The Issue Whether a sign owned by D & H Oil Company located along Interstate 10 approximately 1.1 miles East of State Road 81 bearing the copy "Spur" is in violation of the setback requirements set out in Section 479.11(1), Florida Statutes, and in violation of the permit requirements set out in Section 479.07(1) and (6), Florida Statutes.
Findings Of Fact Respondent D & H Oil Company's sign is located forty- three (43) feet from the nearest edge of the right-of-way of Interstate 10 (I-10) and no permit is affixed to the subject sign. The sign in question is located within the extension of the city boundaries of Ponce de Leon, Florida as extended by ordinance drawn in 1970 and duly filed in 1975. The Town of Ponce de Leon adopted the comprehensive zoning ordinance which authorized use of business signs in commercial areas. An area north of I-10, Section 27, Township 4 North, Range 17 West was designated a commercial area. The Respondent D & H Oil Company constructed their sign in this zoned area which was within forty-three (43) feet of the nearest edge of the right-of- way of I-10, and applied to the Petitioner Florida Department of Transportation for a permit for the subject sign. The Petitioner denied the request for the reason that the sign was erected in violation of the setback requirements of Chapter 479, Florida Statutes. The Respondent D & H Oil Company did not obtain a permit before erecting the sign and it is within the area presently described as the Town of Ponce de Leon, Florida. The Ordinance filed with the Secretary of State in December of 1975 authorized use of business signs in commercial areas. The area north of I-10 in Section 27, Township 4 North, Range 17 West was designated as a commercial area, together with other areas along the highway, and the sign of Respondent is erected within that area. The areas zoned commercially by the Town of Ponce de Leon stretches several miles along both sides of the right-of-way of I-10 and contains no commercial or industrial structures other than outdoor advertising signs. The Town of Ponce de Leon has not submitted to the Administrator of Outdoor Advertising, State of Florida Department of Transportation, its zoning regulations which control outdoor advertising, and the State of Florida Department of Transportation has not notified the Federal Highway Administrator that there has been established within such area regulations which are enforced with respect to the size, lighting and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and customary use. Customary use is use consistent with that use regulated statewide by Chapter 479, Florida Statutes.
Recommendation Require the Respondent D & H Oil Company to remove the subject sign unless it can show within thirty (30) days from date hereof that the area in which the sign is located is in a zoned commercial and industrial area certified by the Florida Department of Transportation to the Federal Highway Administrator that there has been established with such area regulations which are enforced wish respect to the size, lighting and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Post Office Box 746 Niceville, Florida Mr. O. E. Black, Administrator Outdoor Advertising Section Florida Department of Transportation Hayden Burns Building Tallahassee, Florida 32304 Mr. J. E. Jordan District Sign Coordinator Post Office Box 607 Chipley, Florida 32428
Findings Of Fact Petitioner owns the sign located on the west side of and adjacent to U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for a permit to maintain a sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied. DONE and ENTERED this 5th day of June, 1991, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate. The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence. The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate. COPIES FURNISHED: William K. Jennings 119 E. Park Avenue Tallahassee, Florida 32301 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner issued a violation notice on the 29th day of June, 1977, alleging that a sign owned by Respondent located at the northwest corner of Seminole and Pratt-Whitney Road on State Road 80, Palm Beach County, Florida, violated permit, zoning and spacing laws. No application was made for the erection of this sign and none secured from the Florida Department of Transportation. The sign is approximately 12-15 feet west of an existing sign and is approximately 60 feet from the edge of the right of way of the Federal Aid Primary Road 80. The area in which the sign was erected is zoned agricultural. Petitioner contends that the sign violates the set back and spacing requirements of Section 479 and that it was erected in an agricultural zoned area without a permit. Respondent contends that the area is agricultural and is in a remote part of Palm Beach County and that he should be allowed a variance inasmuch as the sign is necessary for the advertising of his business in the rural section of the county.
Recommendation Remove subject sign for failure to obtain a permit and for violation of zoning and spacing laws. There are no provisions for a variance under the facts of this case. DONE and ENTERED this 19th of December, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Allan Black, President Allan Black Construction Corporation Box 5-73 - Wellington West Palm Beach, Florida 33411
The Issue The central issue in this case is whether the Respondent is entitled to a sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether the sign which has been erected at that location is in violation of applicable provisions of Chapter 479, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs. The Respondent owns or controls an outdoor advertising sign (subject sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the centerline of I 4. The sign face and direction of the subject sign are visible from I 4 following that route as it is normally traveled, i.e. on the main-traveled way. The subject sign is no more than 480 feet from the interchange at Fairbanks and I 4. The subject sign was erected in June, 1979, when SR 424 was not designated a federal aid primary road and a state permit was not required. On May 17, 1979, the Department's then district sign coordinator issued a letter to Respondent in response to Creative Media's sign permit application which provided that "a state permit is not required at this time." (e.s.) The Respondent's application in 1979 specified that the sign location was not within city limits which is presumed true for purposes of this record. Further, the 1979 application specified that the sign would be located .1 of a mile (presumably 528 feet) from the intersection. That description of the proposed sign is also presumed true. Subsequently, Fairbanks became a part of the state highway system and a requirement for outdoor advertising permits for signs erected along that roadway became effective. The sign face for which the present permit is sought is within 500 feet of the I 4 interchange. On January 30, 1990, Inspector Dollery photographed the subject sign which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental Apartments at Heathrow". When Inspector Dollery visited the location on January 3 and 4, 1991, the sign face was painted white with only a telephone number (425-5100) depicted. On February 5, 1990, the Department's current district outdoor advertising administrator issued a notice of alleged violation regarding the subject sign. On February 26, 1990, the Respondent filed an application for a permit for the sign face in dispute. The 1990 application acknowledged that the sign was 480 feet from the I 4 intersection. The Department returned the application as not meeting the spacing requirements for signs facing I 4 and for being less than 500 feet from the interchange. POA Acquisition, an outdoor advertising company, holds permits for signs located on I 4 which are within 1500 feet of the subject sign.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign in violation of the rule as set forth in the notice of alleged violations dated February 5, 1990, and denying the permit application of the Respondent. DONE and ENTERED this 22nd day of April, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1991. APPENDIX TO CASE NO. 90-2193T RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 3 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: The six unnumbered paragraphs are addressed in the order presented. The first paragraph is accepted. The second paragraph is accepted. The first sentence of the third paragraph is accepted. The second sentence of the third paragraph is rejected as contrary to the weight of the credible evidence or irrelevant if intended to establish that a DOT official told Mr. Fekete to retain paperwork. The fourth paragraph is rejected as contrary to the weight of the credible evidence. If the sign had been constructed as represented on the application, the fifth paragraph could be accepted; however, Respondent did not build the sign as stated in the 1979 application nor can it be determined from this record whether the spacing requirements along I 4 could have been met in 1979. Certainly, for a sign facing on Fairbanks, the spacing requirements could have been met. The distance from the interchange is ultimately why Respondent's application would have failed in 1979 if accurately requested. Consequently, as drafted, the fifth paragraph must be rejected as contrary to the weight of the evidence. The sixth paragraph is accepted. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida 32801 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S.58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The Respondent, T & L Management, Inc., was issued permits numbered AK081-12 and AK082-12 on or about August 30, 1983. These permits were for the erection of signs on the north side of I-10, approximately .4 mile west of SR 297, in Escambia County, Florida. They were issued because of the proximity of a welding business adjacent to the proposed sign location. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of what she believed to be a welding shop nearby the proposed sign location. This inspector was looking for a welding shop because she had been informed that a welding shop was located there. What she saw was some welding being done on the property where the welding business was supposed to be. This could be seen from the interstate. Apparently because the inspector expected to find a welding business near the proposed sign site, she concluded that such a business existed there, and the applications were approved. However, the occupant of the subject property has lived there for 37 years, and he has never operated a welding business. He has only done welding on this site once since 1980, when he welded a bumper onto a truck in his barn. The photographs which were received in evidence show his property, and the general appearance of this area is residential or rural in nature, and not commercial. It is visible to traffic on I-10. The Department's inspector testified that she used a pair of binoculars to enable her to see a small sign reading "welding" on the property where she saw welding being done. However, the property owner denied that any such sign was on his property. Other witnesses presented by the Respondent also testified that they saw welding being done, but this issue has been resolved by accepting the testimony of the witness who lived on the property and who did the welding on the one occasion, as being the more credible and trustworthy evidence. The adjacent property is leased by Pensacola Outdoor Advertising. This property has a building on it which bears a small sign reading "Pensacola Outdoor Adv." and the telephone number. This building was leased by Pensacola Outdoor Advertising in 1984, and was not used for any business purpose when the permit applications were submitted. This property is also visible from I-10. When the Respondent applied for the subject permits there was no business activity being conducted within 800 feet of the proposed sign location. Therefore, the Department's inspector made a mistake in approving the Respondent's applications for this site. In October of 1984 the Department issued its violation notices advising the Respondent that the subject sign permits were being revoked.
Findings Of Fact U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes. University Boulevard (SR 109) is not a federal-aid primary highway. Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing. The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard. Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by 48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit. This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign. The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
Findings Of Fact On September 1, 1981, the Department received in its district office in Chipley, Florida, the Respondent's application for a permit to erect an outdoor advertising sign adjacent to I-10, approximately 1.62 miles east of SR 69S in Jackson County, Florida. This permit application stated that the location requested was in a commercial or industrial area within 800 feet of a business. The Department's outdoor advertising inspector visited the site after having reviewed the Respondent's application and being told by Harry Fuqua that he would find a business called Branch's Garage there. He found a house with a tin farm-type building like a barn in the back. Inside this tin barn were some tools and welding equipment. There was a sign on the door stating the business hours, and another sign on the side of this tin building stating the name Branch's Garage. None of this was visible from I-10, however; all that could be seen from the interstate was the roof of the residence and part of the tin barn; there was no indication to traffic on the interstate that any commercial activity was being conducted at this location. The inspector's supervisor and the Department's Right-of-Way Administrator both visited the site prior to approval of the subject permit. The supervisor had also been told that he would find a business known as Branch's Garage there, and he was looking for it. At the site he observed what appeared to be a garage and some work being done. This could not be seen from I-10, and from the interstate he could not see anything that would indicate to traffic that a garage was at this location. The Respondent's representative, Harry Fuqua, admits that no business activity was visible from I-10, and that there was nothing to indicate to traffic on the interstate that any commercial activity was being conducted at this location. The site where Branch's Garage is located cannot be reached from I-10 directly. It would have to be approached from one of the side roads after traffic had exited the interstate. Based upon his inspection of the site, coupled with the Respondent's representation that a business called Branch's Garage existed there, the inspector approved the Respondent's application for a sign permit. Thereafter, both the supervisor and the Right-of-Way Administrator also approved the application. The permit was issued on or about September 8, 1981, because of the proximity of the proposed site to the nearby business known as Branch's Garage which had been observed by the inspector, his supervisor, and the Right- of-Way Administrator. Subsequently, after the permit had been issued, the Respondent erected its sign which is the subject of this proceeding. In late 1984 and early 1985 there was no business activity at the subject site and there continues to be nothing there to indicate to traffic on the interstate that any commercial activity exists at this location. The Respondent through its agent Harry Fuqua, submitted the application for the subject permit, and designated thereon that the proposed location was in an unzoned commercial area within 800 feet of a business. This application also certified that the sign to be erected met all of the requirements of Chapter 479, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AF191-10 held by Fuqua & Davis, Inc., be revoked, and the sign which was erected pursuant to this permit be removed. THIS RECOMMENDED ORDER entered this 11th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1985. COPIES FURNISHED: Maxine C. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 James J. Richardson, Esquire P. O. Box 12669 Tallahassee, Florida 32317-2669 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility under law of regulating and controlling outdoor advertising signs such as the one at issue in these proceedings. The Respondent, Marcent Florida, Inc., maintains or controls an outdoor advertising sign located at the intersection of Sandlake Road (State Road 482) and Interstate 4. The sign is located on property belonging to Grenada N.V. but Respondent has permission to maintain the sign at the location. The sign is approximately 14 feet by 48 feet, is 30 feet above ground, and, according to Respondent, "looks similar to a standard roadside billboard." At all times material to this case, the above-described sign did not have a valid DOT sign permit. At all times material to this case, the above-described sign contained language advertising lakefront, lakeview, homesites at North Bay. Additionally, the sign advertised a development known as Park Terrace. Both of the referenced developments are off-site and not immediately adjacent to the subject property. At all times material to this case, the above-referenced sign was located two hundred feet west of the center line of Sand Lake Road. Further, the sign was fifteen feet back from the right-of-way. The subject sign was erected in approximately 1985 or 1986 and is within 1500 feet of a DOT permitted sign. After Respondent received the notice of alleged violations, it made efforts to alter the language of the sign so that it would only advertise the availability of the property on which it is placed. To the date of the hearing, such changes had not been completed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign to be in violation of Chapter 479 as set forth above. DONE and ENTERED this 21st day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 4 are accepted. Paragraph 5 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 6 and 7 are accepted. Paragraph 8 is rejected as irrelevant or argument. Paragraphs 9 and 10 are accepted. Paragraph 11 is accepted. Paragraph 12 is rejected as irrelevant or argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 9 are rejected as irrelevant, argument or fact not supported by the weight of the evidence. COPIES FURNISHED: Jay O. Barber Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas M. Ramsberger Akerman, Senterfitt & Eidson Firstate Tower 255 Orange Avenue Post Office Box 231 Orlando, Florida 32802-0231 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The Respondent, E. A. Hancock Advertising, Inc., erected two double face outdoor advertising signs in June, 1975, in an unincorporated part of Broward County, Florida, without first obtaining a permit from the Petitioner, Florida Department of Transportation. Two of the signs face north and two signs face south. Each sign structure has two faces. After erection the Respondents applied for permits but permits were refused by Petitioner and violation notices dated October 22, 1975, were sent to Respondents indicating that Respondent was in violation of the outdoor advertising laws by erecting signs without permits and erecting "two separate signs erected illegally (which] can be seen from 1-95." After much correspondence between the parties, the matter was set-for hearing November 9, 1976, was thereafter continued and finally heard on July 12, 1977, more than two years after the erection of the signs. The signs were constructed on a county secondary road known as Ravenwood Road, Fort Lauderdale, Florida, and more definitely located as "south from 3497 Ravenwood Road. The road is one lane in each direction and is the type of road usually known as a service road. The billboard signs are elevated to a height of approximately 25 feet from the ground to the top of the sign and sit back about 15 feet from the secondary road. Although the signs can easily be read by travelers on Ravenwood Road, signs designed primarily to serve this two lane road would as a practical matter have been much smaller and much closer to the ground and the message would have had smaller letters. The signs are a "visual overkill" for travelers on Ravenwood Road. See "Petitioner's Composite Exhibit 1" and the Polaroid pictures taken from Ravenwood Road. The signs are elevated to less than 25 feet above 1-95. One sign is about 190 feet from the south lane of the interstate highway and the other about 191 feet from the south lane of the highway. Both signs are on the west side of the interstate highway. The two sign structures are approximately 300 feet apart. One sign is approximately 500 feet from an existing sign and the other is approximately 850 feet from an existing sign. The large size lettering on the large signs are clearly visible to the motoring public on interstate highway 1-95. Three of the four signs are visible and can easily be read by motorists going either north or south on the interstate highway. Evidence is unclear as to whether one side of one of the double space signs is clearly visible from the interstate highway. Copy on the signs is changed from time to time, but at the time the pictures entered into evidence were taken from the interstate highway, copy read, "WHITEHALL PRESTIGE LIQUORS A GREAT VODKA" and "HOLSUM Baked just right for you." The advertising is large and can be read in the Polaroid snapshots that were taken by Petitioner while on the interstate highway and entered in the record as "Petitioner's Composite Exhibit 1." Application for sign permits was made June 16, 1975 to the Broward County Planning, Building and Zoning Department. Permits were issued by the county and were affixed to the signs. The Hearing Officer further finds: The subject signs were constructed primarily to be read by the public traveling on the interstate highway. The size of the signs, the size of the lettering, the elevation of the signs and the angle of the signs provide insurance that messages can be easily read by those traveling on the interstate. The traffic on the interstate is much heavier than traffic on Ravenwood Road. The Petitioner contends that the Respondent is in violation of outdoor advertising laws: No permit was applied for or granted before the outdoor advertising signs were constructed by Respondent. The signs were constructed primarily to be read by the public traveling on 1-95, an interstate highway. The setback of tho Respondent's signs is less than 660 feet from the interstate highway. The signs should be removed as violating the state statutes as well as the federal code laws, rules and regulations contained in the "Highway Beautification Act." Broward County has not submitted to the administrator of the state evidence that it has established effective control with regard to size, spacing, height and lighting requirements contrary to the agreement of the Governor authorized by Section 479.02. Broward County does not enforce any outdoor advertising requirements even if it could be shown the zoning was in compliance with Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code as required by Section 479.02 and the agreement executed pursuant thereto. Respondent contends that: It secured permits from Broward County and attached them to the subject signs. Broward County had zoned the area M-3 and that it is a commercial zone. The signs were erected primarily to be read by the public traveling on Ravenwood Road. There are no spacing requirements of a thousand feet between advertising signs under the Florida law and that even if there were they had not been formerly charged with violating spacing requirements. Public Law 89-285, passed by the 89th Congress of the United States on October 22, 1965, allowed the states and the federal government to agree to set-back for signs nearer than 660 feet of the nearest edge of the right of way in areas zomed industrial or commercial. The agreement between the Governor and the federal government made provisions for local governments to regulate size, lighting and spacing requirements. That in fact the ratification of the Governor's Agreenent under Section 479.02 is not the enactment of a law. The Petitioner has in fact issued permits to others after signs have been constructed and should issue a permit for subject signs to Respondent. At the subject hearing the attorneys for both parties indicated that they desired to submit a Memorandum of Law but neither party submitted a memorandum.
Recommendation Require the Respondent to remove its signs within thirty (30) days from the date of the Final Order. Invoke the penalties of Section 479.18 for violation of Chapter 479. The Department of Transportation has ample enforcement power to remove the signs under Section 479.02 aside from the agreement: Brazil v. Division of Administration, 347 So.2d 755. See also Section 335.13 which states in part: "(1) No person shall erect any billboard or advertisement adjacent to the right-of-way of the state highway system, outside the corporate limits of any city or town, except as provided for in chapter 479." DONE and ORDERED this 5th day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Robert D. Korner, Esquire 4790 Tamiami Trail W. 8th Street Coral Gables, Florida 33134
Findings Of Fact Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property. Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained. A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar. Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site. Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing. By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property. By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department. The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County. The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective. There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising. The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site. The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied. DONE and ORDERED this 28th day of December, 1984, 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 28th day of December, 1984. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
