Findings Of Fact In mid-1983 National had a properly permitted outdoor advertising structure bearing tag numbers AD-016-10 (south-facing sign) and AD-018-10 (north-facing sign) on the east side of U.S. 27 on leased property in Highlands County. In the latter part of 1983 this property was purchased by Young. On September 15, 1983, Young notified National that he was the owner of the property on which this sign was located and requested National to remove the sign. On September 16, 1983, Young applied for a permit to erect an outdoor advertising sign at this location. Young's application was disapproved by DOT on November 7, 1983, because DOT's records showed this to be a site occupied by a permitted sign (Exhibit 3). On or about October 26, 1983, after having received no response from National to his request for National to remove the sign, Young cut down the sign by sawing its supporting posts. On November 28, 1983, Young requested a hearing on the denial by DOT of his application for a permit for a sign at this site. On November 3, 1983, National obtained a lease (Exhibit 2) on property abutting Young's property and, on or about November 4, 1983, erected a sign on this property using the same faces from the fallen sign and attached the tags issued for its original sign. National's original lease dated 10/13/80 (Exhibit 1) with John Larino provided that either party could terminate the agreement on thirty days' notice. When Young purchased the property from Larino, he complied with the lease provisions regarding termination of the lease, including rebating the rent for the unused portion of the lease. Young erected a sign on this property on November 6, 1983, before his application had been denied and two days after National had re-erected its sign. Young obtained a county building permit on September 16, 1983, for the sign he subsequently erected. National has not applied for permit for the structure erected on the land leased from Boyd but attached permit tags AD-016-10 and AD-018-10 to the sign. The juxtaposition of the signs is as follows: proceeding north on U.S. 27, the first sign is owned by Young, next is the site of the former National sign, and then National's new sign. All of these locations are on the east side of U.S. 27, are less than 1,000 feet from a permitted sign to the south, are more than 500 feet from the sign, and all are within 180 feet of each other. When an applicant applies for a permit for a new sign, the site is inspected by a member of the Outdoor Advertising staff in the DOT district where the sign is to be located in company with the application, or the site is staked out by the applicant and viewed by a staff member. This inspection is to ascertain that the proposed sign will be located the required minimum distance from an existing sign and the proper distance from the roadway from which the sign will primarily be observed. DOT'S policy is that any relocation of the sign from the authorized location constitutes a new sign and requires the submission of a new application and approval therefor. The approved application for National's original sign was on U.S. 27 2.9 miles north of "Junction 17-Sebring." This location is on the property now owned by Young.
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1670T and 81-1671T are located on the south-facing wall of the "27th Avenue Market" at 2742 SW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) investigated the signs at the 27th Avenue Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling north on 27th Avenue and are located near the right-of-way. Both signs bear the logo "Empire", and Respondent acknowledges owning the signs. The inspector's investigation of the 27th Avenue Market signs also revealed the existence of a permitted outdoor advertising sign owned by another sign company, which is located approximately 117 feet south of the Empire signs and also faces south. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the 27th Avenue Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal- Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. A lease was entered into between Peppi Advertising Company and the owner of the property on May 2, 1958, to place signs on the wall at 2742 SW 27th Avenue. The firm obtained a building permit on May 5, 1958, for the erection of two signs six by 12 feet on the side of the building located at 2742 SW 27th Avenue. The Vice President testified it was company procedure to erect signs a week or two after the lease was entered into, but he did not observe the signs in question being put up. He further testified the signs were up when he went back to post them. The signs in question were erected in 1958, and have been in existence since that date. No permits for the signs in question were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question on July 15, 1982, showing advertising copy to consist of Newport Cigarettes and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Strohs Beer and EverReady Energizer Batteries. The above items are products of national companies who pay Empire to advertise their products. Empire pays the 27th Avenue Market for the privilege of placing the signs in question on the side wall of the market. The signs in question are not on-premise signs. Patrick D. Calvin, the Department's Administrator for outdoor advertising, testified concerning agency policy. It is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department's admitted policy is that a lawfully erected sign may lose its grandfathered status as a nonconforming sign under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days' period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner is entitled to an outdoor advertising sign permit to be located in an unzoned commercial/industrial area and whether the sign site qualified as an unzoned commercial/industrial area.
Findings Of Fact Lamar is in the business of erecting, operating and maintaining outdoor advertising signs in Northwest Florida. The proposed sign’s location was in Walton County along US Highway 331, .1 mile south of Bay Grove Road, a collector road. U.S. Highway 331 is a federal aid primary highway and therefore, a state permit is required for signs placed along its path. According to a Walton County zoning plan, the proposed sign’s location was in an area zoned Rural Village on both the Future Land Use Map and Land Development Regulations. The June 2006 version of the Walton County Land Development Code provides: F. Rural Village (RV): This district is a mixed use district which permits predominately residential development up to a maximum of two units per acre. Residential uses shall account for approximately 95 percent of the total land area within any area designated on the FLUM for this District. The remaining area may be utilized for related and compatible commercial uses. Commercial uses may occupy up to five percent of the total land area designated on the FLUM for this District. Commercial land uses shall be limited to collector and arterial road intersections, intersections of subdivision collectors and arterial or collector road, and areas that are specifically designated Commercial on the FLUM. Not more than 15 percent of the total frontage on both sides of a collector or arterial road shall be occupied by commercial uses within this district. The Walton County Land Development Code also defined general commercial activity as including inventory storage. The proposed sign’s location met the requirements for commercial use under the RV designation. Walton County certified to the Department that the designated parcel for the proposed outdoor advertising sign was Rural Village and that the primary use of the area under the current comprehensive plan was agriculture, general agriculture, residential, civic uses, and residential subdivision. Walton County also confirmed that the proposed outdoor advertising sign would be in compliance with all duly adopted local ordinances and would be issued the necessary County permit for such sign. The Walton County Property Appraiser’s website listed the usage of the proposed outdoor advertising sign location as a “service station.” The service station building was still on the property, but had not been used as such for a number of years. Billy Wayne Strickland, the state outdoor advertising administrator of the Department, processed the outdoor advertising permit applications submitted by Lamar. Mr. Strickland determined after a review of Lamar’s applications that the site, being designated as Rural Village with mixed uses allowed, met the need for evaluation under the use test for unzoned commercial or industrial areas contained in Chapter 479, Florida Statutes. The use test is set forth in Florida Statutes 479.02. Under the test, the Department examines a proposed sign’s location under the applicable current land use designation and future land use designation to determine if the outdoor advertising site meets the use criteria set forth in the statute for unzoned commercial and industrial areas. The use criteria for such unzoned property require that three commercial or industrial activities be located within 1600 feet of each other, with one of those activities located on the same side of the road and within 800 feet of the proposed sign’s location. Distances are measured from building to building. Additionally, the commercial or industrial activity must be visible from the highway. Mr. Strickland visited the property in order to determine if the proposed sign location met the requirements of the use test. He observed that the proposed sign’s site holds an abandoned-looking gas station and a house with a large fenced in area. Leaking fuel tanks made it unlikely the service station would be restored. There were several small, boarded-up, “fishing style cabins” associated with the fenced property. The fenced area had a sign posted for North Florida Development, Inc., a construction company. There was a number for the company listed on the sign. On a tree to the right of the fence was a sign that read “Private Road Keep Out.” In general, the area behind the fence appeared to be used for storage of building materials and equipment such as trucks and trailers. Except for the area behind the fence, the North Florida Development property was clearly visible from the highway. Mr. Strickland called the phone number on the sign and was informed that North Florida Development, Inc., that he was calling, was in Miramar Beach, Florida, and that North Florida Development was storing equipment and trucks at the U.S. Highway 331 location for a job they were doing in Destin. There was no one present at the house or the adjacent buildings. The North Florida Development buildings and fenced area were within 800 feet of the proposed sign’s location and were on the same side of the road as the proposed sign’s location. Because of the lack of activity, Mr. Strickland concluded that the North Florida Development property was not a commercial activity which was visible from the highway. On the opposite side of the Highway, Mr. Strickland observed two businesses within a 1600-foot zone that met the criteria of the use test. Additionally, while at the site, Mr. Strickland issued a Notice of Violation for the on-premises sign of North Florida Development. The Notice required the sign to be removed. Later, after the hearing in this matter, this action was dismissed by the Department. On November 29, 2006, the Department issued a written denial of the outdoor advertising sign site permit applications for the following reasons: (1) the sign site was not permitted under the local land use designation of site per Section 479.111(2), Florida Statutes, and (2) the sign site did not qualify as an unzoned commercial/industrial area per Section 479.01(23), Florida Statutes. On the morning of April 5, 2007, Mr. Strickland, again visited the proposed sign’s site. He observed essentially the same things he observed during his first visit to the location, except the large North Florida Development sign that had been on the entrance to the fenced area had been removed. Andrew White, a regional inspector with the Department, inspected the North Florida Development site on May 17, 2007, and photographed the area. The sign for North Florida Development had been removed, but the keep-out signs were still in place. Photographs taken from the street revealed a partial view of a storage trailer through the open fence. On the morning of June 6, 2007, just prior to the hearing, Mr. Strickland again visited the proposed sign’s location and observed no activity at the location. He could only see a trailer partially visible beyond the privacy fence. Larry Wayne Adkinson, vice president of North Florida Development and a general contractor licensed in Mississippi, lives and works on the property of the proposed sign’s location. Mr. Adkinson testified that the property totaled five and a-half or six acres and consisted of his home, his office, the service station and five fishing cabins. He and his business have been at this location for at least 12 years. Work has been delayed on repairing the service station based, in part, upon the fact that the state was seeking to condemn a portion of the property where the service station was located for the expansion of U.S. Highway 331. Mr. Adkinson uses the property as an inventory site, storing construction materials, heavy equipment, landscaping materials, and other bulk material related to his business. The site contained three semi-tractor trailers that were utilized to store construction materials, including doors, windows, and heavy equipment and equipment and materials for a landscape business owned by Mr. Adkinson. The landscape business stored tractor-trailers, small-equipment trailers, plants, brick pavers, scaffolding and rock molds. The site’s storage of inventory and business activity was very visible to people who lived in the neighborhood around the North Florida Development property. The visibility was such that, in 2006, the neighbors complained about the view to the County. The County, in turn, asked Mr. Adkinson to place a fence around the area to block the view of people passing through the area. Mr. Adkinson complied with the County’s request and built the privacy fence that Mr. Strickland observed. Mr. Adkinson also placed the company’s business sign on the fence to identify the property as North Florida Development’s business property. Most of the loading and unloading of material and equipment occurs in the early morning and evening hours. At those times, there is considerable activity at the site with trucks and equipment entering and leaving the property. Mr. Adkinson’s testimony was confirmed by the testimony of Chad Pickens, who routinely drives by the site during those hours. Mr. Strickland never visited the property during those busy hours, and therefore, did not observe the business activity associated with the site. Mr. Adkinson uses two of the fishing cabins as machine shops for his company’s equipment and tools. The shops contain drill presses, welding and repair equipment. Entry is gained through the rear doors of the cabins. He left the front of the cabins boarded up to prevent theft and storm damage. Mr. Adkinson also receives business mail at the U.S. Highway 331 location and has employees and job applicants report to that location. Clearly, the North Florida Development property is a viable and on-going business that conducts one of its business activities on the property on which the proposed sign is to be located. The activity is visible from the highway, although such activity ebbs and flows through the day. The property, therefore, meets the land use test requirements of Florida Statutes, and the Petitioner’s applications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Department of Transportation enter a Final Order granting the applications for outdoor advertising sign permits filed by Lamar Advertising of Fort Walton Beach. DONE AND ENTERED this 13th day of December, 2007, 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 13th day of December, 2007. COMPLETE COPIES FURNISHED: Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James E. Moore, Esquire Post Office Box 1622 Crestview, Florida 32536 David M. Littlejohn, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Meyers Clerk of Agency Proceedings 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 Alexis M. Yarbrough, General Counsel Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Respondent is in violation of Section 479.07, Section 479.11(5) and Section 479.11(1), Florida Statutes, which statutes provide that permits must be obtained from the Florida Department of Transportation before an outdoor advertising sign is erected and which prohibits the erection of an outdoor advertising sign within 660 feet within the nearest edge of the right of way of all portions of the interstate system or the federal primary aid system and which is placed on the inside of a curve or in any manner that may prevent persons using the highway from obtaining an unobstructive view of approaching vehicles.
Findings Of Fact Subject sign was erected without a permit in 1973 and was nailed to a tree. The sign is located in a zoned residential area approximately ten feet from the nearest edge of the right of way of a federal aid primary highway, State Road 61.
Recommendation Remove subject sign and remove any re-erection of subject sign. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 C. A. Miller Auto Truck Service 806 Westway Road Tallahassee, Florida
The Issue Whether the Respondent is in violation of Chapter 479, Florida Statutes, for having no identification on the sign, no valid lease for the sign and no current permit tag.
Findings Of Fact A violation notice was issued to the Respondent, Peterson Outdoor Advertising Company, on June 18, 1976, citing a sign located at .23 miles south of John's Road on U.S. 1, with copy "TOBYS". The violation not ice stated that the Respendent was to violation of Section 479.07(4), Florida Statutes, with no current tag, with the lust tag being 1971; Section 479.07(7), Florida Statutes, with no identifier; Section 479.13, Florida Statutes, with no valid lease. The latest permit tag affixed to the sign is dated 1971. A photograph of the sign taken on the 20th of April, 1977, showed that there was no identifier on the sign. An identifier is the imprint showing the owner of the sign. Subsequent to the taking of the photograph, an identifier was added to the sign showing the Respondent as owner. The Respondent entered into evidence an application for outdoor advertising permit dated March 2, 1977. A sign lease agreement was entered into evidence by the Respondent dated the 15th day of February, 1977, alleged to be a lease agreement from the Florida Conference Association of Seventh Day Adventists for a lease for a term of five years beginning January 1, 1973 and expiring December 31, 1977, for the subject billboard sign. There was confusion as to the ownership of the sign and the sign stood without permit tags subsequent to 1971. No application for permitting of the sign was made until the Respondent made an application for a permit as indicated in the foregoing findings of fact in 1977. The proposed Recommended Order of the Respondent has been considered in the preparation of this order.
Recommendation Remove the subject sign inasmuch as the sign is illegal and in violation of Chapter 479, Florida Statutes. DONE and ORDERED this 22nd day of July, 1977, 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 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32789
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Department of Transportation (DOT), is the state agency charged with the responsibility of administering and enforcing the Federal Highway Beautification Act, as amended, which pertains to lighting, design and spacing of signs on the interstate, federal and primary highway systems. Respondent, First Coast Outdoor Advertising, Inc. (First Coast), is an outdoor advertising firm located in St. Augustine Beach, Florida, and is the owner of a sign erected on State Road A1A in Flagler County, Florida. Respondent, Motel Delores, is a motel located at 5992 Oceanside Boulevard (State Road A1A) in Flagler County and has a sign erected near its place of business. Both signs are located on the same side of the highway and are subject to DOT's regulatory jurisdiction. The underpinnings of this controversy began in 1966 when Motel Delores decided it would erect a sign with a message reading "Delores Motel & Restaurant". The actual location of the sign is 385 feet south of the intersection of Malacompra Road and State Road A1A, or 10.2 miles north of the intersection of State Roads 100 and A1A, in Flagler County, Florida. At that time, the property on which the sign was erected was owned by Malcolm Johnson. According to Jerrald D. Schatz, who is one of the motel owners, Motel Delores was given permission by Johnson for the sign to be erected on Johnson's property. In 1970, ITT Development Corporation (ITT) purchased Johnson's land. There is no indication in the record that ITT initially lodged any objections to Motel Delores continuing to have its sign located on ITT's property. The date on which DOT began regulating outdoor advertising signs is not of record. However, Motel Delores first learned of the need to obtain a sign permit in early 1977 when a DOT representative advised it that a permit was necessary. Accordingly, respondent made application with DOT for a permit on March 9, 1977, and was issued tag number 5697-02 on March 16, 1977. Thereafter, the tagged sign remained at the same location until March 1990. In 1984, ITT and DOT became embroiled in a civil action over ownership of land on and near State Road A1A where the two signs are now located. In 1986, the lawsuit was settled when DOT and ITT agreed to exchange land in the immediate area. As a result of that settlement, the land on which Motel Delores' sign was located was deeded from ITT to DOT and now constitutes right- of-way on State Road A1A. Without DOT's written permission, the placement of a sign on state right-of-way is prohibited. In March 1990, Motel Delores' sign and tag were stolen by unknown individuals. Within a few days, Schatz began erecting a new sign a few feet closer to A1A. By chance, a DOT sign inspector, William Terry, happened to be traveling on A1A and observed the new sign. After a preliminary investigation was conducted, including contact by DOT with ITT, Terry concluded that the sign was within fifteen feet of DOT right-of-way on a federal primary highway and the sign owner did not have ITT's written permission to have the sign at that location. The inspector was unaware of the fact that DOT and ITT had exchanged land some four years earlier and was under the impression that the land on which the sign was located belonged to ITT. Accordingly, on March 29, 1990, Terry posted a cease work order on the sign and recommended that a notice of violation be issued. The recommendation was accepted by the district administrator of outdoor advertising and a notice to show cause was issued on April 6, 1990. On April 23, 1990, Schatz filed a request for hearing with the DOT district office. In late February 1990 First Coast began erecting an outdoor advertising sign approximately 523 feet north of where the Motel Delores sign was located. In conjunction with this activity, on March 14, 1990, First Coast filed an application with DOT for a sign permit. However, A1A is designated as a part of the federal-aid primary highway system and state law prohibits two permitted signs from being located within 1,000 feet of one another on such a road. Because the DOT "inventory book" for permitted signs carried the tag number for the sign owned by Motel Delores, which was 523 feet south of First Coast's sign, the application was returned to First Coast on March 21, 1990, with a notation by the district administrator that it was "Dis-Approved" (sic). A short time later, Terry posted a cease work order on First Coast's uncompleted sign, and a notice to show cause was issued on April 6, 1990, on the ground the sign did not meet spacing requirements. However, because at that time Motel Delores' sign was on DOT right-of-way without DOT's permission, there was no lawful, permitted sign on the same side of the road within 1,000 feet of First Coast's sign and thus the notice was improvidently issued. Indeed, a DOT representative acknowledged at hearing that Motel Delores' sign was "illegal" at the time the notice to show cause was issued against First Coast. In view of this, First Coast's application for a sign permit should have been approved. On April 19, 1990, First Coast requested a hearing to contest DOT's preliminary decision. Among other things, First Coast contended that the Motel Delores sign was illegally erected and thus its sign met all spacing requirements. For reasons not of record, DOT did not forward this and Motel Delores' first request for hearing to the Division of Administrative Hearings until more than a year later. During this period of time, both respondents completed construction of their new signs and have continued to use them pending the outcome of these proceedings. Even so, DOT agreed at hearing that respondents should not be charged with violating the cease work orders posted on the two signs. On October 17, 1991, DOT advised Schatz by letter that it was "rescinding all violations issued under the (April 6, 1990) notice" because the notice had incorrectly identified the location of the sign as 385 feet north of Malacompra Road when in fact the actual location was 385 feet south of Malacompra Road. Schatz's happiness was short-lived, however, because DOT then issued another notice to show cause on November 1, 1991, alleging that the sign did not have a valid permit tag and was located on DOT's right-of-way. Motel Delores thereafter requested a hearing on November 8, 1991. On November 20, 1991, Motel Delores filed with DOT an outdoor advertising permit affidavit form in which it represented that its sign tag had been stolen and a replacement tag was necessary. The request was approved by DOT on January 14, 1992, and replacement tag number BF 209-25 was issued. On February 1, 1992, or less than a week prior to final hearing, DOT and Motel Delores executed a five year lease agreement whereby DOT agreed that the motel could keep its sign on DOT's property for $200 per year. According to Schatz, he had requested such a lease from DOT in late 1990 and it took more than a year for DOT to formalize the agreement.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the notices to show cause issued against respondents on April 6, 1990, and November 1, 1991, be dismissed with prejudice. It is further recommended that a sign permit be issued to First Coast Outdoor Advertising, Inc. for its sign erected on State Road A1A in Flagler County. DONE and ORDERED this 30 day of March, 1992, at Tallahassee, Florida. COPIES FURNISHED: DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30 day of March, 1992. Vernon L. Whittier, Jr., Esquire 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Gerald S. Livingston, Esquire Suite 1150 200 East Robinson Street Orlando, FL 32801 Jerrald D. Schatz 5992 North Oceanside Boulevard Hammock, FL 32137-2601 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, Agency Clerk 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding has been erected on a small parcel of land located approximately one-quarter of a mile west of First Street on Rockland Key, next to the southbound lane of U.S. 1, in Monroe County, Florida. This location is outside the city limits of any municipality. On approximately October 1, 1983, Mr. Frank Toppino, who is not a party to this proceeding and who was not presented as a witness at the hearing, leased the subject property to the Pier House Inn and Beach Club for one year. Under the terms of this lease, the Pier House Inn received the right to use the property for an outdoor advertising structure which the parties to the lease contemplated would be constructed there. The Pier House agreed to pay the sum of $950 to Mr. Toppino as rent for the year. In addition, the Pier House agreed to undertake construction of the sign on the land for the benefit of Mr. Toppino, the lessor, after the lease expires. The PIER House received the right to use this land for one year, and the right to place advertising copy of its choice on the face of the outdoor advertising structure for one year. The lease between Mr. Toppino and the Pier House Inn covering the subject property was received in evidence. This lease, and the testimony of the general manager of the Pier House Inn who executed it as lessee, which is detailed above, supports a finding of fact that Mr. Frank Toppino and not the Pier House was the owner of the outdoor advertising structure which is the subject of this proceeding on October 1, 1983. Subsequently, when the Department's Outdoor Advertising Administrator made his inspection of the subject sign, there was no state outdoor advertising permit affixed thereto, and the Department has not issued any permit for this structure. The sign was erected between two other permitted signs, and it is closer than 500 feet to both of these existing and permitted structures. The sign which is the subject of this proceeding is located adjacent to a federal- aid primary highway outside any incorporated city or town. It is visible from U.S. 1, and it is within 660 feet of the edge of the pavement of this highway. The Department's Outdoor Advertising Administrator made a determination that the Pier House Inn was the owner of the sign in question based upon information contained in a Monroe County Building Permit application, and based upon the hearsay information received during telephone conversations. However, this information is controverted by the direct testimony of the general manager of the Pier House Inn which is itself corroborated by the lease between Mr. Toppino and the Pier House which is in evidence. Thus, the testimony received from the Department's witness is not of sufficient quality to support a finding of fact that the Pier House Inn is the owner of the sign in question. Moreover, the Department has the burden of proof on this issue, and the quantity and quality of the evidence presented on the matter of ownership of the subject sign does not carry this burden.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the violation notice issued on December 12, 1983, to the Pier House Inn and Beach Club, be dismissed, without prejudice to the reinstitution of proceedings in which the violation notice is directed to the actual owner of the sign in question. THIS RECOMMENDED ORDER entered this 23rd day of August, 1984, 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 August, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
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.
The Issue Whether the Department of Transportation should is sue a permit under Chapter 479, Florida Statutes, for the subject outdoor advertising sign.
Findings Of Fact An outdoor advertising sign located 9.85 miles east of Volusia County line on Highway 1-4, East, with copy presently reading, "Four Seasons" was cited for violation by the Petitioner, Department of Transportation. Said violation notice was sent to the Respondent, Peterson Outdoor Advertising Company. The sign is located approximately 1200 feet north of State Road 430-A on the east side of 1-4 facing south and bears a 1974 state permit No. 6273-10. It is not disputed that this sign was owned by Rivers Advertising Company and sold by Rivers Advertising Company by Bill of Sale dated June 21, 1974 to the Petitioner, Department of Transportation. The sign did not conform to the requirements of Chapter 479, Florida Statutes, as evidenced by memorandum dated May 1, 1973, Department of Transportation files, Petitioner's Exhibit 1, and upon its sale to the Department was to have been removed by the Department from its location. The payment for the sign amounted to $4,975 which was paid by check to the owner, Rivers Advertising Company. Rivers Advertising Company had leased the real property on which subject sign stood from the property owner, Mr. Gene Berna. Mr. Berna said that Rivers Advertising Company had not paid under their lease agreement at the time that the Petitioner, Department of Transportation, sought to remove the sign subsequent to its purchase from Rivers on June 21, 1974 and would not let the maintenance crew remove the structure. Dandy Signs claimed ownership of the sign by virtue of the fact that Gene Berna sold it to then and that it purchased a renewal 1974 permit tag Number 6273-10-74 and affixed it to the structure. Dandy Signs had never made an application for a permit for subject sign but through error of the Petitioner acquired the permit sign attached to subject sign through the inclusion of it in a regular renewal procedure. Subject sign was not eligible to be permitted under the renewal procedure inasmuch as said sign had been purchased by the State of Florida on June 21, 1974 and Dandy Signs was not eligible for the renewal permit issued because it did not own the sign. Dandy Signs, claiming ownership for the sign through an agreement with the owner of the property on which the sign was located, then "sold" the subject sign by Bill of Sale to the Respondent, Peterson Outdoor Advertising, by an instrument dated May 27, 1975. The proposed Recommended Order filed by the Respondent has been examined and considered in the preparation of this order. The Hearing Officer further finds: The subject sign is owned by the Petitioner. The property owner, Gene Berna, had no title to the subject sign. His only interest was as lessor of the real property. Dandy Signs was on notice that the sign did not belong to the property owner, Gene Berna, and that it belonged to Rivers Outdoor Advertising. Berna told Dandy Signs the subject sign belonged to Rivers. Dandy Signs should not have requested a renewal permit on a sign not previously owned by it and not purchased from the owner. The Petitioner erroneously issued a renewal permit on subject sign upon Dandy's representation it was the owner of the sign. Respondent, Peterson Outdoor Advertising, received no interest in the sign by the alleged Bill of Sale of May, 1975, inasmuch as it did not buy the sign from the owner, the State.
Recommendation Deny the request for a permit. Remove the subject sign which is owned by the Petitioner and should be removed from the roadside. 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
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
