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.
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
The Issue Whether the signs of Respondent should be removed for violating the spacing requirements of Florida Statutes and State Laws, Rules and Regulations.
Findings Of Fact An application for a permit was filed by the Respondent, Lamar-Citrus Outdoor Advertising, for a location and construction of a billboard sign. The application designated U.S. 41 not within the city limits in the county of Lee. The nearest highway intersection was designated as Bonita Beach Enterance, Highway 865 and 1200 feet North from the intersection. The permit was approved May 13, 1976, and the approval designated the sign location as "Sec 309N 01.32 15R f/s." The direction that the sign would face was checked. The lighted block was not checked. Thereafter a 12 x 25 double-face lighted sign was erected by the Respondent on the West side of United States Highway 41, a four-lane highway. On May 2, 1977, the Petitioner, Department of Transportation, issued an "alleged violation of Chapter 479, Florida Statutes, and Notice to Show Cause." The violation notice stated "Signs were approved in this section, but they were for 309 North, not South." Petitioner requested an administrative hearing. Petitioner contends: he properly constructed his signs pursuant to his application and the permit issued by the Respondent. He contends that the spacing problem is caused by another outdoor advertising sign and not his own. Petitioner further contends that the application forms have been changed to clarify the location of signs since his application was filed and his permit was granted. Respondent contends: that Petitioner failed to locate his sign in the location for which he applied and for which the permit was issued; that because of the failure to properly locate his sign, his sign is in an unpermitted location and is an unpermitted sign; that Petitioner's sign is in violation of the spacing requirements of Section 479.02(2) inasmuch as a properly permitted sign is within 200 feet of Petitioner's sign; that the Petitioner has been applying for and has been granted permits for outdoor advertising along the highways of the State of Florida for at least nine and a half years and that the same method of describing the location for the construction of billboards has been used by the Respondent and has been used by the Petitioner and that it is a logical and practical way to describe a permitted location for a sign along a highway; that it is true that new forms are being used to further clarify the position of signs but that the application form used by the Petitioner when applying for the sign and obtaining a permit for the subject sign is clear on its face and the method of location has been well known to the Petitioner for many years. Upon observing the demeanor of the Petitioner and Respondent and listening to the testimony of the witnesses and argument of counsel, the Hearing Officer further finds 1) the Petitioner knew or should have known that the area in which he was permitted to erect a sign was East of the highway inasmuch as the location and construction form expressly stated that the nearest highway intersection was Number 865 and that the direction from the intersection was North. The permit states Sec. 309 North and indicated the sign faces South. A driver of a vehicle going North from the intersection must be in the right hand two lanes of U.S. 41 and that to proceed 1200 feet a sign would be on the right hand or the East side of the four lane highway. The "modus operandi" for location of signs is statewide and well known to the Petitioner as well as the Respondent. To ascertain a location on the West side opposite the area in which the Respondent approved for Petitioner's sign would have required a vehicle to travel North in the South bound lanes of U.S. 41 in order to drive the distance from the stated intersection to the location. Throughout the state the sections are usually designated on the permits so that they show the direction in which to drive, North, South, East or West. The signs are located on the right side of the highways as the vehicle travels.
Recommendation Require the Petitioner to remove the subject sign or remove it at the expiration of appeal time. DONE and ENTERED this 12th day of January, 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 E. Snow Martin, Esquire Post Office Box 117 Lakeland, Florida 33802
Findings Of Fact On September 1, 1980, Bill Salter Advertising, Inc., executed a lease agreement with Edward M. Chadbourne to erect outdoor advertising signs facing north and south on the Chadbourne property 190 feet east of the intersection of State Road 742 and State Road 291 in Escambia County, outside the city limits of Pensacola. This lease was renewed for calendar year 1981-1982 and calendar year 1982-1983. The third renewal expires on August 31, 1983. On August 4, 1981, Bill Salter Advertising, Inc., applied to the Department of Transportation for permits to erect outdoor advertising signs located 190 feet east of the intersection of State Road 742 and State Road 291 facing north and south. At the time of this application, Bill Salter Advertising, Inc., held the property under the above lease. On August 17, 1981, the Department of Transportation approved the application for permits. On April 15, 1982, Bill Salter Advertising, Inc., executed an affidavit to cancel its permits at the location 190 feet east of State Road 742 and State Road 291 facing north and south in order to get a more advantageous position for the erection of an outdoor advertising sign. On February 23, 1982, Bill Salter Advertising, Inc., executed a lease agreement with Felix Bell to erect outdoor advertising signs on the Bell property at a location on State Road 291, 190 feet east of the intersection of State Road 742 and State Road 291 in Escambia County, outside the city limits of Pensacola. On April 12, 1982, Bill Salter Advertising, Inc., applied to the Department of Transportation for permits to erect signs facing north and south on State Road 291, 190 feet east of the intersection of State Road 742 and State Road 291. At the time of this application, Bill Salter Advertising, Inc., held the property under the Bell lease. On April 27, 1982, the Department of Transportation approved this application for permits. On October 12, 1982, the Petitioner, Lamar Advertising Company, applied to the Department of Transportation for permits to erect outdoor advertising signs on State Road 291, 218 feet north of State Road 742. This location is not a Federal-Aid Primary or Interstate Highway, and it is outside the city limits of Pensacola, in Escambia County. As such it is subject to the spacing requirements of the Escambia County ordinance regulating outdoor display advertising. Such application was submitted by the Petitioner, Lamar Advertising Company, after Bill Salter Advertising, Inc., had cancelled its permits at the location, 190 feet east of the intersection of State Road 742 and State Road 291, and after the Department of Transportation had approved the application for permits submitted by Bill Salter Advertising, Inc., for locations 190 feet east of the intersection of State Road 742 and State Road 291 on the Felix Bell property. The location for which Lamar Advertising Company seeks permits is less than 500 feet from the permitted locations of Bill Salter Advertising, Inc., at 190 feet east of the intersection of State Road 742 and State Road 291.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Lamar Advertising Company for permits to erect signs facing north and south on State Road 291, 218 feet north of State Road 742, in Escambia County, Florida, be DENIED. DONE and RECOMMENDED this 18th day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1983. COPIES FURNISHED: P. Michael Patterson, Esquire 905 West Moreno Street Pensacola, Florida 32501 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32501 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Holden Avenue, approximately 400 feet west of the intersection of Holden Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately 4.04 miles south of SR 50, as alleged in the violation notice. The subject sign is located on the south side of Holden Avenue, facing east and west which is parallel to U.S. 17/92/441. U.S. 17/19/441 is a federal-aid primary highway. Holden Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660 feet of a federal- aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected in February of 1985 without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in The subject sign is visible to traffic on U.S. 17/92/441, although it is perpendicular to Holden Avenue and parallel to U.S. 17/92/441. There is another permitted sign owned by Cashi Signs located on the west side of U.S. 17/92/441, approximately 686 feet south of the Holden Avenue intersection. This sign faces north and south, not east and west and is not on Holden Avenue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on July 26, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, 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 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent, Atlantic Outdoor Advertising, Inc., has erected a sign adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida. Atlantic Boulevard is a federal-aid primary highway, while Southside Boulevard is not. The place where the Respondent erected the subject sign is within 660 feet from Atlantic Boulevard, and this sign is visible from the main-traveled way of Atlantic Boulevard. The subject sign is approximately 300 feet from another sign, owned by Naegele Outdoor Advertising Company, which was permitted by the Department in 1980 and 1981. The Naegele permits are still valid, and they authorize a sign within 660 feet of Atlantic Boulevard on the same side of the road as the Respondent's subject sign. When the Respondent erected its sign it had obtained a building permit from the City of Jacksonville, and it holds a lease to the site where the sign is located, but the Respondent does not have a state permit for its sign and no state sign permit has been applied for by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the outdoor advertising sign of the Respondent, Atlantic Outdoor Advertising, Inc., located adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida, be removed. THIS RECOMMENDED ORDER entered this 18th day of June, 1986 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 18th day of June, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3021T Rulings on Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Rulings on Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted, but irrelevant. Accepted, but irrelevant. Accepted, but irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Paul M. Glenn, Esquire 2900 Independent Square Jacksonville, Florida 32202 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact In 1976 an outdoor advertising company named Outdoor Media applied to the Department to have permits issued for a sign that had been built in 1971 on the north side of I-4, 1.42 miles west of U.S. 17/92/441 (Orange Blossom Trail) inside the city limits of Orlando. Permit numbers 2259-12 and 2260-12 were issued by the Department to Outdoor Media for the west face and the east face of this sign. In 1978 the Respondent, Peterson Outdoor Advertising, Inc., purchased this sign from Outdoor Media. A request for replacement tags was made and granted, and tag number 2259-12 was replaced by 7553-12, and tag number 2260-12 was replaced by 7554- In April of 1984 the Respondent again requested replacement tags, and tag number 7553-12 was replaced by AM 267-12, and tag number AM 7554-12 was replaced by AM 268-12. Sometime after April, 1984, this sign was removed, and the Respondent erected a new sign, a monopole, at a location on the north side of I-4, 1.5 miles west of U.S. 17/92/441 (Orange Blossom Trail). This is approximately 200 feet west of the place where the old sign had been located. The Respondent affixed tag numbers AM 267-12 and AM 268- 12 to the new monopole structure, but these tags were not issued for this sign. They had been issued for the old sign which was removed. The city limits of Orlando are such that the location of the new monopole is outside the city; while the location where the old sign had been was inside the city limits. The county allows a taller sign than may be built inside the City of Orlando, and the Respondent wanted to enhance the visibility of its sign by raising its height. The Respondent obtained a variance from Orange County to extend the height of the monopole sign to a total of 65 feet. The monopole sign at 1.5 miles west of U.S. 17/92/441 percents adjacent to the ramp leading onto I-4 and is less than 1,000 feet from the nearest permitted sign. The distance between these signs is 898 feet as measured by the Department's inspector using a measuring wheel. The Department's inspector has more than 11 years of experience. He has measured signs, sites and locations over 1,000 times. He is familiar with the state and federal requirements for calculating point to point measurements between signs, and he followed them in making the measurements in this case. The Department's inspector measured the distance between the Respondent's new monopole and the nearest permitted sign three times with the same result. Be ran the measuring wheel along the right-of-way of I-4 at right angles to the two signs. Five of the Respondent's witnesses also measured the distance between these signs with results ranging from 955 feet to 1,016 feet. However, none of these witnesses had any experience in making measurements between signs pursuant to state and federal requirements, and some of these distances were obtained by measuring along the ramp instead of along the side of the highway. Thus, the testimony of the Department's inspector is found to be the credible evidence supporting the finding that the two subject signs are 898 feet apart. The Department's evidence relative to when the new monopole was erected is vague and imprecise, and thus not of sufficient quality to support a finding of fact on this issue. The Respondent presented evidence to show that the monopole was erected in April of 1984, and it contends that it applied for the county variance in preparation for relocation and reconstruction of this sign. However, the Respondent's evidence that the monopole was erected in April of 1984 is self-serving, and not corroborated. Even the variance notice indicates that it was applied for on October 4, 1984. Thus there is likewise insufficient credible evidence to support the Respondent's contention relative to when this sign was actually constructed. Nevertheless, the Respondent erected its new monopole structure at the point on the north side of I-4, 1.5 miles west of U.S. 17/92/441, without having first obtained a state sign permit for this location. The Respondent's manager and its president both admit that tags numbered AM 267-12 and AM 268-12 were issued for the sign at 1.42 miles west of U.S. 17/92/441. Peterson Outdoor Advertising is a licensed outdoor advertising company. The firm's manager has been in the business for 27 years. The company president has been engaged in the business of outdoor advertising for more than 25 years, and he claims to have a familiarity with the law. From these facts, and from all inferences that can be drawn therefrom, there is not sufficient evidence to support a finding that this experienced outdoor advertising company was misled into moving its sign 200 feet westward without a permit by the Department's approval of its request for replacement tags for the old sign structure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent's sign on the north side of I-4, 1.5 miles west of U.S. 17/92/441, in Orange County, Florida, be removed. And it is RECOMMENDED that permits numbered AM 267-12 and AM 268-12 be REVOKED. THIS RECOMMENDED ORDER entered this 26th day of February, 1986 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 26th day of February, 1986. APPENDIX Petitioner's Proposed Finding of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Replacement tags are not outdoor advertising sign permits. Rejected as not supported by competent substantial evidence, or irrelevant. Last sentence is accepted. Rejected as irrelevant. Lost tag application is not an application for outdoor advertising sign permit. Accepted. Rejected as not supported by competent substantial intent. Rejected as irrelevant, except for raising the height of the sign to 65 feet which is accepted. Rejected as irrelevant or not supported by competent substantial evidence, except for the granting of a variance and the building permit which are accepted. Rejected, as not supported by competent substantial evidence. Rejected, as not supported by competent substantial evidence. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32801-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Florida Administrative Code Rule 14-10.007(6)(b), which provides for revocation of outdoor advertising permits for nonconforming signs that are abandoned or discontinued, is an "invalid exercise of delegated legislative authority" as alleged by Petitioners.
Findings Of Fact The Department of Transportation is the state agency responsible for administering and enforcing the outdoor advertising program in accordance with chapter 479, Florida Statutes. The Department adopted Florida Administrative Code Chapter 14-10, which provides for the permitting and control of outdoor advertising signs visible to and within controlled areas of interstates and federal-aid highways. Rule 14-10.007 provides regulations for nonconforming signs. Section 479.01(17), Florida Statutes, defines nonconforming signs as signs that were lawfully erected but which do not comply with later enacted laws, regulations, or ordinances on the land use, setback, size, spacing and lighting provisions of state or local law, or fail to comply with current regulations due to changed conditions. Rule 14-10.007 provides in part that: (6) A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. "Destroyed," "abandoned," and "discontinued" have the following meanings: * * * (b) A nonconforming sign is "abandoned" or "discontinued" when a sign structure no longer exists at the permitted location or the sign owner fails to operate and maintain the sign, for a period of 12 months or longer. Signs displaying bona fide public interest messages are not "abandoned" or "discontinued" within the meaning of this section. The following conditions shall be considered failure to operate and maintain the sign: Signs displaying only an "available for lease" or similar message, Signs displaying advertising for a product or service which is no longer available, Signs which are blank or do not identify a particular product, service, or facility. Carter is licensed to engage in the business of outdoor advertising in Florida and holds an outdoor advertising permit for a nonconforming outdoor advertising sign bearing Tag No. AS 228. The outdoor advertising sign for the referenced tag number is located in Lee County, Florida ("Carter Sign"). On February 22, 2010, the Department issued a Notice of Intent to Revoke Sign Permit to Carter for sign bearing Tag No. AS 228. The notice advises that "this nonconforming sign has not displayed advertising copy for 12 months or more, and is deemed abandoned, pursuant to s. 14-10.007(6)(b), Florida Administrative Code." Petitioner Nissi is licensed to engage in the business of outdoor advertising in Florida and holds outdoor advertising signs bearing Tag Nos. BK 731 and BK 732, which signs are located in Pasco County, and BN 604, BN 605, AR 261, AR 262, AT 485 and AT 486, which signs are located in Hernando County ("Nissi Signs"). In June and July 2013, the Department issued notices of intent to revoke sign permits, pursuant to rule 14-10.007(6)(b), based on the signs not displaying advertising for 12 months or longer. The notice issued to Nissi advised that the Department deemed the signs as having been abandoned. Carter and Nissi, as owners of nonconforming signs receiving violations under rule 14-10.007(6)(b), have standing and timely challenged the rule in dispute herein.
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, I-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 These double-faced, stacked signs are located 1.4 miles east of State Road 276 on I-10. These signs were inspected on October 22, 1980, by an inspector of the Department of Transportation, who observed that the signs' messages were visible from the main traveled way of I-10 and did not bear the permits required by Chapter 479, Florida Statutes. At the time of this inspection I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The signs were located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, name plates identifying Henderson signs as responsible for the signs were attached to the signs. (Transcript, page 29.) 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 files, Cases Nos. 81-106T and 81-107T. The foregoing facts establish that the subject signs are signs regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the signs. Gene Henderson testified concerning the erection of the poles and the attachment of sign faces to the poles. According to Henderson, the sign poles were erected during the latter part of 1975, and the first sign face (Case No. 81-106T) advertising "Quality Inn" was affixed to the sign on January 15, 1977. On June 15, 1978, a second sign face was affixed to the sign poles in the opposite direction (Case No. 81-107T) advertising "Shell Food Store." W. B. Reddock, affiliated with Arrowhead Camp Grounds, appeared and testified. Although Reddock may have some interest in these signs, it is concluded that the signs are the responsibility of Henderson Signs, which erected the poles prior to the time I-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject signs are located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 8, an aerial photograph of the section of I-10 along which the subject signs are located. This photograph bears the number PD 2193 and is Sheet 4 of 28 sheets taken on November 14, 1977. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the signs 1.4 miles east of SR 276 on I-10. The photograph was examined by the Department's engineer, who observed the presence of six poles at the location. No sign faces were attached to the poles on November 14, 1977, 30 days 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 signs within 30 days and without compensation to the signs' owner. DONE and ORDERED this 16th day of September, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 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 Hayden 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 the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st 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 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
