Findings Of Fact A McDonald's sign visible to automobile traffic on the I-75 is located .08 miles north of CR-54 along the I-75, 934 feet into the interchange between the I-75 and CR-54 in Pasco County, Florida. The I-75 at this location is part of the federal interstate highway system and is outside an incorporated town or city. The sign has no permit tags attached and no permit tags have ever been approved for the site. The property on which this sign is erected is approximately 77' by 52' with the southeast corner cut off owned by McDonald's Corporation. The site is connected to the restaurant site by a 15 foot strip of land which intersects a proposed road 275 feet north of the restaurant site. The sign is 1122 feet from the restaurant as measured along the paved surface between the sign and restaurant. Between this sign and the restaurant along CR-54 is a Standard station, an Amoco station, a Circle K shop and a Days Inn. The closest businesses to the sign are Abe Chevron station and the Days Inn Motel. Respondent presented proposed plans evidencing an intent to construct a McDonald's playland on the property on which the sign is located, presumably as an integral part of the restaurant. However, at the time of the hearing the property served only as a site for the sign. McDonald's playlands have been developed as a selling tool for families traveling over interstate highways and are generally located adjacent to the restaurant so children occupying the playland can be monitored by the parents from inside the restaurant. Respondent's witnesses were aware of no McDonald's playland located other than immediately adjacent to the restaurant building. Construction of the playland at the site of the existing sign has never-been started due to construction, drainage and sewage disposal problems at the restaurant site.
Findings Of Fact The sign at issue in this case was the subject of an earlier administrative hearing conducted in DOAH Case Nos. 83-1180T and 83-1181T on November 8, 1984. That consolidated proceeding arose as a result of a notice of illegal sign issued by the Department against Herbert J. Shaw, Sr., and Donna Shaw, his wife, alleging they were the owners of a sign located on the State's right-of-way. The transcript of that formal hearing shows that the Department presented its case-in-chief and then rested. Those Respondents began presenting their evidence. A discussion was then held off the record, after which an announcement was made on the record that those Respondents had agreed with the Department's position, that they had withdrawn their request for an administrative hearing, and that the matter would be finally resolved in one of two ways: 1) those Respondents would purchase from the Department the amount of property required to eliminate any encroachment of the sign in question, or 2) the Department would remove the sign. The proceeding was then adjourned, and an Order Closing Files was entered by the assigned Hearing Officer of the Division of Administrative Hearings. On December 13, 1984, a document entitled Final Order was entered by the Secretary of the Department that provided, in part, as follows: Because the formal requests for hearing made by the Respondents have been withdrawn, it is ordered that these cases be dismissed. It is further ordered that the outdoor advertising signs be removed pursuant to agreement of the parties (R-31) if within a reasonable amount of time an agreement between the parties cannot be reached as to a price and amount of property to be conveyed to the Respondents to eliminate the encroachment of the Respondent's signs on the Petitioner's right-of-way. Thereafter, Mr. and Mrs. Shaw, Sr., and the Department did not pursue the purchase and sale of part of the right-of-way. Further, the Department did not remove the sign. It appears that none of the parties to that prior action treated the "Final Order" as a final order. Rather, 5 1/2 years later the Department issued a new Notice of Illegal Sign and advised Mr. and Mrs. Shaw, Sr., that they could request an administrative hearing to determine the merits of that Notice, which is the subject matter of this action. At the beginning of the April 25, 1991, final hearing, Respondents Shaw, Sr., moved to have the style of the case amended to substitute Herbert J. Shaw, Jr., Trustee, the successor property owner, as the Respondent. Upon correction of the style, the Department made an ore tenus motion to dismiss, asserting that the 1984 final order was dispositive of all issues in the current case. The hearing was adjourned to permit Respondent to investigate that assertion and file a memorandum in response to the motion. That motion was subsequently denied, and this cause was again noticed for final hearing. However, that hearing was cancelled to permit the parties to this cause to negotiate for the sale or lease of the Department's right-of-way to Respondent. Those negotiations proved unsuccessful, and the final hearing was re-scheduled for, and conducted on, December 23, 1992. The sign in question is located in front of a restaurant which is located on Respondent's property in Key Largo, adjacent to State Road 5 (SR-5), which is also known as U.S. Highway 1. SR-5 is a part of the State Highway System. The sign is within the Department's SR-5 right-of-way. The outdoor advertising sign in question has been in the same location since 1973. Although it appears that a permit was obtained by Respondent or by his father from Monroe County, no permit for the sign was ever applied for or obtained from the Department. In 1972 or 1973, Respondent or his father presented to the Department a survey in conjunction with an application for driveway permits. Although that survey noted in some fashion the location of the sign in question, the location of the sign was not specifically brought to the attention of the Department's employees reviewing the application for driveway permits. Neither Respondent nor his father intentionally or knowingly placed the sign within the Department's right-of-way. It appears that the source of the error may have been a survey performed around 1972 which utilized a Florida Keys Aqueduct Authority plan sheet to determine the location of the Department's right-of-way. Those plan sheets have never been relied upon by the Department to show the location of its right-of-way, and no evidence was offered that the Department was the source of any erroneous information which may have been included on that plan sheet. The Department itself has made no representation which would have suggested to Respondent or to his father that the outdoor advertising sign was not located within the Department's right-of-way. On December 21, 1992, Petitioner filed its Notice of Intent to Seek Costs and Attorneys Fees. At the final hearing, the Department offered no evidence as to any costs or attorneys fees incurred by it, or the reasonableness thereof. Since the Department has thereby abandoned any claim to costs and attorneys fees pursuant to Rule 1.380(c), Rules of Civil Procedure, no findings regarding the entitlement thereto or the reasonableness thereof are made in this Recommended Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent's outdoor advertising sign to be located within the Department's right-of-way and requiring its removal. DONE and ENTERED this 3rd day of March, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of March, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5260T Petitioner's proposed findings of fact numbered 1-3, 5, 6, 10, 15, and 16 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered 7-9 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 11-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1, 2, 4, and 6-9 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 3, 10, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Herbert J. Shaw, Jr. Post Office Box 507 Key Largo, Florida 33037 Ben G. Watts, Secretary Attn: Eleanor G. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue to be resolved in this proceeding involves whether the Respondent's certification to practice contracting should be subjected to disciplinary action for alleged violations of Section 489.129(1), Florida Statutes, and, if the violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing, administering, and regulating the practice standards and licensure standards for the construction industry in Florida. This authority is embodied in the various provisions of Chapters 489, 455, and 120, Florida Statutes, and rules promulgated pursuant thereto. The Respondent is a licensed general contractor in the State of Florida having been issued license number RG0060516 and is registered to conduct contracting business in his individual capacity. On July 2, 1990, a contractor, Lonnie J. Walker, notified the Building Department of the City of Tallahassee that he had withdrawn as contractor for a job located at 722 Dunn Street, in Tallahassee, Florida. He thereupon withdrew the building permit he had obtained for the work being performed at those premises. On August 8, 1990, the Respondent contracted with Mary N. Spencer, the owner, to make certain repairs at the two-unit apartment building located at 722 Dunn Street, Tallahassee, Leon County, Florida. The contract price agreed upon between the Respondent and Ms. Spencer was $867.00. The Respondent thereupon performed some of the aforementioned contracting work, consisting of repairs of various types. He was not registered to contract in Leon County, Florida, however. The Department of Growth and Environmental Management of Leon County, Florida, is responsible for issuing construction contractor licenses for the County, including for the City of Tallahassee. There was no proper building permit issued for the job and job site when the Respondent entered into the contracting work at those premises. The Respondent failed to obtain a permit for the repairs and this ultimately came to the attention of the City of Tallahassee Building Department. That agency issued a stop work order on September 5, 1990. The Respondent was not performing work pursuant to Mr. Walker's previous permit, which had been withdrawn. The Respondent was not an employee of Lonnie J. Walker, the previous general contractor for the job. The Petitioner agency submitted an affidavit after the hearing and close of the evidence, with its Proposed Recommended Order. That affidavit asserts that the Petitioner accumulated $458.10 in investigative costs and $2,491.30 in legal costs associated with the prosecution of this case, for a total alleged cost of prosecution of $2,949.40. It moves, in its Proposed Recommended Order, that payment of the costs should be made in accordance with Section 61G4-12.008, Florida Administrative Code. The request for costs was first raised as an issue in the Proposed Recommended Order submitted by the Petitioner and is advanced only in the form of a hearsay affidavit. No prior motion for costs served upon the Respondent is of record in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board finding the Respondent guilty of the violations charged in the Administrative Complaint and assessing a penalty in the form of a letter of guidance and an aggregate fine of $600.00, as described with more particularity hereinabove. DONE AND ENTERED this 9th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-591 Petitioner's Proposed Findings of Fact 1-8. Accepted. Respondent's Proposed Findings of Fact Respondent submitted no post-hearing pleading. COPIES FURNISHED: G.W. Harrell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Julius S. Baker, Sr. Box 253 Morrow, GA 30260 Mr. Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact At all times pertinent to this proceeding, Respondent was a closely held corporation owned and operated by Salvatore Studiale and his family, including his wife, Celia, their son Jack Studiale and their daughter, Caroline Greenlaw. Respondent owns and operates Tropical Acres Steak House, a restaurant located in Broward County, Florida. Respondent erected a sign in 1975 in Broward County ninety feet north of Griffin Road adjacent to I-95 that is the subject of this proceeding. In a 1976 proceeding involving the same parties to this proceeding, Petitioner cited the same sign that is the subject of these proceedings for having been erected without certain permits in violations of Sections 479.02, 470.07(1), and 479.111(2), Florida Statutes (1975). Thereafter the case was referred to the Florida Division of Administrative Hearings (DOAH) and assigned DOAH Case No. 76-473. A formal administrative hearing was held in Case No. 76- 473 by a DOAH Hearing Officer who entered a Recommended Order. The following findings of fact, taken from the Recommended Order entered in Case No. 76-473, are consistent with the evidence presented before me and are hereby adopted as my findings of fact: In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 8, 1975. The property deeded to Broward County was of a value of approximately $18,000. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks [and] Seafood 1/2 Mile". Investigation by Petitioner's representatives in the Spring of 1976 revealed that no state permit had been applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee". The Hearing Officer in Case 76-473 concluded that the subject sign was exempt from Petitioner's permitting requirements: ... because Section 479.16(11)1/ excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" (sic) adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls with the exception stated above. The Hearing Officer in Case No. 76-473 recommended that "the allegations against Respondent be dismissed". Thereafter on August 12, 1976, Petitioner entered a Final Order in Case 76-473 which found that the findings of fact and the conclusions of law contained in the Recommended Order were correct and adopted the Recommended Order as its Final Order. The site of the subject sign had been the location of a gasoline service station before the Studiales purchased the property. When the sign was erected, the site was located in unincorporated Broward County. In July 1990 the site was annexed so that at the time of the formal hearing the sign was located within an incorporated municipality. In 1978, Respondent's sign was damaged by a wind storm. With Petitioner's approval, the sign was restored. On June 13, 1991, Petitioner's investigators inspected the subject sign. At an undetermined time between 1978 and June 13, 1991, a strip was attached to the supporting posts beneath the main faces of the sign so that two additional sign faces, one facing north and the other south, were created. The message that was placed on each face of this smaller sign was "1/2 Mile West" together with directional arrows. This addition was for the purpose of directing traffic to Respondent's restaurant, which was located 1/2 mile west of the sign. The directional message on each face of the smaller sign was removed prior to the formal hearing that was held in this proceeding. No permit for the sign has been applied for by Respondent or the Studiales and no permit has been given by Petitioner. Petitioner does not charge any permit fee for a sign unless a permit has been issued. There was a dispute as to whether Respondent had been charged and had paid annual fees for the subject sign. The greater weight of the evidence establishes that in 1986 and 1987 Respondent received billings from Petitioner for the subject sign as a result of computer error and that Respondent paid those billings. It is clear, however, that the Studiales were aware that no permit had ever been issued for this sign and that they relied on the determination made in Case 76-473 that the sign was exempt from permitting. Respondent has attempted to establish that it has placed great reliance in making its business plans on Petitioner's representations and assurances that the subject sign was a legal structure. Although it is clear that the subject sign is important to Respondent's business because it serves to direct customers to the restaurant location, Petitioner's delay in challenging the legality of the sign has not prejudiced Respondent. Respondent has been benefitted by the continued existence of the subject sign. The size of the sign exceeds 10 square feet. On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for the subject sign, based on its determinations that the sign was not exempt from pertinent permitting requirements, that it did not have a permit, and that it was improperly spaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that the status of Respondent's sign is "nonconforming" and which rejects Petitioner's contention that the sign is illegal. DONE AND ORDERED this 2 day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2 day of April, 1992.
