Findings Of Fact State Road 51 is a federal-aid primary highway where it crosses County Road C-349 in Suwannee County. The signs were erected in the spring of 1982 and no application for permit was submitted and no permit has been issued for these signs. The signs are visible from SR 51 and are intended to give to the passing public the directions to Respondent's place of business. Without such directions, the business is difficult to locate. The signs are erected within 660 feet of SR 51 in an unzoned area outside the corporate limits of any town or city. The signs are located 58 feet from the edge of SR 51 and 50 feet from C-349.
Findings Of Fact On or about December 16, 1986, Petitioner filed an application for variances concerning a sign he proposes to erect at 1419 Sunset Point Road, Clearwater, Florida. This property is zoned "OL", limited office. Petitioner is seeking a variance of 24 square feet to permit a 48 square foot sign, and a variance of 14 feet to permit a sign 20 feet high. Without the requested variances, a sign cannot exceed 24 square feet and 6 feet in height at the subject location. The Development Code Adjustment Board denied Petitioner's application on January 22, 1987, and Petitioner timely appealed. John Richter, Development Code Administrator, testified that approval of these variances would have an adverse affect on surrounding properties, and would deviate from Code requirements without the establishment of any conditions unique to this property, or showing of topographical conditions which present an unnecessary hardship to the applicant if the Code is strictly applied. Public witnesses supported Richter's testimony. The property in question is the site of a child care facility known as Creative Learning Center which offers pre- school and after school care. The property slopes approximately three feet from east to west, and there is a sidewalk across the front of the property which is intersected by the driveway that provides ingress and egress to the child care facility. Due to the location of public schools in the neighborhood, children and others pass regularly in front of Petitioner's facility along the sidewalk. There is no sidewalk on the other side of the street across from Petitioner's property. Petitioner argues that placing the sign at a 6 foot height next to the driveway and sidewalk will cause a visual obstruction for cars using the driveway due to the slope of the property, and further that it will be hazardous for children and others passing in front of this facility on the sidewalk. A sign placed at a six foot height will also block the view of on-coming traffic for cars exiting the driveway, according to Petitioner. He also testified that a sign which is 6 foot in height will be subject to vandalism, which has occurred frequently in the area. Brian Bennett, who was accepted as an expert in traffic and safety engineering, testified that any driver leaving the subject property would have his vision impaired by a sign erected on the property at a height of six feet and located as shown in architectural drawings of the site. The slope of the property would also cause any child on a bicycle to increase speed as he approached the driveway, and this would increase the safety hazard if the sign is placed next to the driveway and sidewalk. In Bennett's opinion, a sign 20 feet in height would allow for a clear line of sight and prevent any safety hazards which would otherwise result from this location of the sign on the property. Petitioner contends that the only place on the subject property he can locate this sign is as shown on a series of architectural drawings introduced in evidence at hearing. He also argues that Respondent's approval of these drawings specifically included the location of the sign. These drawings show a pylon sign located next to the driveway and the sidewalk which passes in front of the property. The drawings are accompanied by approvals concerning Code compliance from various departments of the City. However, the approvals do not specifically deal with the location of the sign. The drawings do not show the proposed height or square footage of the proposed sign. Therefore, these drawings, and the City's approval thereof, do not constitute prior approval of the variances here at issue; nor do they establish that the only place Petitioner can locate a sign on the property is as shown in these drawings. Competent substantial evidence was not produced to establish that Petitioner's sign can only be located as shown on these drawings. Since it has not been established that the sign in question can only be located next to the driveway and the sidewalk, the expert testimony of Brain Bennett is irrelevant and immaterial since it related solely to a sign at such location. While a safety hazard might result from the sign placement shown on the drawings, it has not been shown that increased height and square footage is the only way to eliminate this hazard. Placement of a sign which is in full compliance with the Code at another location could also remove the safety hazard. It has not been established that prior approvals by departments of the City as shown on, and as accompanying these drawings, preclude such alternative placement. Petitioner seeks these variances to increase the business exposure of his child care facility. It has not been shown that conditions unique to this property exist which would result in an undue hardship if the Code's provisions were strictly applied. The fact that there are other signs in the area that exceed Code limits does not, per se, establish that Petitioner may also exceed such limits and be granted a variance.
The Issue The issue in this case is whether the subject sign was in violation of Section 479.07(1), Florida Statutes, and Rules 14-10.04(1) and 14-10.07(1) and (2)(a), Florida Administrative Code.
Findings Of Fact Notice as required by the statutes and rules was provided the Respondent. The sign in question bears the name of Melweb, the Respondent in this cause, on its face as required by law. The sign in question was constructed on or about January 13, 1978. It was constructed in the same location as a pre-existing sign which had been destroyed. See Exhibits 3, 4 and 5. This destruction was the result of a windstorm the day before the pictures, Exhibits 3, 4 and 5, were taken. The subject sign is located on US Highway 1 outside an incorporated city or town within the State of Florida, a roadway open to the public at all times relevant to the other testimony received. The sign which was destroyed bore the licensing tag issued by the Department of Transportation in 1974, 442-12, and all fees were current on the sign which was destroyed. This permit is currently attached to the subject sign which is newly constructed. The subject sign was constructed with new poles and new facing, and is slightly smaller than the original sign. The subject sign is located 250 feet from another sign owned by Melweb on US Highway 1. Melweb has not applied for a new license or permit for the subject sign, which would have been required because the original sign which was destroyed did not conform to existing standards of spacing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the subject sign be removed by the Department of Transportation. DONE and ORDERED this 5th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Tom Yates, Bulletin Manager Melweb Signs, Inc. 300 Fentress Boulevard Post Office Box 9130 Daytona Beach, Florida 32020
Findings Of Fact Based on the evidence received at the February 8, 1989 hearing, the undersigned makes the following findings of fact: On March 15, 1987, Patricia A. Nelson and her husband, Robert Nelson, erected a two-faced sign on the southeast corner of the intersection of U.S. 98 and County Road 700A in the unincorporated area of Okeechobee County. The sign was placed next to other non-official signs that were already standing on the corner. The Nelsons' sign measured four feet by six feet and cost the Nelsons $400.00 to construct. It advertised on both facings the County 700A Country Store and Patricia's Restaurant and indicated that these establishments were four miles to the east. In early 1988, the Nelsons learned that their sign was located on the right-of-way of U.S. 98, which is part of the federal-aid primary highway system. They therefore moved the sign back two feet, off the right-of-way and on adjacent property which was zoned for agricultural use. The sign, however, was still visible from, and could be read by motorists with normal eyesight travelling both northbound and southbound on, U.S. 98. Richard Hayford has been an Outdoor Advertising Inspector for the Department of Transportation for approximately the past year. His immediate supervisor during this time has been James Dunsford, the Department's District I Outdoor Advertising Administrator. Among Hayford's responsibilities in his capacity as an inspector is to travel the federal-aid primary highways in District I, including those in Okeechobee County, and to look for violations of the state outdoor advertising law. Hayford was performing these duties on May 4, 1988, when he noticed the Nelsons' sign while driving on U.S. 98. Upon a closer inspection of the sign, he observed that it did not have a Department-issued permit tag affixed to it. He therefore determined that the sign was in violation of Chapter 479, Florida Statutes, and posted a notice on the sign indicating that the sign was illegal and had to be removed within thirty days. Hayford did the same with respect to two of the other signs on the corner. Such a notice, however, was not posted on the remaining sign on the corner, which was the largest of the four and gave information about the New Covenant Christian Outreach. Later that same day, May 4, 1988, a Notice to Show Cause was sent to the Nelsons by certified mail. The notice advised the Nelsons that their sign violated Section 479.105(1)(a), Florida Statutes, and that they had to either comply with this statutory provision or request a hearing on the alleged violation within 30 days. The following warning was given to the Nelsons in the notice: In either case if you fail to comply within the thirty (30) day period above, then the described violation(s) shall be considered true and the Department of Transportation reserves the right to take such action as the law permits including, but not limited to, the removal of the sign without further notice. The Nelsons neither removed the sign, nor obtained a permit from the Department to maintain it at its location adjacent to U.S. 98, within the 30-day period prescribed in the Notice to Show Cause. The Department therefore had the sign removed. There was no evidence presented at hearing regarding the cost, if any, of the sign's removal. Although the Nelsons attempted to obtain a form to apply for a permit for their sign shortly after learning of Hayford's allegation concerning the sign's legality, they first applied for such a permit only after the sign had been removed. The application was denied. Among the reasons given for the denial was that the sign would be located on property zoned for agricultural use. During the application process, the Nelsons spoke with District I Outdoor Advertising Administrator James Dunsford on the telephone. Dunsford apprised them during their telephone conversations that they would not be allowed to re- erect their sign at its previous location. By letter dated July 26, 1988, the Nelsons requested a hearing on the issue of whether their sign was in violation of Section 479.105(1)(a), Florida Statutes. They have never sought a hearing on, or otherwise formally challenged, the denial of their application for a permit. Of the signs that stood on the southeast corner of the intersection of U.S. 98 and County Road 700A on March 15, 1987, when the Nelsons erected their sign, only the New Covenant Christian Outreach sign still remains.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding that the Nelsons' sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that it was properly removed in accordance with the provisions of Section 479.105, Florida Statutes. Petitioner, however, should not assess any removal costs against the Nelsons. DONE and ENTERED this 21st day of March, 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 21st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4045T The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Department's Proposed Findings of Fact: Accepted and incorporated in this Recommended Order; Accepted and incorporated, except to the extent that it states that the notice was given on May 14, 1988. The preponderance of the evidence reflects that such notice was given on May 4, 1988; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated. The Nelsons' Proposed Findings of Fact: Paragraph 1, second and third sentences, to the extent that it suggests that the Nelsons spoke with Dunsford on the telephone. Accepted and incorporated. Paragraph 1, fourth sentence, to the extent that it reflects that Dunsford told the Nelsons that they would be unable to re-erect their sign at its previous location. Accepted and incorporated. Paragraph 2, first sentence, to the extent that it asserts that "there are hundreds of signs on agricultural land." Rejected as irrelevant and immaterial. The Nelsons were cited with a violation of Section 479.105(1)(a), Florida Statutes, and their sign was removed, because they had not obtained a permit for the sign, not because the sign was located on land zoned for agricultural purposes. The Nelsons subsequently attempted to obtain a permit and their application was denied, in part, because the sign would be located on agriculturally zoned property; however, the denial of that application was never formally challenged by the Nelsons and it is not an issue in the instant case. Paragraph 2, first sentence, to the extent that it states that the Department's attorney knew "that violating [the Nelsons'] sign was not right." Rejected as irrelevant and immaterial. Paragraph 2, second sentence, to the extent that it addresses the motive of the Department's attorney in objecting to the admissibility of certain exhibits proffered by the Nelsons. Rejected as irrelevant and immaterial. Paragraph 3, first and second sentences, to the extent that they allege that the Nelsons have been discriminated against as evidenced by the fact that there are "many, many others with signs on agricultur[al] land." Rejected as irrelevant and immaterial. COPIES FURNISHED: Charles Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert and Patricia A. Nelson 22302 Northwest 176th Avenue Okeechobee, Florida 34972 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450
The Issue Whether the subject signs violate the state and federal laws and should be removed; Whether Respondent has violated Section 479.07(1)(4)(6) and Section 479.11(1), Florida Statutes.
Findings Of Fact By letter from Benjamin W. Redding, Esquire, the Hearing Officer was advised that no appearance would be made on behalf of Commander Realty, Inc. and notice was given that Respondent waived any objections to conduct the hearing at the place other than Chipley or in a summary manner. The following described sign is located in an unzoned area outside the city limits in an essentially rural area. The location is on a federal aid highway, U.S. 98. The location is on the corner of U.S. 98 and East Eleventh Street. The copy is Town and Country Lake Estates, a double-faced sign. This sign sets two feet on the road right of way, has never been permitted, no application was made before its erection sometime during the fall of 1975.
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, 1-10, was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact The subject sign is located 0.6 mile west of State Read 69 on the north side of 1-10. This sign was inspected on October 3, 1978, by an inspector of the Department of Transportation, who observed that the sign's massage was visible from the main traveled way of 1-10 and did not bear the permit required by Chapter 479, Florida Statutes. At the time of the inspection, 1-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The sign was located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See file, Case No. 81-099T. The foregoing facts establish that the subject sign is a sign regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the sign. Henderson Signs presented the testimony of Gene Henderson regarding when the poles for the sign were erected. Henderson stated that the poles for the subject sign were erected sometime in 1975; and from March 10, 1978, until August 10, 1978, bore two sign faces advertising Arrowhead Camp Grounds and Best Western [Motel]; and from August 10, 1978, to present signs advertising Arrowhead and Holiday Inn. W. B. Reddock, the owner of Arrowhead, stated the sign was erected in the latter part of 1975, or early part of 1976. 1-10 was not open to public traffic at the time the poles were installed. The Department introduced an aerial photograph (DOT Exhibit 4) of the area 0.6 mile west of SR 69 taken on December 10, 1975. This photograph bears the number PD 1822 and has a scale of one inch to equal 50 feet. The location of the sign was measured by the Department's engineer, who indicated by a red mark the location of the sign on 1-10, 0.6 mile west of SR 69 and established that the scale of 1:50 was accurate. The photograph was examined by the Department's engineer, who did not observe the presence of poles or an outdoor advertising sign at the location. The Department introduced DOT Exhibit 3, which was an extract of information maintained by the Department district office concerning when portions of 1-10 in Jackson County were opened to public travel. DOT Exhibit 3 reveals that the portion of 1-10, 0.6 mile west of SR 69 was completed on February 18, 1976, and opened to the public on October 14, 1977. From the evidence presented, it is clear that the sign was not present on December 10, 1975, when the aerial photograph, DOT Exhibit 4, was taken. It is possible that the sign was erected between December 10, 1975, and October 14, 1977, the date this highway was opened to the public. Construction during this period would not be contrary to the testimony of Reddock or Henderson. Based upon Henderson's testimony, no advertising message was put on the sign until August 10, 1978, after the highway was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within 30 days and without compensation to the sign owner(s). DONE and ORDERED this 16th day of September, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
The Issue Whether Respondent's sign violates Florida Law as alleged in the Administrative Complaint and, if so, what further action is required.
Findings Of Fact At all times material hereto, Respondent was the owner of an unpermitted sign erected within 25 feet of the intersection of Krome Avenue and State Road 997 in Dade County, Florida. State Road 997 is within the State Highway System and is a federally aided primary highway and the property on which the sign is located is zoned "GU Intrem," an agricultural zoning classification of Dade County, Florida. On March 21, 1989, the sign in question was posted with a violation sticker indicating that the sign was subject to removal by the Department after thirty days from the date of the posted notice. Also, a written violation notice dated March 21, 1989, was sent to Respondent. Prior to the hearing, the face of the sign was removed by Respondent and the structure supporting the sign was taken down by Petitioner. Respondent admitted that she did not have a permit for the sign and that one was required. The sign at issue did not qualify for a sign permit nor for any exemption from the requirement therefor. Further, the property on which the sign was located was in an ineligible zoning classification. The removal of Respondent's sign was appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing that the subject sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that the removal of the subject sign was proper. DONE and ENTERED this 7th day of August, 1989, in Tallahassee, Florida. JANE C. HAYMAN 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 7th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-2697T Petitioner's proposed findings of fact are addressed as follows: Addressed, in part, in paragraph 1. Addressed in paragraph 2; in part, subordinate to the result reached. Addressed in conclusions of law. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Rosa Thomas Thomas' Promises Farms 18990 S.W. 152nd Street Miami, Florida 33187 Mr. Kaye N. Henderson Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III Genera1 Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the sign against which the Department of Transportation issued Notice of Violation 10B ST 2001 502, violates Chapter 479, Florida Statutes, so that the sign must be removed.
Findings Of Fact 1. On January 30, 2001, DOT issued Notice of Violation 10B ST 2001 502, against a billboard sign located adjacent to Interstate 95 (I-95), 7.998 miles north of the Flagler County line in St. Johns County. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. 2. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95, and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. 3. The sign is a "permanent" one and has never been permitted by DOT. 4. Respondent Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name, pursuant to Section 607.0401, Florida Statutes. It will hereafter be referred to as "Exit 94, Inc." 5. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of Exit 94, Inc. Mr. Sullivan is also president and principal of approximately 35 other Florida corporations, including two outdoor advertising companies (sellers and lessors of billboards), named "Sunshine Outdoor" and "Interstate Billboards," and also of Café Erotica of Florida, Inc., d/b/a Café Erotica. Mr. Sullivan has decision-making authority over Exit 94, Inc., and the Café Erotica restaurant. He is knowledgeable about DOT sign permitting requirements. 6. Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. The Café Erotica restaurant is a 24-hour per day, full-service restaurant, accessible from exit number 94 of I-95. It also features dancers clad in bathing suits and sells adult toys. 7. Exit 94, Inc., does not, and never has, provided food, adult toys, or bare people at the subject location or anywhere else. 8. The parties' stipulation herein, incorporating photographs which are also in evidence, demonstrates that the sign which is the subject of this proceeding is a permanent billboard reading, "CAFE EROTICA," "WE DARE TO BARE," "GREAT FOOD," "ADULT TOYS," "EXIT 94, INC." This is not an exact statement of Respondent Exit 94, Inc.'s, authorized corporate name, due to the juxtaposition of the phrases, "Great Food" and "Adult Toys" and the sign's failure to include the slashes separating the phrases. The paint colors on the sign call the viewer's attention to the phrases, "CAFE’ EROTICA," "WE DARE TO BARE," "GREAT FOOD," "ADULT TOYS," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, and relatively inconspicuous. As of the date of hearing, the abbreviation "INC." had been painted a different color than it was at the time the violation notices were issued, but otherwise the sign is the same. 9. Affixed to the bottom portion of two of the five poles supporting the foregoing sign is a bright yellow placard which states, "FISH CAMP," with a telephone number. This placard is not nearly as large as the billboard facing and is less visible, but its message also can be seen from I-95. 10. Exit 94, Inc., owns the subject sign(s), but not the real property on which it is located, as more fully described below. 11. The subject sign is located on real property owned by Leo Giannini. Mr. Giannini's real property is not contiguous to real property owned by Exit 94, Inc. 12. Exit 94, Inc., does own eleven acres of non-contiguous real property located about eight miles distant from the subject billboard, near exit 94 of I-95, where Exit 94, Inc., is currently developing a fishing and hunting camp. See, Department of Transportation v. Café Erotica of Florida, Inc. d/b/a Café Erotica/We Dare to Bare/Adult Toys/ Great Food/Exit 94, Inc., DOAH Case No. 00-4188T, etc. 13. Mr. Giannini's subject property is located in the southeastern quadrant of the exit 93 intersection of SR-206 and I-95. At various times, he has rented all, or some part of, this property to Mr. Sullivan's outdoor advertising corporations, Sunshine Outdoor and Interstate Billboards, for the placement of trucks and/or billboards, and to Exit 94, Inc.? 14. Mr. Sullivan testified that he never intended to develop a hunting and fishing camp on Mr. Giannini's exit 93 southeastern quadrant property because it is completely dry, although he once intended to develop a pond on the northwestern quadrant of exit number 93, part of which quadrant is also owned by Mr. Giannini. 15. According to Mr. Sullivan's testimony, Exit 94, Inc., leases Mr. Giannini's subject property in the southeastern quadrant of exit 93, mainly for the advertising which Mr. Sullivan has painted on the window of the abandoned gas station located on the Giannini property, which advertising includes the large words, "Fish Camp," the smaller words, "Guided Tours," and the same phone number as is on the yellow placard affixed to the subject sign. According to Mr. Sullivan, this phone number is provided so that customers can call Exit 94, Inc., to schedule fishing tours to locations other than the camp owned by Exit 94, Inc., at exit 94, which as yet has no fish or pond suitable for fishing. 16. Mr. Giannini's southeastern quadrant property at exit 93, is made up of two contiguous parcels, which he purchased at different times. One parcel is 2.3 acres and contains the abandoned gas station made of concrete, with pumps (tanks removed), and some cracked and weed-encroached concrete parking areas around them. This parcel's entrance is on SR-206, 150 yards to the northeast of the subject sign, and its address is 955 West SR-206, St. Augustine, Florida. 17. The other contiguous parcel owned by Mr. Giannini is approximately 4.5 acres and contains the poles and unpermitted sign which is the subject of this proceeding. This parcel's entrance also is on SR-206, but it has a different entrance than the one for the abandoned gas station. This parcel also bears a different address on West SR-206 than the abandoned gas station. 18. Neither of Mr. Giannini's parcels bears the same address as Exit 94, Inc.'s, occupational/business license from St. Johns County, which is "985 SR-206 West, St. Augustine, Florida." Assuming Exit 94, Inc.'s, license should have read, "985 West SR-206," that still is not the same address as either of the parcels in Mr. Giannini's southeastern quadrant property, Exit 94, Inc., admittedly does no business out of any "985" address. 19. Although Mr. Sullivan testified that Exit 94, Inc., operates out of both the abandoned gas station location at exit 93 and the non-contiguous camp location north of exit 94, corporate records for Exit 94, Inc., indicate the corporation operates out of a physical location at 7605 Southeast Williston Rd., Gainesville, Florida 32608, with a business address of P.O. Box 1069, Micanopy, Florida, 32667. 20. Mr. Giannini signed the current lease with Exit 94, Inc., at the request of the general manager of the Café Erotica restaurant. He also signed the current Exit 94, Inc., lease at the physical location of the Café Erotica restaurant on April 13, 2000. 21. The Café Erotica restaurant currently advertises in the phone book, on its premises, and on a billboard at exit number 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Café Erotica no longer rents billboards in these locations.? 22. The advertisements for Café Erotica restaurant currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. 23. Mr. Giannini thought that in 1999, he had leased space in front of the abandoned gas station on his smaller parcel, to Exit 94, Inc., as a place to park Exit 94, Inc.'s, trucks, but Mr. Sullivan maintained that in 1999, Exit 94, Inc., had rented the space in front of the abandoned gas station on the smaller parcel and part of the larger parcel where Exit 94, Inc., had erected a billboard displaying exactly the same language as is on the current subject billboard. However, it is undisputed that poles which are now empty, but which abut the subject billboard, previously held a lighted billboard owned by Exit 94, Inc., which previous billboard carried exactly the same language as the sign which is the subject of these proceedings. 24. There currently is a dispute between Mr. Giannini and Exit 94, Inc., as to what portion of Mr. Giannini's two contiguous parcels at exit 93 is currently leased to Exit 94, Inc., under a new lease signed on April 13, 2000. Mr. Giannini contends that he leased only the western half of the concrete gas station to Exit 94, Inc., and gave Exit 94, Inc., no authority to construct the subject sign currently on the larger contiguous parcel. However, Exit 94, Inc., contends that it is currently leasing the western half of the concrete gas station, plus a part or "strip" of Mr. Giannini's parcel upon which the subject sign is located. This dispute is currently the exclusive jurisdiction of the circuit court due to Exit 94, Inc.'s filing of a lawsuit claiming Mr. Giannini has denied the corporation access to the leased property. For that reason, and because the testimony herein of the lessor and lessee does not even agree on which real property descriptions were, or should have been, attached to the lease in evidence (P-7 and R-2), the issue cannot be resolved in this forum. 25. Exit 94, Inc., does not intend to, has not, and cannot, provide fishing on the dry parcel(s) at issue. Exit 94, Inc., has taken steps to provide fishing in the future on its own non-contiguous real property, eight miles away, designated as its "hunting and fishing camp," but to date, the pond there is only being filled and is not stocked with fish. 26. The abandoned gas station building on the subject property is only about 25 by 60 feet. It remains locked at all times. Whether one believes Mr. Sullivan that he recently has been locked out by Mr. Giannini or simply believes his testimony that he kept the building locked himself most of the time, it is clear that the inside of the building has seldom, if ever, been used by Exit 94, Inc., except for the placement of a desk and telephone. This finding is supported by the photographs of most of the interior, showing trash, dust, and a single desk pushed into a corner. It is undisputed that Exit 94, Inc., employees have never regularly manned the "office" at this location. 27. There are no public phones or functioning public rest rooms on the property. 28. Mr. Sullivan testified that the phone number he had painted on the window of the abandoned gas station does not ring 10 at that location. Instead, it rings in his truck. If he is out of town, he "sometimes" has an employee or his wife check truck phone's messages.* One can only conclude that Exit 94, Inc.'s, "business" at the subject property is not full-time, important, or primary. 29. The concrete paving surrounding the abandoned gas station on the subject property is breaking up. It has tufts of grass and brush growing out of its cracks. There is general trash and old tires in the area. The concrete paving presents a danger to most motor vehicles which might enter and cannot be reasonably considered "handicapped parking or access" as suggested by Mr. Sullivan. At the present time, stone barriers bar the entrance to the abandoned gas station parcel or at least impede access by most motor vehicles trying to enter this parcel. The greater weight of the credible evidence shows these barriers may be susceptible of being moved temporarily but that they have been in a position blocking that entrance almost continuously since 1994. 30. Exit 94, Inc., has paid $1500 per month in rent to Mr. Giannini each month since June (not April) 2000. Mr. Sullivan admits that, regardless of which business entity rented all or part of Mr. Giannini's property at any given time, the grass has only been mowed twice in two years. Apparently, only the grass around the subject sign was mowed. 11 31. No Exit 94, Inc., inventory is stored on the subject property. If there once were fishing rods and equipment stored in the abandoned gas station which have recently been stolen, as contended by Mr. Sullivan, these items still were not integral to Exit 94, Inc.'s, business, because there is no evidence they were ever rented or loaned to customers. Mr. Sullivan only testified that these items were stored for use by customers for Exit 94, Inc.'s, fishing tours to locations not owned by Exit 94, Inc. 32. Mr. Giannini uses the eastern end of the abandoned gas station building to store items for his own several corporations. He goes by the location almost daily and sometimes at night. He pays the electricity charges for the whole building so that he can use the premises at night. The electric bill has been in his name as long as he has owned the parcel containing the abandoned gas station. Since signing the April 13, 2000, lease with Exit 94, Inc., he has seen no signs of activity by Exit, 94, Inc., on either parcel. 33. Tom Simmons, DOT sign inspector, inspected the subject location for DOT on several occasions over the 18-19 months prior to issuing the notice of violation herein on January 30, 2001. During this period of time, he afforded the benefit of the doubt that some commercial venture was in development at the site and that any advertising on the premises therefore would 12 constitute an on-premises sign, exempt from DOT permitting and subject to regulation only by St. Johns County. 34. Mr. Simmons became aware of the subject sign when it was under construction about September 8, 2000. At that time, he assumed that the premises would become operational for Exit 94, Inc., because he understood that Exit 94, Inc., had applied for a St. Johns County building permit involving electrical and plumbing connections at that location. However, he inspected the subject location on September 8, 2000, January 3, 2001, January 23, 2001, and January 30, 2001, and never saw any business activity or productive enterprise. 35. James L. Acosta is the Supervisor of Code Enforcement for St. Johns County. He inspected the subject property in September 2000, November 2000, January 2001, and on April 4, 2001. At no time has he observed any business activity or productive enterprise on the property. He has recently issued a violation citation to Mr. Giannini, as the owner of the real property, requiring him to remove the subject sign. 36. St. Johns County has never issued a building permit for the subject sign. 37. Testimony and business records of charges by, and payments to, Exit 94, Inc., demonstrate only that other business entities controlled by Mr. Sullivan or his family members have paid for some use of the real property owned by Exit 94, Inc., 13 and designated as its "hunting and fishing camp," which property is not contiguous to the subject property. (See Finding of Fact 12.) It was not proven that any fishing tours embarked from the subject property to the owned property or to any other location. There was no affirmative evidence of where the other alleged fishing locations might be. The business records bore the Micanopy address of the corporation. (See Finding of Fact 19.) It was not demonstrated that the business records were stored at the subject property. 38. There is no evidence that any member of the general public has utilized Exit 94, Inc.'s, hunting and fishing services, and due to the relationship of Exit 94, Inc.'s, recorded "customers" to Mr. Sullivan and his various corporations, it may be inferred that none of these "customers" were procured, lured, enticed, or secured by the advertising or his telephone number on the window of the abandoned gas station or on the subject sign. 39. Exit 94, Inc., currently operates at a loss, made up as necessary by personal loans from Mr. Sullivan. 40. Exit 94, Inc.'s business records suggest that its only expenditures at the subject location have been for rent and construction of the subject sign and that all its other expenditures have been for its trucks and its owned real property located at exit 94. There was no affirmative 14 demonstration that any other expenditures were specifically linked to the subject location. 41. Exit 94, Inc., failed to demonstrate what the minimal level of meaningful activity customary for a hunting and fishing corporation might be, and further failed to demonstrate that a minimal level of activity had occurred at the subject location. 42. Exit 94, Inc., attempted, through two examples, to show that Mr. Simmons's original determination not to cite the subject sign and DOT's determination not to cite certain other signs in the vicinity constituted a custom and usage of the agency, which custom and usage, if applied in this case, would cause the subject sign to be considered an on-premises sign. "Bulls Chip" signs on Bulls Chip trucks and farm equipment parked on real property owned and contiguous to the Bulls Chip factory, were not charged with sign violations because DOT viewed these as on-premises signs. A "Smiley's" truck parked in a flea market parking lot where the truck owner owned and/or leased space to sell specific items under the name on the truck was originally considered an "on-premises" sign by DOT personnel and not cited. When it was determined that the truck owner no longer had business activity or ownership rights at the site, the "Smiley's" truck was cited. These examples are clearly distinguishable from the instant situation. 15
Conclusions That the Department of Transportation enter its final order declaring illegal the subject unpermitted sign owned and maintained by Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., and ordering removal of the sign in accordance with a reasonable time frame to be determined by the Department. 23 A DONE AND ENTERED this ce day of July, 2001, in Tallahassee, Leon County, Florida. Gilhel deun ELLA ‘JANE P. DAVIS 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 Lafy day of July, 2001.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether subject sign required current permits and whether said signs were in an "unsightly condition".
Findings Of Fact Previous to the date of this Recommended Order subject signs were properly permitted and refurbished to remove them from the "unsightly" violation category.
