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
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, 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 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.
Recommendation It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. COPIES FURNISHED: Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58 Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Frank J. Seiz 4811 Palmetto Point Road Palmetto, FL 34221-9721 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Holden Avenue, approximately 400 feet west of the intersection of Holden Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately 4.04 miles south of SR 50, as alleged in the violation notice. The subject sign is located on the south side of Holden Avenue, facing east and west which is parallel to U.S. 17/92/441. U.S. 17/19/441 is a federal-aid primary highway. Holden 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 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660 feet 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 in February of 1985 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 The subject sign is visible to traffic on U.S. 17/92/441, although it is perpendicular to Holden Avenue and parallel to U.S. 17/92/441. There is another permitted sign owned by Cashi Signs located on the west side of U.S. 17/92/441, approximately 686 feet south of the Holden Avenue intersection. This sign faces north and south, not east and west and is not on Holden Avenue.
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 July 26, 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 Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
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 finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
The Issue Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code. The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge. The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida. The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign. The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida. Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west. The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction. The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads: "479.07 Individual device permits; fees; tags.-- Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04." The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit. The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway. The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy. In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence. Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs. (In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.) The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected. Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign. Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.) Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814. Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement. It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states: "14-10.04 Permits. Permit Approval Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant. The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature. Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser. Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states: "14-10.04 Permits. Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within 30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible but not readily accessible by the general public." At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
Recommendation It is recommended that the signs located at State Road 814 and State Road 84 that are the subject matter of this dispute be removed. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Nancy Severs, Esquire Miller, Squire & Braverman 500 Northeast Third Avenue Fort Lauderdale, Florida 33301 =================================================================
Findings Of Fact Henderson Signs is a partnership which was initially owned and operated by Ladon Henderson and his wife, Margie Henderson. When Ladon Henderson became inactive, his son, Gene Henderson, became a partner and he now operates the business with Margie Henderson. Henderson Signs has been licensed by the Department of Transportation to engage in the outdoor advertising business since before the year 1976. This license was renewed annually as required, and Henderson Signs now holds Outdoor Advertising License Number 20157 reissued on November 16, 1982. Henderson Signs has operated in Washington, Gadsden and Jackson Counties, but in July of 1981 this business was sold to Tri-State Systems, Inc., and pursuant to the terms of this sale Henderson Signs may not now engage in the outdoor advertising business in these three counties. It may, however, operate elsewhere. Between the years 1978 and 1981 Henderson Signs has received 17 notices of violations from the Department of Transportation charging that signs at 20 locations on Interstate 10 in Jackson County were erected illegally. This resulted in the opening of 22 dockets in the Division of Administrative Hearings to litigate administratively the charges against Henderson Signs. In 14 of these dockets the findings and conclusions resulted in a determination that Henderson was guilty as charged. Some of these guilty findings were appealed to the District Court of Appeals, where they were affirmed on the merits. Some were affirmed by per curiam opinions. Ten other cases have been docketed in this Division involving signs now owned by Tri-State Systems, Inc., pursuant to the sale by Henderson Signs. (This data has been taken from exhibits 1 and 2 offered by the Department.) This evidence demonstrates that the Respondent has repeatedly erected outdoor advertising signs along Inter-state 10 in Jackson County which were found to be illegal signs because of spacing violations, zoning violations, or lack of the required permit authorizing their erection. The legal position of Henderson Signs in many of the cases where administrative hearings were requested subsequent to the service of Notices of Violations, was that no state permits were necessary for varying reasons, one of which was that Interstate 10 had not become a part of the United States Interstate Highway System because it had not been opened to the public. Findings of not guilty were made in one Division of Administrative Hearings docket involving three sign violations, because of a failure of the evidence to prove that Interstate 10 was open to the public. (Data taken from exhibit 2 offered by the Department). The Administrative Procedure Act, Chapter 120, Florida Statutes, affords parties whose substantial interests are affected by actions of Administrative Agencies the right to a hearing to resolve disputed issues. Henderson Signs utilized the provisions of this Act. When the disputes were resolved against the contentions of Henderson Signs, by agency order or by the Court after appeal, it removed the signs that were the subject of these proceedings. The Department of Transportation has never had to remove a Henderson sign for failure of the Respondent to comply with a final order determining it to be illegal. The Respondent contends that a genuine issue existed regarding the necessity of securing a permit prior to the erection of a sign along the site of Interstate 10 in Jackson County, until the time it became a part of the Federal Interstate Highway System by being opened for public traffic. There is no evidence from which a finding of fact can be made as to precisely when Interstate 10 in Jackson County was opened and in use by the public. The formal ceremony opening Interstate 10 was held in November of 1978. During the time between the erection of a sign by the Respondent and the order that it be removed after a determination that it was illegal, Henderson Signs received rental payments from the sign advertiser. Subsequent to July of 1981, when the Respondent sold its sign business in Jackson County, there have not been any notices of violation issued to Henderson Signs by the Department of Transportation.
Recommendation From the foregoing, Findings of Fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Henderson Signs be dismissed. THIS RECOMMENDED ORDER entered on this 21 day of July, 1983, 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 21st day of July, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building; M.S . 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
