The Issue The issue in this case is whether the sign erected by J.C. Tropical Foods, Inc., (Respondent) on land it leased for this purpose along State Road 997 in Dade County, Florida, was in violation of state law and, if so, whether the removal of said sign was required.
Findings Of Fact The Respondent leased a parcel of land along State Road 997 in Dade County, Florida, for the purpose of erecting a sign to direct truckers to its packing house. The Respondent owns certain real property on which its packing house is located, but that property is approximately 1320 feet from State Road 997, and 1200 feet from the leased parcel. If a sign were erected on the property owned by the Respondent, it could not be seen from State Road 997. After leasing the subject parcel, the Respondent proceeded to erect its 4 foot by 6 foot sign at a height of 45 feet. The sign was located approximately 18 feet from the State Road 997 right-of-way, and was visible from State Road 997. The sign was inspected by the Petitioner's outdoor advertising inspector and found to have no state sign permit attached to it. A notice of violation was, therefore, affixed to the sign on behalf of the Petitioner on or about May 30, 1990, and thereafter the sign was removed. State Road 997 in Dade County, Florida, has been designated a federal- aid primary road. The Respondent's sign was located on a leased parcel that was zoned AU, Agricultural District. The sign was not located on the business premises of the sign owner. A timely demand for formal hearing was filed on behalf of the Respondent following its receipt of the notice of violation, resulting in this formal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order which finds that the permit required by law was not issued for the Respondent's sign, that the sign was in a location that is ineligible for permitting because of its zoning, and which confirms the removal of the subject sign. RECOMMENDED this 1st day of October, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3897T Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 2. Adopted in Finding 4. Adopted in Findings 1, 2 and 5. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 5. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Julian L. Mesa, Secretary J.C. Tropical Foods, Inc. 2937 S.W. 27th Avenue, #305 Miami, FL 33133 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statute 479.11(1), sign erected without a state permit. Whether subject sign is a new and different sign inasmuch as it has new facings, is erected on new poles and is materially elevated from the location of the previous sign. Whether subject sign is in violation of federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued the Respondent, Peterson Outdoor Advertising Corporation, notice of alleged violation of Chapter 479, F.S., on October 27, 1975 with respect to the following sign: Highway: S.R. 8 (I-95) Location: Junction I-95 and U.S. 17 Copy: 76 Truck Stop Pursuant to this notice the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. This request was made by John T. Graczol, vice president of leasing, by letter dated November 6, 1975. Respondent is the owner of the sign referred to in paragraph 1 of these findings. A sign with similar copy was erected by the Respondent prior to 1970 at the approximate location of subject sign. The Respondent owned and maintained the sign from time of erection up until January of 1975 when such sign was removed and the subject sign built. Subject sign is erected in a nonconforming area both in zoning and on a ramp outside of the city limits on an interstate highway. It is nearer than 660 feet from the nearest edge of the right of way of an interstate highway system in an open rural zoning area and can be read by persons traveling on the interstate highway system. The sign that was removed was in the approximate location with similar copy but with an elevation of under 10 feet. Subject sign is a replacement sign in the approximate location as the replaced sign with the same type of copy. The replacement sign is on different poles and at a more elevated height (from under 10 feet to over 16 feet) than the replaced sign. The replacement subject sign is much more visible to the traveling public than the old sign because of the materially increased elevation. No part of the old sign is standing and the replaced sign has been removed The Petitioner testified that the value of the sign increased by $484.00 and it is the finding of the Hearing Officer that the replacement sign is of more monetary value than the replaced sign. The new facing materials, the replacement of poles and the decided increase in elevation, make subject sign a different sign within the meaning of Chapter 479, F.S. and the federal regulations, thus, becoming a new sign requiring a permit rather than qualifying as nonconforming with the customary maintenance or repair of existing signs allowed under Section 479.01(12), F.S., infra. The owner of the sign was given written notice of the alleged violation and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject sign if said sign has not been received by the owner within ten (10) days after entry of the final order herein. DONE and ENTERED this 30th day of June, 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: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire P. O. Box 539 Winter Park, Florida Mr. O. E. Black Administrator Outdoor Advertising Section Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. F. S. Whitesell District Sign Coordinator South Marion Street Lake City, Florida 32055
Findings Of Fact The sign which is the subject of this proceeding is an outdoor advertising structure owned by the Respondent. It was erected on October 28, 1982, and is located on the south side of Douglas Road, 132 feet east of the edge of U.S. 1, in the City of Miami, Florida. The Respondent's sign is situated so as to be read by eastbound traffic on Douglas Road. Douglas Road is an uncontrolled road, in that it is not a Federal-Aid Primary Highway. The Respondent's sign also faces so as to be visible to traffic travelling south on U.S. 1, and it can be read by this traffic. The subject sign is 51 feet from another sign located on the east side of U.S. 1, facing so as to be read by traffic travelling south on U.S. 1, which is permitted by the Department of Transportation. The subject sign is also 403 feet from another permitted sign located further south on the east side of U.S. 1, and facing so as to be visible to traffic travelling south on U.S. 1. U.S. 1, is a Federal-Aid Primary Highway throughout Dade County, and it was open to the public when the Respondent's sign was erected. The Respondent's sign does not have an outdoor advertising permit.
Recommendation From the foregoing Findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its order requiring the removal of the sign of Empire Outdoor Advertising, Inc., located on the south side of Douglas Road, 132 feet east of U.S. 1, in Miami, Florida. THIS RECOMMENDED ORDER entered on this 15 day of August, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32312-8064 L. Martin Reeder, Jr., Esquire Post Office Box 2637 Palm Beach, Florida 33480 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Jack M. Wainwright d/b/a Dee-Tara Advertising has met the requirements of Section 479.111(2), and is eligible for a permit for outdoor advertising structures from the Florida Department of Transportation. (a) Whether there is effective control of outdoor advertising structures by any local authority in Leon County as required by Title 23, Section 131, United States Code, the implementing federal regulations and the contract entered into between the Governor and the Administrator of the Federal Highway Administration on January 27, 1972, promulgated pursuant to Section 479.02, Florida Statutes. Whether the subject parcel of land can be zoned by the Leon County Commission so that outdoor advertising structures can be permitted by the Florida Department of Transportation and erected within 660 feet of an interstate highway.
Findings Of Fact Respondent, Jack M. Wainwright conditionally leased 1.16 acres of land, approximately 113.88 feet on the south right-of-way line of Interstate 10 in Leon County, Florida. The effectiveness of the lease was on the condition that the land be rezoned by the Leon County Board of County Commissioners. If the parcel were so rezoned the lessee promised to pay the lessor $250.00 per year for each side of a billboard to be erected on the parcel and further, the lessee would pay to the lessor any increase in taxes attributable to rezoning. The leasing and application for rezoning was primarily for the purpose of placing outdoor advertising on the property to be rezoned along the interstate highway. The lessor owns a small automotive facility which he had been operating for years on his agricultural-zoned five (5) acres. The rezoning encompassed the portion of his acreage farthest from the highway. He hopes to gain more business from the rezoning effort although there is no access to Interstate-l0 less than a mile from his property. The leased land surrounded by land zoned agriculture-2 as is the remainder of the lessor's acreage. The closest business by way of the Interstate is a truck stop about a mile west of the property on State Road 59 near an interchange on 1-10. The interstate is mostly through agricultural lands in this area as well as through most of Leon County, Florida. The application for rezoning was denied upon the first application to the Leon County Board of County Commissioners. Upon second application to the Board the property was rezoned from "agriculture-2" to "rural-commercial" by ordinance 77-26. Neither the rezoning application or ordinance mentions outdoor advertising. After the rezoning of subject land in July, 1977, Respondent applied to Petitioner, Florida Department of Transportation for a permit to erect two outdoor advertising signs on the subject property to be not less than 15 feet but within 660 feet of the right-of-way of Interstate-10. The authority for his claim that billboards could be permitted on the rezoned property was derived from the 3.977 rezoning ordinance together with a 1972 and a 1973 ordinance, infra. Leon County Ordinance 72-114, dated November 21, 1972 allows, inter alia, outdoor advertising signs in designated districts as follows: "1. CT Commercial Tourist District CR Commercial Rural District C-2 General Commercial C-4 Automobile Commercial M-2 General Industrial" There is no "Rural-Commercial" designation as subject property was rezoned by ordinance 77-26 and there are no definitions in the billboard ordinance to describe what type of development was intended to be allowed in such districts. A portion of a 1973 ordinance entitled "Section 6.19 CR Rural Commercial District" states in the "District Intent": "The provisions of the CR district are intended to apply to rural areas with direct access to a major street or roadway located within convenient travelling distance to rural residential and agricultural areas, wherein small groups of commercial establishments, cultural and institutional activities and certain uses for processing or selling agricultural products are permitted. A large variety of commercial activities are permitted in recognition of the rural character and long travel distances from rural areas to urban commercial centers." The Zoning Director for the City of Tallahassee and County of Leon stated that a "commercial-rural" district is a broad commercial classification and is more closely associated with the Leon County Commercial Zone C-4, an Automotive-Commercial zoning of the most intensive of all units located along major thoroughfares in the urban areas. The Petitioner through its state administrator for outdoor advertising, disapproved and returned the application to Respondent stating, "it is felt that the rezoning classification does not meet the requirements imposed by State and Federal regulations for permitting of a sign" it cited various state and federal laws and warned that the lack of "effective control" of outdoor advertising signs, displays and devices subject any state to the loss of 10 percent of the amounts which would be otherwise apportioned to such state under Section 104 of Title 23, United States Code, until such time as such state shall provide "effective control". Respondent applied for an administrative hearing. Pursuant to its powers and duties under Section 125.01(g), the Board of County Commissioners adopted a comprehensive plan known as the "Interim Land Use Plan" in 1971, to be effective until 1995. The comprehensive master plan is basically a map of Leon County but it is also a plan or guideline of goals and policies adopted by the Board of County Commissioners. There is a separate planning commission in Leon County whose duties include public hearings and making recommendations as to land use to the Board of County Commissioners. The Planning Commission recommended to the Board that the 200 feet from the southern boundary of Interstate-10, a part of the subject property, remain agriculture-2 so that outdoor advertising in the area along the interstate would be discouraged. Concern was indicated by the Planning Commission in its April 7, 1977 meeting that if the subject property were rezoned to rural-commercial that the planning commission might be asked to create spot commercial zones along the interstate to accommodate billboards. The Comprehensive Land Use Plan itself was not modified by the subject rezoning and the area remains agriculture-2 on the plan. The Board of County Commissioners itself has the authority to amend the plan but an amendment to the Comprehensive Plan requires a separate and different procedure than the procedure used to rezone property as was done in the subject rezoning. The Hearing Officer further finds: The Leon County Board of County Commissioners followed correct legal procedures in rezoning the subject parcel of land to "rural-commercial". The Respondent has a county permit for the construction of his proposed signs. The Board denied the rezoning of the property in 1974 but granted rezoning on July 12, 1977. The billboard ordinance of 1972 was considered by the Board at the time thee area was rezoned. The rezoning of the area is in fact "spot zoning" or "strip zoning". Respondent contends: That the only authority permitted to zone subject property is the Board of County Commissioners and once zoning is completed by the county it is final state action; That the Board followed the proper procedures when it rezoned the subject property; That once the property was rezoned "commercial" the previously existing ordinance allowing billboards in commercial zones could be used to permit billboards in that area; That "spot zoning" or "strip zoning" is within the discretion of the Board of County Commissioners; That the zoning of property by the Board of County Commissioners renders inapplicable the Highway Beautification Act of 1965, as amended as well as the State's control of outdoor advertising including the Governor's contract with the Federal Highway Administrator; That the Highway Beautification Act and Chapter 479, Florida Statutes, Outdoor Advertisers, allows billboards on any property zoned "Commercial" including lands along interstate and federal aid highways. Petitioner contends: That the Leon County Board of County Commissioners has authority to zone lands in Leon County but the subject zoning is "spot zoning" which is universally condemned and the acre plus of land was rezoned from agriculture in the midst of agriculture zoned land for the primary purpose of erecting billboards on the interstate highway. That the rezoning for the purpose of erecting outdoor advertising by the Board of County Commissioners was a usurpation of state government authority under Chapter 479, Florida Statutes. That the rezoning ordinance of 1977, no. 77-26, is silent on the subject of outdoor advertising and the "rural-commercial" zoning of the ordinance only allows "limited commercial or industrial activities. . . and is not considered to be commercial for outdoor advertising control. That the outdoor advertising ordinance of 1972, which allows billboards in "commercial-rural" is inapplicable to the subject rezoned land because it lies in an area zoned agriculture for at least one mile in any direction. That neither ordinance 72-114 or any comprehensive zoning plan has been submitted to or accepted by the Federal Highway Administrator as " effective control" of outdoor advertising as required by federal law and the Contract of the Governor and the Federal Highway Administrator dated January 27, 1972. The main contention of the Respondent is that the Board of County Commissioners has the authority to regulate outdoor advertising through its zoning powers under Chapter 125, County Government. The main contention of the Petitioner is that the State Department of Transportation is required to regulate the outdoor advertising under Chapter 479, Outdoor Advertisers.
Recommendation Deny the application for permit to erect outdoor advertising on subject rezoned property. DONE AND ENTERED this 16th day 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 W. Kirk Brown, Esquire Post Office Box 4075 Tallahassee, Florida 32304
Findings Of Fact The Steakery and the Sugarloaf Leisure Club are businesses in Summerland Key, Monroe County, Florida, that are owned by William A. Hare. For the past four years, Mr. Hare has, on behalf of his respective businesses, leased two outdoor advertising signs that are located on the same support structure with one sign being directly above the other. On one sign there appears an advertisement for The Steakery while on the other there appears an advertisement for the Sugarloaf Leisure Club. These two signs face are located in Monroe County, Florida, on the northbound side of U.S. 1, a federal-aid primary highway. The support structure for the signs is approximately 10 feet from the highway. No permit has been issued by the Florida Department of Transportation (DOT) for either sign. The signs are located in a part of Monroe County which is zoned "Native Area". This area is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The signs are not located on the business premises of the sign owner. The signs were inspected by the DOT's Outdoor Advertising Inspector and found to have no state sign permits attached them. On October 5, 1989, DOT caused to be filed against the two signs notices that neither sign had the permit required by law and that the zoning for the location of the signs did not permit outdoor advertising signs. Respondents have not contested the method by which the notices were posted. Mr. Hare, on behalf of his businesses, filed a timely demand for formal hearing following his receipt of the notices 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 which finds that permits required by law have not been issued for the subject signs, that the signs are in a location that is ineligible for permitting because of its zoning, and which orders the immediate removal of the subject signs. DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 f Administrative Hearings this 15th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASES 89-6103T AND 89-61O4T The following rulings are made on the proposed findings of fact submitted on behalf of the Department of Transportation: 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 3 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 6 of the Recommended Order. 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. 5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 5 of the Recommended Order. COPIES FURNISHED: Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mr. William Hare Owner, The Steakery Owner, Sugarloaf Leisure Club Post Office Box 723 Summerland Key, Florida 33042 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Bulding 605 Suwannee Street Tallahassee, Florida 32399-0458
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 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
The Issue The issue is whether a billboard structure is in compliance with Chapter 479, Florida Statutes.
Findings Of Fact The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the nearest edge of the State Highway System, interstate, or Federal-Aid Primary system in accordance with Chapter 479, Florida Statutes. Lamar is in the business of providing outdoor signs for entities wishing to advertise. Lamar owns the sign at the northeast corner of the intersection of Betton Road and Thomasville Road in Tallahassee, Leon County, Florida. The sign was built in 1980 and rebuilt in June 1997. The sign has two sides. One side faces Betton Road, and is visible only to persons on Betton Road. The Department does not assert that a permit is required for that side. The other side of the sign, facing to the west, is within 660 feet of Thomasville Road, which is also referred to as State Route 61, and is visible from Thomasville Road. In 1974, State Route 61 was known as U. S. Highway 319. It was a Federal-Aid Primary route. On June 24, 1974, a road denominated Capital Circle located on the outskirts of Tallahassee, was designated U.S. Highway 319. Thomasville Road although no longer a part of U.S. Highway 319, continued to bear the name State Route 61 and remained a Federal-Aid Primary route. In 1983 the Federal Highway Administration listed both Capital Circle and State Route 61 as Federal-Aid Primary routes. In 1991, the Federal Highway Administration created the National Highway System and ceased using Federal-Aid Primary designations. State Route 61, also known as Thomasville Road, nevertheless remained a Federal-Aid Primary road for outdoor advertising classification purposes at all times pertinent to this case. For federal highway identification purposes, the road is currently in the Surface Transportation Program. Prior to May 23, 1996, Lamar held an outdoor advertising permit pursuant to Section 479.07, Florida Statutes, for this sign. The sign was assigned tag number BG 518-35. On May 23, 1996, the Department issued a "Notice of Violation--Signs for Which Permits Have Been Issued," addressing permit number BG 518-35. This notice indicates that it was sent to Lamar via registered mail, return receipt requested. It informed that the sign was in violation of Chapter 479, Florida Statutes, or Florida Administrative Code Chapter 14-10 because the sign: "May not be maintained without permission of the person lawfully controlling site (479.11(9), FS)." On July 31, 1996, in a letter signed by District Outdoor Advertising Manager Vicki L. Davis, the Department notified Lamar that, because the Department had received a statement of loss of landowner's permission for the sign bearing tag number BG 518-35, Lamar was required to remove the sign. The Department included a "certificate of cancellation" with the letter. Lamar admits that it voluntarily canceled its permit for the sign in August 1997. Subsequently, the sign remained with its permit tag attached, unmolested by the Department for approximately 11 years. In January 1997, Lamar acquired a separate monopole structure bearing two signs with tag numbers BN 504 and BN 505. These signs are less than 200 feet to the north of the subject sign. During a 2007 inspection, an agent for the Department observed the subject sign. It still bore tag number BG 518-35. On March 14, 2007, the Department issued the "Notice of Violation-Illegally Erected Sign" addressed above. As noted before, the violation was based on the sign's having no permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the sign is a public or private nuisance and requiring that it be removed as provided in Subsection 479.105(1)(a), Florida Statutes, and dismissing case number 08-1137. DONE AND ENTERED this 16th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of July, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Susan Schwartz, 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, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Union Street at its intersection with Jefferson Avenue in Jacksonville, Florida, is also known as US 23 and is a federal-aid primary highway. It is a one-way street for east-bound traffic and is located within the corporate limits of Jacksonville. The proposed sign would be located on the north side of Union Street 20 feet west of the intersection with Jefferson Street and would face west to be viewed by the eastbound traffic on Union Street. Zoning at the proposed location is commercial/industrial. Criterion Advertising Company has been issued permits for two signs near the intersection of Union Street and Jefferson Avenue (Exhibits 5 and 6). These signs are on the south side of a building on the northeast corner of this intersection, thus making them parallel to Union Street 14 feet and 20 feet respectively east of the Jefferson Avenue pavement. Jefferson Avenue is not a federal-aid primary highway. In their inventory the Department of Transportation (DOT) carries the Criterion signs as facing westerly because they can be seen by the eastbound traffic on US 23. There are only four blocks on an application for a sign permit in which to mark the direction in which the sign faces. These are the four cardinal points of the compass. Highways in Florida, as well as the streets in most cities in Florida, run generally in a north/south or east/west direction. Signs alongside a federal-aid primary highway that are intended to be seen by northbound traffic are carried in DOT inventory as southerly facing signs whether they actually face in a southerly compass direction or not. Advertising signs, the face of which are parallel to the highway from which they are viewed, are not as saleable as are signs at right angles, or nearly so, to the highway.
Findings Of Fact The Respondent, Bill Salter Outdoor Advertising, Inc., was issued permits numbered AI625-10 and AI626-10 on or about February 15, 1983. These permits were for the erection of signs on the north side of I-10, approximately .65 mile west of SR 297, in Escambia County, Florida. They were issued because of the proximity of a welding business noted on a sketch attached to the applications submitted by the Respondent. The Respondent submitted the applications and the attached sketch for these permits, and designated on the applications that the sign location would be in an unzoned area within 800 feet of a business. The sketch shows what is designated as a welding business to be within 800 feet of the proposed sign location. On each of these applications the Respondent certified that the signs 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 was believed to be a welding shop nearby the proposed sign location. This inspector was looking for a welding shop because one was indicated to be there by the sketch attached to the applications. What she saw was some welding being done on the property where the welding business was shown on the sketch to be. This could be seen from the interstate. Apparently because the inspector expected to find a welding business near the proposed sign site as represented on the Respondent's applications, it was concluded that such a business existed there, and the applications were approved. However, the occupant of the subject property has lived there all his life, and has never operated a welding business. He has only done welding on this site once, when he welded a bumper onto a truck. This took ten to fifteen minutes to complete. The photographs which were received in evidence show his property, and the area depicted was substantially the same in 1983 as when the photos were taken. The general appearance of this area is residential or rural in nature, and not commercial. It is visible to traffic on I-10. 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 February of 1984, and was not used for any business purpose when the permit applications were submitted. This property is also visible from I-10. However, 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 May of 1984 the Department issued its violation letter advising the Respondent that the subject sign permits were being revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AI625-10 and AI626-10 held by the Respondent, Bill Salter Outdoor Advertising, Inc,, authorizing signs on the north side of I-10, approximately .65 mile west of SR 297 in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed. THIS RECOMMENDED ORDER entered this 31st day of October, 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 31st day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-4175T Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted Rejected. Accepted. Rejected, as contrary to the weight of the evidence. Rejected, as contrary to the weight of the evidence, except for the grant of field approval of the permits which is accepted. Accepted, except for cost of erection of the sign which is rejected as irrelevant. Rejected, as irrelevant. Rejected, as irrelevant. Rejected, as contrary to the weight of the evidence, except for visibility which is accepted. Rejected, as irrelevant. Rejected, as contrary to the weight of the evidence, except for visibility which is accepted. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Hayden Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire P. O. Box 12308 Pensacola, Florida 32581 Honorable Thomas E. Drawdy Secretary Department of Transportation Hayden Burns Bldg. Tallahassee, Florida 32301
