The Issue At issue in these consolidated proceedings is whether the permits for signs bearing tag numbers BT339, AE862, and AX116 should be revoked, pursuant to Section 479.08, Florida Statutes (2007).
Findings Of Fact Lamar owns and maintains outdoor advertising signs in the State of Florida. Pursuant to the permitting requirements of Section 479.07, Florida Statutes, the Department issues permits and tags to outdoor advertising signs along interstate and federal-aid primary highway systems. Signs that met permitting criteria at the time they were erected, but that do not comply with subsequently enacted laws or that no longer comply with the law due to changed conditions, may nonetheless be permitted and maintained as "nonconforming signs."1 In compliance with Subsection 479.02(8), Florida Statutes, the Department in 1997 and 1998 conducted a statewide inventory of all signs on the state interstate and federal-aid primary highway systems. This inventory became the database for all signs permitted at the time it was completed. The Department sent the inventory results to all sign owners in order to provide them an opportunity to confirm or challenge the accuracy of the results. The database includes the location of the sign; the dates the sign was permitted and constructed; its date and method of construction; the height, including the Height Above Ground Level ("HAGL"); the height, width, and square footage of the sign facing; the number and type of support structures used; whether the sign is lighted or not; the status of the sign as a conforming, nonconforming, or illegal sign; and other identifying information. Subsection 479.02(8), Florida Statutes, provides that the inventory of signs is to be updated no less than every two years. The Department in fact performs the update every year. In 2004, a series of hurricanes passed through Florida, destroying or damaging thousands of outdoor advertising signs. The Department issued notices of intent to revoke the permits of nonconforming signs that appeared to have been destroyed by the storms. In February 2005, the Department and Lamar entered into a settlement agreement that allowed Lamar to rebuild some signs and required the removal of others. The signs at issue in this proceeding were among those allowed to remain standing with repair. As to these signs, the settlement agreement provided: The outdoor advertising signs referenced above remain lawfully erected nonconforming signs and LAMAR may repair said signs, provided that said repair shall be at the pre-storm location and to pre-storm specifications, including configuration, type of materials, height, size, area of face and lighting. Exceptions to pre-storm specifications will be allowed to the extent required to comply with local building codes. Such repairs shall be completed within 270 days of entry of a Final Order approving this Joint Stipulation of Settlement. The referenced Final Order was entered on March 15, 2005. The Department issued permit numbers 13778 and 137790 and tag numbers BT339 (replaced by tag number CF221 at the time of the hearing) and AE862 to a nonconforming, back-to-back sign located along U.S. 1 in Martin County, .08 miles north of Constitution Boulevard in Hobe Sound. At the time of the 1997 inventory, the Martin County sign was a five-pole wooden structure. The Martin County sign sustained heavy damage during the 2004 hurricanes. After the storms, Lamar sent a work crew to the sign's location to rebuild the sign. The work crew replaced the sign with a four-pole wooden structure. Dave Henry, the real estate leasing manager for Lamar, testified that he gave the crew no particular instruction on how to rebuild the sign. During the rebuilding process, Mr. Henry gave his crews the locations, and told them to rebuild the signs as they had been before the storms. Mr. Henry stated that the crew probably looked at the remains of the damaged sign, saw only four stumps in the ground, and assumed that the original sign had only four supports. On March 21, 2006, the Department issued a Notice to Lamar, stating that the sign bearing tag numbers BT339 and AE862 "has been structurally changed and is no longer substantially the same as it was on the date it became nonconforming, in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code Rule." On February 20, 2007, a Recommended Order was entered in Lamar South Florida v. Department of Transportation, Case No. 06-3281 (DOAH February 20, 2007). In that case, Judge R. Bruce McKibben recommended that the Department withdraw a Notice issued to Lamar South Florida because the Notice failed to specify exactly which changes to the sign in question caused the sign to be in violation of the Department's rules. Rather, the Notice merely provided a citation to Florida Administrative Code Rule 14-10.007(2)(a). In a final order dated May 21, 2007, the Department accepted Judge McKibben's recommendation, and acknowledged the "apparent confusion" regarding the running of the 30-day notice period and the nature of the notice required to trigger the running of that period. As a result of the Lamar South Florida case, the Department began to issue Notices that contained more specific information regarding the alleged violations. On July 31, 2007, the Department sent Lamar a replacement Notice for the Martin County sign, adding a more specific description of the violation, which stated that the sign "has been structurally modified in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code Rule: the number of supports has changed."2 The replacement notice also added the following provision: REVOCATION OF THE PERMIT(S) WILL BECOME FINAL thirty (30) days from your receipt of this notice unless you provide information to the Department showing the Notice was issued in error OR you correct the violation within 30 days of your receipt of this Notice, and provide evidence of the correction to the Department. For nonconforming signs, while you may correct the violation, you may not exceed the allowable maintenance standards as stated in s. 14-10.007(2), F.A.C. Lamar did not act within 30 days of the Notice to correct the violation and restore the Martin County sign to a five-pole structure. Mr. Henry testified that a fifth pole was added to the structure on November 16, 2007. The Department issued permit number 7359 and tag number AX116 to a nonconforming, single-faced sign in Polk County along U.S. 27, .141 miles east of Heatherwood Boulevard in Lake Wales. On November 22, 1997, the Polk County sign was inventoried and photographed as a seven-pole wooden structure. Lamar did not own the sign at the time the 2004 hurricanes damaged it. Lamar acquired the Polk county sign in 2005, after it had been rebuilt as a six-pole structure. On March 21, 2006, the Department issued a Notice to Lamar, stating that the sign bearing tag number AX116 "has been structurally changed and is no longer substantially the same as it was on the date it became nonconforming, in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code." On July 31, 2007, the Department sent Lamar a replacement Notice for the Polk County sign, adding a more specific description of the violation which stated that the sign "has been structurally modified in violation of s. [sic] 14- 10.007(2), Florida Administrative Code: the number of supports has changed. . .".3 The replacement notice also contained the language quoted at finding of fact 14, supra. Lamar did not act within 30 days of the Notice to correct the violation and restore the Polk County sign to a seven-pole structure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation revoking the permits for the nonconforming signs bearing tag numbers BT339, AE862, and AX116. DONE AND ENTERED this 21st day of February, 2008, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 21st day of February, 2008.
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Bennett Road, approximately 280 feet north of the intersection of Bennett Road with State Road 50, in Orange County, Florida. This location is approximately 1.4 miles west of SR 436, as alleged in the violation notice. The subject sign is located on the west side of Bennett Road facing north and south which is parallel to State Road 50. State Road 50 is a federal-aid primary highway. Bennett Road is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in 1984. The subject sign is visible to traffic on State Road 50, although it is perpendicular to Bennett Road and parallel to State Road 50. There is another permitted sign owned by National Advertising Company located on the north side of State Road 50, east of the Bennett Road intersection, approximately 114 feet from the subject sign. The National sign faces east and west, not north and south, and it is not on Bennett Road. Another permitted sign owned by Peterson Outdoor Advertising is located on the north side of State Road 50, approximately 475 feet west of the Bennett Road intersection. This sign faces east and west, not north and south as the subject sign does, and it is not on Bennett Road as the subject sign is.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether the Department of Transportation (“Department”) properly issued a Notice of Denied Outdoor Advertising Permit Application for the eastward face of the Monument Sign owned by Kathryn Hogan Pereda and Margaret Hogan Marker, d/b/a/ HFT Advertising (“Petitioner” or “HFT”).
Findings Of Fact In 1979, Petitioner’s family acquired the property at 2930 Southwest 30th Avenue, Pembroke Park, Florida. The family’s parcel is part of a subdivision of several smaller parcels, which houses a number of different businesses. Subsequently, Petitioner’s grandparents purchased the sign parcel, which was conveyed to Petitioner in 1989. The original sign on the sign parcel was the Coral Base Sign (“Coral Base Sign”). The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 660 feet of, and visible from, interstate highways. In approximately 1991, Petitioner replaced the Coral Base Sign. HFT retained a contractor to construct the new sign (“Marquee Sign”). HFT made sign space available to other Southwest 30th Avenue businesses on the Marquee Sign. The Marquee Sign was built as a free-standing sign that was 10 feet wide and 15 feet high and was permitted through the Town of Pembroke Park. When the contractor built the Marquee Sign, he did not remove the footings from the original Coral Base Sign to build the new sign. Instead, footings for the new sign were placed immediately contiguous to the Coral Base Sign footings on the CSX railroad property. In 1994, HFT went back before the Town of Pembroke Park and obtained approval through a variance proceeding for a permit to add another section to the Marquee Sign and made it with two faces 15 feet high and 20 feet wide. The expansion allowed more businesses in the subdivision to advertise. In 2010, the Department notified Petitioner that the Marquee Sign was located within the Department’s right-of-way. By letter dated May 28, 2010, the Department informed Petitioner “per Florida Statutes, signs are prohibited to be within the right-of-way and will need to be relocated onto property owned by Margaret Claire Hogan and Kathryn Anne Hogan.” Petitioner believed the Marquee Sign was on their family’s sign parcel but found out after a survey that the sign was not on their property but on the right-of-way. In 2011, Petitioner complied with the Department’s request to relocate the sign. HFT obtained another permit from the Town of Pembroke Park and removed the Marquee Sign from the Department’s right-of-way. Petitioner spent approximately $50,000.00 permitting, designing, and erecting the current HFT Monument Sign (“Monument Sign”) back in the location east of the sign parcel where the Coral Base Sign had stood originally. The only viable use of the parcel on which the Monument Sign is located is the operation and maintenance of the Monument Sign. Space on the Monument Sign is leased by Petitioner to the owners/operators of the Southwest 30th Avenue businesses for the purpose of identifying the location of their respective businesses to their customers and potential customers. The Monument Sign does not identify any businesses other than the Southwest 30th Avenue businesses. The Monument Sign is located within the controlled area of both Hallandale Beach Boulevard and I-95. I-95 is part of the interstate highway system. The eastward face of the Monument Sign is visible from the main-traveled way of I-95. A Clear Channel Sign is on the same side of I-95 as the Monument Sign. The Clear Channel Sign was permitted by the Department in 1984. It is located approximately 250 feet to the south of the Monument Sign. On August 2, 2013, Mark Johnson (“Johnson”), a Regional Outdoor Advertising Inspector with the Department, performed an inspection of the Monument Sign and determined that it is an illegal and unpermitted sign. Johnson posted a Notice of Violation on the Monument Sign stating the sign was in violation of the permitting requirements of section 479.07, Florida Statutes (2015). On August 5, 2013, the Department issued four Notices of Violation-Illegally Erected Sign to the Town of Pembroke Park and the four businesses advertised on the Monument Sign. The Notices of Violation apprised the owners that the Monument Sign was in violation of section 479.105 and that within 30 days the sign either needed to be removed or an outdoor advertising permit application needed to be filed with the Department. Administrative hearing rights and permit application instructions were also made available in the Notices of Violation. However, no request for an administrative hearing was received by the Department. On September 4, 2013, HFT submitted two outdoor advertising permit applications numbers 59865 and 59866 for the eastward and westward faces of the Monument Sign, which was erected in 2011. On September 6, 2013, the Department returned HFT’s applications as incomplete. On October 15, 2013, HFT submitted two outdoor advertising permit applications numbers 60016 and 60017 for the eastward and westward faces of the Monument Sign. On November 12, 2013, the Department denied Petitioner’s applications for permit. The Notice of Denied Outdoor Advertising Permit Application provided the following basis for denial: Sign does not meet spacing requirements (1500’ for interstates, 1000” for FAP). In conflict with permitted sign(s), tag#(s): CG242/243. Held by: Clear Channel Outdoor- South Florida Division. [s. 479.07(9)(a), 1.,& 2, FS] On December 17, 2013, HFT timely filed a Request for Formal Administrative Hearing contesting the Department’s exercise of permitting jurisdiction and the denial notice. HFT does not dispute that: (i) I-95 is an interstate highway within the Department’s permitting jurisdiction; (ii) the HFT Monument Sign is within 660 feet of the nearest edge of I-95; or (iii) the HFT Monument Sign is located within 1500 feet of another permitted sign on the same side of I-95. On January 6, 2014, the Department determined the westward face of the Monument Sign was not visible from I-95 and met the spacing requirement for Hallandale Beach Boulevard. The Department issued permit number 56688 for the westward face of the Monument Sign but did not permit the eastward face.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order upholding Petitioner HFT’s Notice of Denied Outdoor Advertising Permit Application for the eastward face of the Monument Sign. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 14th day of September, 2015.
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 The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice. The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441. U.S. 17/92/441 is a federal-aid primary highway. Kaley Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding. By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required. Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue. There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue. The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1981, but which had not been issued. It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact A McDonald's sign visible to automobile traffic on the I-75 is located .08 miles north of CR-54 along the I-75, 934 feet into the interchange between the I-75 and CR-54 in Pasco County, Florida. The I-75 at this location is part of the federal interstate highway system and is outside an incorporated town or city. The sign has no permit tags attached and no permit tags have ever been approved for the site. The property on which this sign is erected is approximately 77' by 52' with the southeast corner cut off owned by McDonald's Corporation. The site is connected to the restaurant site by a 15 foot strip of land which intersects a proposed road 275 feet north of the restaurant site. The sign is 1122 feet from the restaurant as measured along the paved surface between the sign and restaurant. Between this sign and the restaurant along CR-54 is a Standard station, an Amoco station, a Circle K shop and a Days Inn. The closest businesses to the sign are Abe Chevron station and the Days Inn Motel. Respondent presented proposed plans evidencing an intent to construct a McDonald's playland on the property on which the sign is located, presumably as an integral part of the restaurant. However, at the time of the hearing the property served only as a site for the sign. McDonald's playlands have been developed as a selling tool for families traveling over interstate highways and are generally located adjacent to the restaurant so children occupying the playland can be monitored by the parents from inside the restaurant. Respondent's witnesses were aware of no McDonald's playland located other than immediately adjacent to the restaurant building. Construction of the playland at the site of the existing sign has never-been started due to construction, drainage and sewage disposal problems at the restaurant site.
The Issue Whether the subject sign of Respondent is a lawful sign for which Respondent should be compensated upon its removal.
Findings Of Fact Respondent, David Grover, owns a V-shaped billboard with a north face and a south face located outside any incorporated city or town 0.14 mile south of State Road 518 on Highway A1A, a federal-aid primary highway, advertising "Sun Harbor Nursery" on both faces of the sign. The nursery advertised on the billboard is a business owned by Respondent located approximately one half mile from the subject sign. (Transcript, page 53.) A violation notice dated July 15, 1981 was Served on Respondent alleging that the subject sign is in violation of Section 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, because it was erected without a permit; and that it is also in violation of Section 479.02, Florida Statutes, and Rule 14-10.06(1)(b), Florida Administrative Code, because it is located within 500 feet of a permitted sign. Respondent's father, David Grover, Sr., erected the V-shaped billboard in 1961 without a permit and maintained it until he sold the land on which it is located to his son in 1974. (Transcript, pages 31-35.) No application for a permit from the Petitioner Department was made during the time David Grover, Sr. owned the land and sign or since Respondent owned the property until 1981, when an application was denied because permits had previously been issued for other nearby signs. (Transcript, pages 43 and 46.) There is a distance of approximately 118 feet between the south face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. There is also a distance of approximately 118 feet between the north face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. (Petitioner's Exhibit 1; Transcript, pages 14, 15 and 41.) Subsequent to the hearing Respondent admitted that his sign is in violation of the statutes and rules requiring a space of 500 feet from a permitted sign but contends the sign is a lawful sign having been grandfathered by the passage of time since its erection in 1961 and therefore he is entitled to compensation upon its removal. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the testimony adduced, the evidence admitted and after consideration of the findings of fact and conclusions of law submitted by the parties, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within thirty (30) days from the date hereof and without compensation to the sign owner. DONE and ORDERED this 20th day of January, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 20th day of January, 1982. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Peirce Wood, Esquire 542 Hammock Road Melbourne, Florida 32901 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4. DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate. As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4. Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader." The sign was permitted by the City of Lake Mary on October 17, 1984. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T. DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mac Davidson Maxmedia Outdoor Advertising Post Office Box 847 Winter Park, Florida 32790 Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Respondent, San Ann Food Stores, is the owner of an outdoor advertising sign located 5.89 miles east of the Hillsborough County Line, on the east side of Interstate 4 in Polk County. More specifically, the sign is east of the U.S. 98 and I-4 intersection which lies just north of the City of Lakeland. The sign is two-sided, with one side facing eastward, and the other facing westward. It sits on top of two poles which are approximately sixty feet high. The parties have stipulated that the sign is visible from I-4, although just barely, and lies within five hundred feet of that highway. They have also stipulated that no permit has ever been issued by petitioner, Department of Transportation (DOT), authorizing its use. The sign does not lie within the corporate limits of a city; however, this is immaterial to the resolution of these cases. On an undisclosed date, a DOT inspector observed the sign while conducting an inspection of another sign and found no display of a current valid permit tag. After checking his records, he found that no permit had ever been issued authorizing its erection and use. It was also determined, without contradiction, that the sign is within five hundred feet of the interchange of I-4 and U.S. 98. Such an intersection is classified as a restricted interchange. According to Rule 14 10.06(2)(b)2. and state law, no signs are permitted within five hundred feet of such an interchange. The sign in question was erected by Sun Oil Company around 1967 or 1968 when no permit was required. Respondent purchased the property on which the sign is located in April, 1978. It assumed that Sun Oil had obtained all necessary permits from the state to maintain and use the sign. It did not learn that Sun had failed to obtain a sign permit until the Notice of Violation was issued by DOT in February, 1985. It is willing to repay all fees owed during prior years if DOT will allow the sign to remain.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's sign (facing east and west) be found in violation of the statutes and rules cited in the conclusion of law portion of this order, and that it be removed. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
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.
