The Issue Whether the signs referred to in Violation Notice Number 1-17-104 and 1-17- 105 dated February 5, 1991 are exempt from the permitting requirements of Chapter 479, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, the Respondent owned Lots 2 and 6 of Block H, Corrected Plat of Bay Point located in an unincorporated area of Sarasota County, Florida. Lots 2 and 6 are immediately east of, and adjacent to, Lots 1 and 7 of Block H, Corrected Plat of Bay Point. Lots 2 and 6 are also located north of Magnolia Avenue and South of Palmetto Road. Lots 1 and 7 are located immediately east of, and adjacent to, U.S. Highway 41 and north of Magnolia Avenue and south of Palmetto Road. Respondent owns and maintains apartments on Lots 2 and 6 which he offers for rent. At all times material to these proceedings, Respondent owned and maintained two "Apartment for Rent" signs which were located on Lots 1 and 7. These signs advertised that the Respondent's apartments located on Lots 2 and 6 were for rent. Respondent has never owned or held an interest in Lots 1 and 7, and there was no evidence that Respondent retained a property right in Lots 1 and 7 to maintain the "Apartment for Rent" signs on the premises of Lots 1 and 7. Presently there is a small shopping mall located on Lots 1 and 7. The Respondent does not own or have any interest in this shopping mall, or have any type of establishment located on the premises of Lots 1 and 7. The signs in question advertise the Respondent's apartments located on Lots 2 and 6 exclusively, and do not advertise any product which can be obtained in the mall. The signs in question are not permitted by the Department and the Respondent has not applied to the Department for a permit. The signs in question come within the definition of sign as defined in Section 479.01(14), Florida Statutes, and are visible signs as the term "visible sign" is defined in Section 479.01(23), Florida Statutes. The signs in question were not located on the Respondent's premises as the term premises is defined in Section 479.01(13), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a Final Order finding that the Notice Violation Numbers 1-17-104 and 1-17-105 were properly issued and that the Respondent shall have thirty days from the date of the Final Order to comply with the requirement of Notice Violation Numbers 1-17-104 and 1-17-105 by removing the signs or be subject to the cost of removal by the Department. DONE and ENTERED this 3rd day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 3rd day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Department in this case. Adopted in substance as modified in Findings of Fact 1, 2, and 3. - 4. Adopted in substance as modified in Findings of Fact 7, 4 and 5, respectively. The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Jay O. Barber, Esquire Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32301 Fred Overmyer, pro se 245 Sovrano Road Venice, FL 34285 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S. 58 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact The sign in issue is owned by the Petitioner, is in existence and is located as shown on Exhibits 1 and 2 along SR 580, 100 feet north of Nebraska Avenue. The sign is located within the city limits of Tampa and is outside the DOT right of way. There is only one face on this sign which faces southwest and can be seen by eastbound traffic on Busch Boulevard (SR 580). SR 580 is a noncontrolled highway and the spacing requirements are not applicable to signs along Busch Boulevard which are otherwise not controlled. Nebraska Avenue (U.S. 41) is a federal-aide primary highway. A sign was originally erected in the same location as the existing sign in 1979 and remained until 1987 when the property on which the sign was erected changed hands. The new owners requested the sign be dismantled and re-erected on property being developed. This was done and the sign was re-erected in 1988 on its original location and of the same size as the original sign. The original sign was exempt from the spacing requirements by virtue of its grandfather status as a nonconforming sign. The sign can readily be seen by motorists traveling north on U.S. 41 (Exhibits 8-10). When the sign was rebuilt it lost its grandfather status and a new sign permit is required. Petitioner presented the only witness who testified that the angle of the sign is intended to give maximum visibility on Busch Boulevard and that the exposure time to a motorist is substantially longer on Busch Boulevard than on Nebraska Avenue. However, the exhibits submitted into evidence show the sign to be at an approximate 45 degree angle to both Busch Boulevard and Nebraska Avenue, that the sign is seen to the left side of a vehicle traveling east on Busch Boulevard and to the right side of a vehicle traveling north on Nebraska Avenue, and that there are more obstructions to the sign's visibility from Busch Boulevard than from Nebraska Avenue. This latter factor would indicate the sign's exposure time from Nebraska Avenue is at least equal to the sign's exposure time from a vehicle traveling along Busch Boulevard.
The Issue Whether subject sign violates the set-back requirements and whether said signs are properly permitted.
Findings Of Fact Sign violates the sat-back requirement of Chapter 479. Sign has no current permit.
Findings Of Fact Respondent, Henderson Sign Service, erected and owns a sign located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida. The sign is visible from the main traveled portion of Interstate Highway 10. At the time of the filing of the petition in this cause, and as recently as October 2, 1978, no permit tag was affixed to the sign structure. In addition, the sign structure is located 123 1/2 feet from the white line on the highway at the outside edge of the eastbound lane. At all times material to this proceeding the sign in question bore advertising copy which read "Plantation House, pool, bus tour, restaurant, Quality Inn". Respondent had not applied to DOT for the issuance of a permit for the sign in question as of the date of the hearing in this cause. Any proposed finding of fact submitted by the Respondent and not incorporated in this Recommended Order was either rejected or deemed irrelevant.
Findings Of Fact Respondent is the owner of a sign located alongside U.S. 19, .72 miles north of SR 60 in Pinellas County facing south bound traffic on U.S. 19. When inspected on April 13, 1987, this sign advertised a product not associated with the premises on which the sign is located. However, subsequent thereto the board on the sign has been changed to advertise office warehouses and is now an integral part of the activities taking place on the premises. As such, the sign qualifies as an on-premise sign.
Findings Of Fact Objections to time involved in the Notice of Hearing was wavied by the parties. The parties were present. Respondent admitted that he had erected a sign near State Road 71, 1 8/10 miles south of the Calhoun County county line, with copy: Cypress Lodge - Fish Camp - Motel, a double faced sign. He admitted that he had no permits for 1974, 1975 nor for the current year. Respondent admitted that he had made no application to the Petitioner, Florida Department of Transportation, before employing a man to erect the sign. Respondent had no written lease agreement with the owners of the property upon which the sign is erected. The Petitioner claims a 33 foot right of way by maintenance and there is no controversy as to whether the State actually owns the 33 foot right of way it claims by maintenance although the State has no deed for said right of way. The subject sign is 12 feet from the nearest edge of the 33 foot right of way claimed by the State. Said 12 feet is 3 feet less than the required 15 feet from the nearest edge of the right of way of State Road 71.
Conclusions RECOMMENDATION: Inasmuch as the violation is the difference between 12 feet and 15 feet and the reerection of subject signs would destroy a wooded area; and the secondary road is now cluttered with nonconforming signs'. and it is the testimony of the owner that he intends to remove and redo the subject signs eventually but not this year; it is recommended that a permit be issued for subject signs upon payment of permit fees for the past years and upon a date certain after 1976 for removal of subject signs. The Department adopts the Findings of Fact and the Conclusions of Law of the Hearing Officer, but is unable to accept her Recommendation that the sign be permitted to remain in place. Once the determination is made that the subject sign violates the setback requirements of Chapter 479, Florida Statutes, it becomes the duty of the Department to follow the provisions of the law and order the Sign removed. IT IS ORDERED, therefore, that the subject sign be removed thirty-five (35) days from the date of mailing a copy of this Order to Respondent, provided no petition for review of this Order has been filed with a court of competent jurisdiction, in which event thus Order will be stayed. IT IS ORDERED this 18th day of January, 1977. TOM WEBB, JR. SECRETARY STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA Copies furnished: Philip S. Bennett, Attorney Office of Legal Operations Department of Transportation Haydon Burns Building John W. Scruggs, Attorney District III Office Department of Transportation Chipley, Florida Delphene C. Strickland, Hearing Officer Division of Administrative Hearings Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 John C. Dill Route 3, Box 172 Wewahitchka, Florida 32465 Mr. O. E. Black, Administrator Outdoor Advertising Section Right of Way Bureau Department of Transportation Tallahassee, Florida
Recommendation Inasmuch as the violation is the difference between 12 feet and 15 feet and the reerection of subject signs would destroy a wooded area; and the secondary road is now cluttered with nonconforming signs; and it is the testimony of the owner that he intends to remove and redo the subject signs eventually but not this year; it is recommended that a permit be issued for subject signs upon payment of permit fees for the past years and upon a date certain after 1976 for removal of subject signs. DONE and ORDERED this 13th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Scruggs, Jr., Esquire Philip S. Bennett, Esquire Staff Attorney Office of Legal Operations Department of Transportation Department of Transportation Chipley, Florida Haydon Burns Building Tallahassee, Florida 32304 John C. Dill, Respondent Route 3, Box 172 Mr. J.E. Jordan Wewahitchka, Florida 32465 District Sign Coordinator Department of Transportation Post Office Box 607, US Highway 90 Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: DEPARTMENT OF TRANSPORTATION, NOT FINAL UNTIL TIME EXPIRES TO FILE FOR JUDICIAL REVIEW Petitioner, AND DISPOSITION THEREOF IF FILED vs. CASE NO. 75-1936T JOHN AND JUANITA DILL, Respondent. /
The Issue Whether subject signs were properly permitted and which subject sign on Hacienda Drive was also unsightly and not permitted.
Findings Of Fact Subject signs were not properly permitted and subject sign on Hacienda Drive was also unsightly.
Findings Of Fact Respondent has three signs on SR 60 located (1) 20.2 miles west of Osceola County line, (2) 5.27 miles east of US 27 and (3) 6.18 miles east of US 27, respectively. SR 60 is a federal-aid primary highway and the signs were inspected by Petitioner's agent on April 6, 1978. The inspection revealed that permits had been issued for none of these signs. Additionally, the sign first noted above is in an area not zoned commercial or industrial. With respect to the second sign above noted the exact location of the sign by legal description is needed to ascertain if the sign is located in an area zoned commercial. The third sign above noted, in addition to never having been permitted, is located in the right-of-way of SR 8() and is not in an area zoned commercial.
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.
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
