The Issue Whether Respondent was in violation of Subsection 479.07(1), Florida Statutes, providing for the permitting of outdoor advertising structures.
Findings Of Fact Respondent maintains an outdoor advertising sign adjacent to U.S. Highway 27 in Gadsden County, Florida. The sign is located approximately 1/2 mile South of the city limits of Havana. This sign has not been permitted in the years 1973 or 1974. No current permit tag was affixed to the sign as of May 12, 1975. Respondent has made no application to the Department of Transportation for a current permit.
The Issue The issue for consideration in these cases is whether the Respondent's signs must be removed because of a failure to display advertising copy for a period of 12 months or longer.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was the state agency responsible for the regulation of outdoor advertising along the state and federal highways in Florida. The Respondent, National Advertising Corporation, also doing business as Outdoor Advertising, owned numerous billboards placed adjacent to those highways. The Respondent's operation is subject to the jurisdiction of and regulation by the Petitioner. From some time in mid-1997 until his retirement from state employment on April 1, 1999, Eugene F. Casey served as a regulatory enforcement inspector for the Department. His territory included several counties in Southwest Florida including Collier County. Mr. Casey was familiar with the status of the highways and billboards in question as he visited the areas in which they were located as a part of his duties on a regular basis. The billboards in question, BL 516-35 and AV 929-35, were classified as non-conforming signs by the Department in accordance with Florida law because the highway sections where they are located had been designated as scenic highways, and because the signs did not conform to the zoning requirements of Collier County. However, had they displayed proper advertising material, they would have been permitted to be properly licensed and remain in place. Mr. Casey visited the sites of both billboards on April 1, 1998, and determined that neither displayed any advertising material. He returned to the sites on June 17, 1998 and on August 19, 1998, at which time he photographed the billboards. On neither occasion did the billboards display any advertising material. He went again on August 14, 1998 and on September 29, 1998, at which latter date he again photographed the billboards because they still displayed no advertising. Casey again visited the sites on October 29, 1998, November 15, 1998, and on December 4, 1998. On the last visit he again photographed the boards. No advertising was displayed on any of the visits. On his visits on January 13 and 25, 1999, he did not photograph the billboards but noticed they did not display advertising. On visits on March 23 and April 1, 1999, he photographed the billboards and neither displayed any advertising. On each of the visits he made to the billboard sites, between April 1, 1998 and April 1, 1999, Mr. Casey made a note of the visit in a log he kept, and on most, though not all visits, noted the absence of advertising. Had he discovered advertising on either billboard at any time during the year-long period he visited them, the presence of that advertising material would have satisfied the requirements of the governing rule, and he would have terminated the monitoring. However, according to Mr. Casey, no advertising material was displayed on either billboard over the year period of monitoring. Mr. Barnhardt, the Respondent's area real estate assistant, contends that a contract was entered into between 3M Media, Respondent's predecessor, and the Comfort Inn on the Bay, a motel, which called for advertising for the motel to be placed on the billboard bearing permit AV 929-35 (DOAH Case 99-2106T), on June 27, 1996, for three years from that date. However, Mr. Barnhardt also admitted that the contract did not run the full three years but was terminated early, and the advertising would have been removed when the contract was terminated. He could not state exactly when the termination took place, and the successor copy was put in place no earlier than April 30, 1999. That clearly leaves room for Mr. Casey's monitoring of the site to discover no advertising on the sign for a year or more. This particular sign is a two-sided sign. Advertising copy has consistently been displayed on the other side of the billboard which bears its own permit number. That side is not in issue. Counsel for Respondent attempted to indicate that Mr. Casey could not positively identify the signs he photographed and about which he testified as the offending signs. However, Mr. Casey indicated in both cases that on the signs he observed he could see the Department permits and could read the numbers thereon. No independent evidence was introduced to indicate that Mr. Casey's monitoring of both signs was inaccurate or mistaken, and it is found that both billboards did not display advertising materials for at least one year. Mr. Casey filled out both notices of violation involved herein but did not sign them. Consistent with Department practice, after the notices were prepared, he took them to his supervisor, Ms. Hall, who reviewed them and signed them. The notices also were reviewed by Mr. Dunsford, who was predecessor in office to Ms. Hall. Mr. Dunsford concluded that both notices of violation were supported by the evidence presented to him and were properly issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order revoking permits BL 516-35 and AV 929-35 and ordering their removal. DONE AND ENTERED this 15th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1999. COPIES FURNISHED: Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Thomas F. Barry, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Jefferson County has established comprehensive zoning for the county pursuant to its Development Code which became effective on April 1, 1983. This code provides a system of land use regulation which includes comprehensive zoning of commercial uses by a category called "Site Particularly Suited for Economic Activity." The commercial zone allows for one of three types of employment centers, namely, Type 1-5, Type 6-20, and Type 21, which are commercial enterprises or firms distinguished by the number of employees in a building or group of buildings at a particular location. Type 6-20 and Type 21 employment centers are only allowed in a "Site Particularly Suited for Economic Activity." Section 1 of Article 25 of this code allows outdoor advertising visible from an arterial highway to be located in one of the "Sites Particularly Suited for Economic Activity" as defined in Article 26. Section 2 of Article 26 of the code states that Economic Activity refers to Type 6-20 and Type 21 employment centers. The Petitioner, by its application for outdoor advertising permits, seeks to erect signs on the south side of I-10, .6 mile west of State Road 59 in Jefferson County, facing east and west. This site is in a Type 1-5 employment center, not a Type 6-20 or a Type 21 employment center, as required by Article 26 of the code. This site is also within 660 feet of the right-of-way of Interstate 10. It is without commercial activity, and is vacant land at the present time. On May 7, 1984, the Petitioner made an application to the Jefferson County Planning Commission for a change of land use, or variance, and listed as its purpose "Outdoor Advertising." On July 12, 1984, the Jefferson County Planning Commission approved the variance as applied for on the property which is the subject of this proceeding. Thereafter, on September 11, 1984, the Petitioner applied with the Department of Transportation for outdoor advertising permits at the subject location. This application was denied by the Department on September 13, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Seminole Inns, Inc., for permits to erect outdoor advertising signs on the south side of Interstate 10, .6 mile west of State Road 59 in Jefferson County, Florida, facing east and west, be denied. THIS RECOMMENDED ORDER entered this 22nd day of March, 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 22nd day of March, 1985. COPIES FURNISHED: Terrell C. Madigan, Esquire David D. Eastman, Esquire P. O. Box 669 Tallahassee, Florida 32302 Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether respondent's initial proposal to deny petitioner's application for a permit to construct an outdoor advertising sign had a reasonable basis in law and fact at the time it occurred or was otherwise substantially justified; or, if not, whether special circumstances would make an award of costs and fees unjust?
Findings Of Fact In the fall of 1988, petitioner proposed to erect a sign facing east, within 15 feet of an existing outdoor advertising sign, on the north side of State Road 200, approximately .6 miles west of the intersection of State Road 200 and I-75. He planned to place a single face at such an angle to the existing, single-faced sign that a V configuration would result. Another outdoor advertising company held a permit for the existing sign, which faced west. It stood on property belonging to a land owner who did not own the property to the east on which Ray proposed to raise its sign. On November 10, 1988, the Department of Transportation issued a notice of intent to deny petitioner's application for a permit to construct the outdoor advertising sign. Petitioner reasonably incurred attorneys' fees of $787.50 and costs of $28.00 before Department of Transportation decided, well after the evidentiary hearing held April 5, 1989, to issue the permit, after all. As far as the record reveals, the Department has faced only one other situation in which an applicant for a permit to construct a sign, within 15 feet of an existing sign, proposed to build on property not owned by the land owner who had leased to the company which had built the existing sign, viz., Ad-Con Outdoor Advertising v. Department of Transportation, No. 89- 0087T. In that case, too, the Department issued a permit for the second sign. In an internal memorandum dated February 17, 1989, respondent's Rivers Buford wrote Dallas Gray, while the Ad-Con application was pending, the following: Inasmuch as the proposed sign would be within fifteen feet of another sign it would, by virtue of the provisions of Rule Chapter 14-10.1006(1)(b)3, be considered a part of a V-type sign and thus its two faces would be exempt from the minimum spacing requirements of Section 479.07, F.S. Respondent's Exhibit No. 2. The memorandum antedated the final hearing in Case No. 88-6107 by more than six weeks. Presumably, the intended rule reference was to Rule 14-10.006(1)(b)3., Florida Administrative Code. At the hearing in the present case, the Department of Transportation produced two witnesses to explain why the Department initially turned down petitioner's application. In their view, the Department of Transportation should never have granted petitioner's application, in order to protect rights vested in the other company, particularly a purported, preemptive right the other company had, by virtue of the location of its existing sign, to build another sign where Ray proposed to build, even though the other company did not own and had not leased the site Ray applied to build on. They asserted not only that the Department was substantially justified in turning down petitioner's application when it was originally considered, but also that any other similar application should be turned down. In their opinion, the Department erred in issuing permits in both cases in which the question has arisen. They attributed the eventual issuance of permits to petitioner and in the Ad-Con case to misinformed and misguided departmental employees. As authority for this view, Mr. Kissinger, respondent's Motorist Information Services Coordinator, cited Sections 479.07(9)(a) and 479.01(14), Florida Statutes (1989) and Rule 14-10.006(b)(2) and (3), Florida Administrative Code.
Findings Of Fact In 1974 Tag No. 8670-10 was issued to Peterson Outdoor Advertising for a sign located on US 98 one-half mile north of SR 60 in Bartow, Florida. At the time the permit was issued, Peterson had a sublease to erect the sign from the operator of a garage located on this site who leased the property from the owner. In 1980 Lamar bought out Peterson and acquired its assets including the permit for a sign on the garage property. At this time Peterson held a lease from Garfield Jones to occupy the site with one advertising structure. This lease was for a five year period ending December 31, 1984 (Exhibit 6). The lease contained the usual provisions for cancellation by the parties and for extensions beyond the expiration date. In 1985, the garage tenant surrendered his lease, and the building was modified to operate as a feed store. Lamar's sign was removed to make way for the building modification as provided for by the lease. On July 22, 1986, Quality executed a lease with Milton W. Bryan, Jr. (Exhibit 3) for a site for an advertising sign at premises located at 1710 N. Broadway in Bartow, Florida. This is the site for which both of these Petitioners seek permits. As compensation therefor the lessee agrees to pay $1200 a year upon erection of the sign. Subsequent thereto on August 6, 1986, Lamar obtained a lease from Bryan to erect a sign on this same property. As compensation therefor, Lamar provided Bryan with a sign along U.S. 17 south of Bartow at no cost. Lamar also presented Exhibit 4 which was admitted without objection. This is an affidavit of Bryan that upon removal of Lamar's sign during construction of the Feed Depot building Lamar had right of first refusal to rebuild an outdoor advertising structure. No evidence was submitted that Bryan offered or failed to offer Lamar right of first refusal before he executed the lease to Quality.
The Issue Whether the Respondent has violated Section 479.02, Florida Statutes, and Section 479.07, Florida Statutes, for failure to display a visible permit tag and for a multiplicity of advertisers on one side of Board No. 0399B.
Findings Of Fact A violation notice was issued on October 18, 1976, Respondent sign company citing an advertising sign located 10.14 miles south of U.S. 1; 528 north of 520 with copy thereon advertising the businesses of 13 restaurants. At the hearing testimony was heard and evidence was received showing that a permit tag was affixed to a pole of the outdoor advertising structure. The tag was not clearly visible and is difficult to be seen inasmuch as the copy of the board has been nailed on the pole immediately above the permit tag. Testimony was received and an exhibit entered which shows that the entire face of the sign is covered with outdoor advertising. Lettering at the top of the sign states "EAT OUT ENJOY THE INFORMAL FAMILY ATMOSPHERE OF MERRITT ISLAND". The lettering on the bottom board of the sign which is a separate board attached to the main board has the lettering, "TURN RIGHT ON 520". The remainder of the board shows individual advertisements of 13 different places to eat. The Petitioner contends: (1) that the permit tag is not clearly visible as required by the law; (2) that the sign is in violation of Section 479.02(1) and the Governor's Agreement promulgated thereto inasmuch as it displays more than two (2) signs. Respondent contends: (1) that the permit tag is clearly visible; (2) that one advertiser bought the copy and the sign displays but one advertisement.
Recommendation Have the Respondent move the permit tag into a more visible position as required by the statutes. Dismiss the charge as to a violation of the Governor'S Agreement. DONE and ORDERED this 29th day of July, 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 William Rowland, Esquire 115 East Morse Boulevard Winter Park, Florida 32789
The Issue This case arose upon the filing of a complaint against Dick Signs by J. H. Hobson, Outdoor Advertising Agent, Department of Transportation Right of Way Bureau. The case was thereafter referred to the Division of Administrative Hearings by the Department of Transportation for hearing to determine whether Dick Signs was in violation of Section 497.07, Florida Statutes, by erecting, using or maintaining advertising structures without acquiring and affixing to said structures the permits required by law. Counsel for the Department of Transportation moved for additional time to submit evidence of notice of the hearing and was granted leave to file with the Hearing Officer said notice not later than October 28, 1975. Having examined the notice, the Hearing Officer finds that notice was given in the manner and within the time prescribed by Chapters 120 and 79, Florida Statutes. James H. Hobson was called and his sworn testimony was received regarding the six signs charged to be in violation of Chapter 479, Florida Statutes, in the Administrative Complaint. Based upon his testimony the Hearing Officer makes the following findings:
Findings Of Fact The first sign referenced in the charges was located on S.R. 775 and ALT 45, 2.75 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 24' x 10', bore a 1972 permit with number 2485-6-72 issued to Dick Signs, bore a plague indicating it was owned by Dick Signs, and had an advertisement for First Federal on the date of inspection. The annual licensing fee is $6, and has not been paid for the years 1973, 1974 and 1975. The second sign referenced in the charges was located on S.R. 775 and ALT 45, 2.31 miles south of its junction with U.S. 41. This sign was inspected by the witness Hobson on June 18, 1975. This sign was 10'x 40' and was double faced, presenting advertising copy on two directions which could be seen from the highway. It bore a 1969 permit, number 4282-10-69 issued to Dick Signs and bore a plague indicating it was opened by Dick Signs on the date of inspection. The annual fee for said double faced sign is $20, and this fee has not been paid for 1970, 1971, 1972, 1973, 1974, and 1975. The third sign referenced in the charges was located on S.R. 775 and ALT 45, 2.59 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 10' x 40', bore a 1972 permit number 4195-10-72 issued to Dick Signs and bore a plague indicating it was owned by Dick Signs on the date it was inspected. The annual fee for this sign is $10, and this fee had not been paid for the years 1973, 1974, and 1975. The fourth sign referenced in the charges was located on S.R. 775 and ALT 45, 1.10 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 10' x 24' and bore a plague indicating it was owned by Dick Signs. It did not have any permit. The annual fee for said sign is $6. The fifth sign referenced in the charges is located on S.R. 775 and ALT 45, 1.10 miles south of its junction with U.S. 41. It was personally inspected by the witness Hobson on June 18, 1975. This sign bore a 1972 permit number 2076-4-72 issued to Dick Signs and a plague indicating it was owned by Dick Signs on the date of inspection. The size of this sign requires an annual fee of $6 and had not been paid in 1973, 1974, and 1975. The sixth sign referenced in the charges was located on S.R. 775 and ALT 45, 1.68 miles south of its junction with U.S. 41. It was personally inspected by the witness Hobson on June 18, 1975. On the date of inspection it bore a 1972 permit issued to Dick Signs and a plague indicating it was owned by Dick Signs. The annual fee for this sign is $10 and it had not been paid in 1973, 1974, and 1975. The witness testified that Dick Signs was a licensed outdoor advertiser holding License No. 18233, valid for 1975. The witness further testified that in the course of his duties be would receive any applications for renewal of the permits of the signs identified above, and these applications had not been received prior to the hearing.
The Issue Whether the sign of Respondent violates Section 479.07 and Section 479.02, Florida Statutes by violation of the permit and spacing requirements of the Outdoor Advertising Act.
Findings Of Fact An application was made for a permit for the subject sign and the application was denied on the basis that the sign was within the 500 foot spacing requirement, the sign being erected approximately in the middle of the distance between two outdoor advertising sign which are approximately 500 feet apart. The sign advertises Oaks Trading Post. The sign has been erected for many years and has carried messages such as "Elect Askew for Governor" and "Vote Democratic" or other political advertisements. The sign now advertises a commercial establishment and has since, at least, December of 1976. This sign does not bear a permit although the Respondent admitted that it is a commercial sign. 3.. The Respondent has paid the required license fees for the subject sign for more than the last 20 years to the City of Rockledge, Florida.
Recommendation Remove the subject sign. DONE AND ORDERED this 10th day of February, 1978, 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 Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Anthony Ninos 112 Riverside Drive Cocoa, Florida 32922
Findings Of Fact Respondent maintained two outdoor advertising signs adjacent to U.S. Highway 90 in Gadsden County, Florida. The first sign listed on the notice of outdoor advertising law violation dated August 5, 1974, has been removed. No further action is necessary in regards to this sign. The second sign listed on the August 5, 1974, Notice of Violation is located adjacent to U.S. Highway 90 1/2 mile West of the city limits of Quincy, Florida. The second sign was not permitted in the years 1973 or 1974. Respondent has not made application for a current permit as of the date of hearing.
Findings Of Fact On January 7, 1980, Dowden Funeral Home, Respondent, obtained a building permit from Highlands County (Exhibit 4), to construct a wooden sign along U.S. 17 near Sebring, Florida; and thereafter constructed a 20-foot by 14- foot sign along U.S. 17, 0.25 mile northeast of U.S. 27. The location is just outside the city limits of Sebring, Florida, and U.S. 17 is a federal-aid primary highway. Respondent's sign is located approximately 200 feet from a Barnett Bank sign which was permitted and erected in 1977 (Exhibit 6). Respondent's witness contends that when he obtained the building permit and inquired if additional permits were needed to erect this sign, he was told no by the county building officials.
