his family are the proprietors of a business in Tallahassee named the Beer Stop. On or about November 13, 2008, Mr. Patel contacted Signs Unlimited regarding the manufacture and installation of signs for Beer Stop. He wanted a sign for over the door of the business, and a sign to be added to an already existing sign for the shopping plaza, near the road in front of the plaza. A sign over the door of the building simply required a new pan face. As such, it required no permit for installation. However, the plaza where Beer Stop is located had an already existing sign near the street with individual businesses listed on it. Each individual sign for the businesses advertised has a "cabinet" included on the structure, which holds the electrical connections necessary to make the sign light up and thus make the advertising more visible to passersby. Any sign with these cabinets that is over 100 square feet requires a permit and engineered drawings. Mr. Patel received from Edward Johnston, a Signs Unlimited employee and supervisor, an estimate for a structure permit, engineered windload drawings, and three hours use of a bucket truck. The estimate identified a price of $1,366.33 and did not include the cost of the signs themselves. Mr. Patel also received an estimate for similar permitting and engineering services from at least one other company. On November 19, 2008, Mr. Patel entered into a contract with Signs Unlimited for the signs he wanted. The contract listed the following items: 1) one pan face per sq. ft. (1:3' x 12') d/s, for $1,086.15; 2) two acrylic 1/8' per s. ft. at $688 each; and 3) installation, at 1 1/2 hours use of a bucket truck. With tax, the total was $2,800. Mr. Patel paid a deposit of $1,800 on November 21, 2008. The invoice dated November 19, 2008, makes no mention of a permit or engineered drawings, and the amount of installation time identified is half of that in the original estimate. Mr. Johnston asked Mr. Patel about the permit and engineering for the road-side sign, and was directed to go forward with the fabrication of the three signs and installation of the building sign only. Mr. Patel testified that he assumed the contract price on the November 19, 2008, invoice included Respondent's costs to obtain all necessary permits and everything necessary for completion of the contract. Mr. Patel's testimony to this effect is not credited. Signs Unlimited makes and installs signs. However, it is not unusual for the company to make the signs and provide them to a customer who either has them installed by someone else or installs the signs itself, or for Signs Unlimited to install signs made by other companies. In this case, it would have been feasible for the pan faces to be installed in an existing cabinet on the sign if, for example, they replaced the advertising of a prior tenant. To do so would require no permit. In this case, Signs Unlimited made and installed the pan face above the door of the business. It was not required to obtain a permit for doing so. It also fabricated the pan faces for the sign near the street and delivered them to the Beer Stop location. Signs Unlimited did not install these signs. On December 15, 2008, Mr. Patel paid the remaining balance on the invoice dated November 19, 2008. Nonetheless, a new cabinet (of lesser quality than those already included on the existing structure) was added to the sign by the road. No permit was obtained for this sign. On or about December 15, 2008, the City of Tallahassee received a complaint about the sign near the road from a competitor who had bid on the project. Anthony Maccarone, an inspector for the city, confirmed that no permit had been obtained. He also took pictures of the sign and spoke with Mr. Patel, who showed him the invoice from Signs Unlimited. Mr. Maccarone called Signs Unlimited about the sign, and issued a Stop Work Order to the owner to be posted at the site. Edward Johnston told Mr. Maccarone that Signs Unlimited installed the sign above the door but did not install the other signs. At Mr. Maccarone's request, he removed the cabinet and pan faces from the sign by the road. Both the cabinet and the pan faces were left on the sidewalk by the door of the Beer Stop. Mr. Johnston testified that he tried to contact Mr. Patel to see if he wanted the job properly engineered and permitted, and to have the signs reinstalled. However, he received no response. Mr. Patel, on the other hand, testified that he felt Signs Unlimited should have refunded him some money because not all three signs were installed. However, he admitted that he never made such a request of Signs Unlimited. He filed a complaint with DBPR instead and was waiting for a "judgment" from DBPR.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Electrical Contractors' Licensing Board enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 21st day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 21st day of June, 2010. COPIES FURNISHED: LeChea C. Parson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Carrie D. Johnston Signs Unlimited 2210 North Monroe Street Tallahassee, Florida 32303 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juanita Chastain, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether a billboard structure is in compliance with Chapter 479, Florida Statutes.
Findings Of Fact The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the nearest edge of the State Highway System, interstate, or Federal-Aid Primary system in accordance with Chapter 479, Florida Statutes. Lamar is in the business of providing outdoor signs for entities wishing to advertise. Lamar owns the sign at the northeast corner of the intersection of Betton Road and Thomasville Road in Tallahassee, Leon County, Florida. The sign was built in 1980 and rebuilt in June 1997. The sign has two sides. One side faces Betton Road, and is visible only to persons on Betton Road. The Department does not assert that a permit is required for that side. The other side of the sign, facing to the west, is within 660 feet of Thomasville Road, which is also referred to as State Route 61, and is visible from Thomasville Road. In 1974, State Route 61 was known as U. S. Highway 319. It was a Federal-Aid Primary route. On June 24, 1974, a road denominated Capital Circle located on the outskirts of Tallahassee, was designated U.S. Highway 319. Thomasville Road although no longer a part of U.S. Highway 319, continued to bear the name State Route 61 and remained a Federal-Aid Primary route. In 1983 the Federal Highway Administration listed both Capital Circle and State Route 61 as Federal-Aid Primary routes. In 1991, the Federal Highway Administration created the National Highway System and ceased using Federal-Aid Primary designations. State Route 61, also known as Thomasville Road, nevertheless remained a Federal-Aid Primary road for outdoor advertising classification purposes at all times pertinent to this case. For federal highway identification purposes, the road is currently in the Surface Transportation Program. Prior to May 23, 1996, Lamar held an outdoor advertising permit pursuant to Section 479.07, Florida Statutes, for this sign. The sign was assigned tag number BG 518-35. On May 23, 1996, the Department issued a "Notice of Violation--Signs for Which Permits Have Been Issued," addressing permit number BG 518-35. This notice indicates that it was sent to Lamar via registered mail, return receipt requested. It informed that the sign was in violation of Chapter 479, Florida Statutes, or Florida Administrative Code Chapter 14-10 because the sign: "May not be maintained without permission of the person lawfully controlling site (479.11(9), FS)." On July 31, 1996, in a letter signed by District Outdoor Advertising Manager Vicki L. Davis, the Department notified Lamar that, because the Department had received a statement of loss of landowner's permission for the sign bearing tag number BG 518-35, Lamar was required to remove the sign. The Department included a "certificate of cancellation" with the letter. Lamar admits that it voluntarily canceled its permit for the sign in August 1997. Subsequently, the sign remained with its permit tag attached, unmolested by the Department for approximately 11 years. In January 1997, Lamar acquired a separate monopole structure bearing two signs with tag numbers BN 504 and BN 505. These signs are less than 200 feet to the north of the subject sign. During a 2007 inspection, an agent for the Department observed the subject sign. It still bore tag number BG 518-35. On March 14, 2007, the Department issued the "Notice of Violation-Illegally Erected Sign" addressed above. As noted before, the violation was based on the sign's having no permit.
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 sign is a public or private nuisance and requiring that it be removed as provided in Subsection 479.105(1)(a), Florida Statutes, and dismissing case number 08-1137. DONE AND ENTERED this 16th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of July, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 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 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER 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 4th day of January, 1994.
