Findings Of Fact American Sign and Indicator Corporation (Respondent or ASI), and owner of the sign involved, has rebuilt a sign on State Road A1A 1.72 miles north of St. Johns County line in the vicinity of the Sheraton Inn and within the city limits of Jacksonville Beach, Florida. The construction resulted in a different type structure and not simply repairs to an existing sign which had previously been permitted by DOT. State Road A1A in the vicinity of this sign is federal-aid primary highway, and the sign requires a permit to be a lawful sign. This sign is a visual display sign with internal lighting to produce the message. The sign's internal lights present the name "Sheraton Inn" and the temperature on the display panel (Exhibit 4). In addition the panel can be programmed to produce any desired combination of letters or numbers, and thereby produce a message. This message can be displayed in the fixed mode or in a traveling mode. Since the matrix of lights comprising the message section is computer controlled, the various types of presentations can be programmed for the desired message and mode of presentation by sequencing the times the lights come on and go off. Prior to rebuilding this sign Respondent obtained a building permit from the City of Jacksonville Beach. At this time Respondent was unaware that a DOT-issued permit for this sign was also required.
Findings Of Fact The facts here involved are not in dispute. In 1966 Petitioner leased the property adjacent to Cypress Street in Tampa and erected a structure thereon on the 1-275 3.6 miles west of 1-4, containing signs facing both east and west. By application dated 20 October 1977 (Exhibits 1 and 2) Petitioner applied for permits for these signs. The applications were disapproved because of spacing. Likewise, on 20 October 1977, Petitioner submitted application for a permit for a sign on the 1-4 2.9 miles east of U.S. 41 with a copy of the lease dated 1967. This sign is located in Tampa and the application was also disapproved because of spacing. Both of these locations are zoned commercial and are within the corporate limits of Tampa, Florida. The structure on which the signs shown on Exhibits 1 and 2 were erected was built in 1968 and the sign involved in Exhibit 3 was built in 1967. The signs for which a permit was requested in Exhibits 1 and 2 is located 325 feet north of a permitted structure owned by Tampa Outdoor Advertising, Inc. on the same side of the street and facing in the same direction. The sign for which a permit was requested in Exhibit 3 is 275 feet west of a permitted sign facing the same direction and on the same side of the street which is owned by Foster and Kleiser. No appeal was taken from these disapprovals, but by applications dated June 19, 1979, Petitioner in Exhibits 4, 5 and 6 reapplied for permits for the same signs that had been disapproved in 1977. These applications were also disapproved because of spacing. The I-4 and the I-275 are part of the Interstate Highway system.
The Issue The issue is whether the easterly face of a V-shaped, two-faced sign located on Interstate-95 at the junction with the west bound exit ramp of State Road 836 has a proper permit from the Department of Transportation and whether that sign face violates spacing rules on interstate highways.
Findings Of Fact Hancock Advertising Agency owns a sign which is located immediately adjacent to Interstate-95 in the City of Miami at the point where State Road 836 and Interstate-95 meet. The structure and its advertising message is an outdoor advertising sign as defined in Chapter 479, Florida Statutes. The sign is visible from the main travelled way of Interstate-95. Interstate-95 is part of the interstate highway system as defined in Section 479.01(7), Florida Statutes. The structure is located approximately 10 to 12 feet inside the Department of Transportation's right-of-way fence. No State outdoor advertising permit has been issued for the sign face which is the subject of this litigation. The Hancock Advertising sign is only about 443 feet from the nearest legally permitted sign. Hancock Advertising received proper notice from the Department of Transportation of the outdoor advertising violations by mail and by posting a notice of violation on the sign.
Recommendation It is RECOMMENDED that the easterly face of the sign structure which is visible from the main traveled way of Interstate-95 be removed pursuant to Section 479.105(1), Florida Statutes. DONE and ORDERED this 18th day of December, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 December, 1987. FILINGS IN HANCOCK Petitioner's Covered in Finding of Fact 5. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 3. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 3. Not a Finding of Fact. Respondent's All facts contained in the Respondent's statement of facts have been adopted. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles C. Papy, III, Esquire PAPY, POOLE, WEISSENBORN & PAPY 201 Alhambra Circle, Suite 502 Coral Gables, Florida 33114 Raye N. Henderson, P.E., Secretary Department of Transportation ATTN: Eleanor F. Turner, Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
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 The issue for consideration is whether the Respondent's signs, bearing permits numbers AX762 and AX782, respectively, located adjacent to U.S. Highway 41 in Manatee County, Florida, be removed for the reasons set forth in the Department's Notices of Violation dated March 15, 1999.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation (Department) was the state agency responsible for the licensing and regulation of advertising along the highways of this state. Respondent, National Advertising Company, is a private company engaged in the outdoor advertising business in Florida. It owns numerous advertising signs placed at various locations adjacent to the roads in the Federal Highway System as well as state roads in this state. On March 11, 1998, Eugene Casey, an outdoor advertising inspector with the Department's Bartow, Florida, office, drove past a sign owned by Respondent and located on U.S. Highway 41 approximately 950 feet south of 73rd Street East in Palmetto, Manatee County, Florida. His examination of the sign in question revealed that it had no advertising copy on it, and it bore the permit tag with number AX782, which was issued to the Respondent. He also noted that the sign was closer than permitted to an adjacent sign, being only 408 feet away. This adjacent sign bore the permit tag number AX780, also issued to Respondent. The distance between the signs in question was measured by both Mr. Lowry and Mr. Casey. Mr. Lowry measured the distance utilizing a device in his vehicle which, he contends, was accurate to 2 feet in every 1,000 feet. Mr. Casey also used a similar device, but also utilized a walking wheel which he calibrated daily, and which he claims was exactly correct with no error. Even if the vehicle device with its 2-in-1,000 error ration were the only measurement taken, the degree of error is far less than that necessary to make any real difference in the spacing between 782 and 780, a distance of 408 feet. The Department rules require signs to be at least 1,000 feet apart. Mr. Casey also went past the sign in question approximately every two weeks during the succeeding 12 months and on no occasion did the sign display any advertising message. He took a photograph on March 11, September 15, and November 30, 1998, and also on March 24 and July 8, 1999. On none of these occasions had any advertising copy or a message of any nature been placed on the billboard. On the last occasion, he noticed that the face of the signboard had been painted to cover the apparent deterioration of the sign face. This deterioration, described as mildew and mold stains in both green and black was definitely not, as counsel for Respondent suggested, the remnants of an advertising message. On March 1, 1998, Mr. Casey also visited the sign bearing permit tag AX762, which was located on US Highway 41 approximately 590 feet north of Palmview Road in Manatee County. This sign was located on property zoned by the county as residential property. Under the rules of the Department, advertising signs may be erected only on property zoned commercial or industrial. As was the case with the previously mentioned billboard, AX782, Mr. Casey visited the site approximately every two weeks during the succeeding year and saw no message painted thereon. He took a photograph of the signboard on March 1, 1998, again on March 11, September 15, and November 30, 1998, and also on March 24, 1999. On none of those occasions did the signboard bear any advertising copy. Mr. Casey had no doubt at all that no message offering goods or services, or a public service announcement - in fact, no message of any kind was displayed on either sign. Respondent presented no evidence to indicate an advertising message had been displayed on either billboard during the period in question. Though not a matter properly in issue in this case, the Department established that both signs in question were nonconforming signs. The first, AX782, was nonconforming because it did not meet the applicable spacing requirements contained in the agreement between the state and the federal Departments of Transportation. The other, AX 762, was nonconforming because it was not located in an area designated primarily for commercial or industrial use under the county’s comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and conclusions of law, it is recommended that the Department of Transportation enter a final order revoking permits AX782 and AX762 and ordering their removal. DONE AND ENTERED this 12th day of January, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2000. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Thomas F. Barry, Secretary ATTN: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether Respondent properly denied Lamar Outdoor Advertising's Petition for Waiver or Variance from Florida Administrative Code Rule 14-10.007(2)(b).
Findings Of Fact Respondent 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 in accordance with Chapter 479, Florida Statutes. Petitioner owns and operates outdoor advertising signs in the State of Florida. In December 2004, Petitioner purchased four outdoor advertising signs adjacent to Interstate 4 in Polk County, Florida. The signs are located on lots zoned for residential use. In accordance with Section 479.111, Florida Statutes, signs adjacent to interstate highways and federal-aid primary roads are only authorized in commercial, industrial zoned or un-zoned areas. These signs are, therefore, not in conformance with Section 479.111, Florida Statutes, and are non- conforming signs. When initially permitted, the height from the ground to the bottom of the sign (referred to as "Height Above Ground Level" or "HAGL") for each of Petitioner's four signs was ten feet or less. The overall height of the signs from the ground to the top of the sign ranged from 34 to 37 feet. Respondent erected a sound attenuation barrier (soundwall) along Interstate 4 in Polk County, Florida. As a result, the signs were blocked from view by passing motorists. In August 2006, without seeking the permission of Respondent, Petitioner raised the HAGL of the four signs to a height of 18 to 23 feet above ground level to allow the signs to remain visible over the soundwall. In September 2007, Respondent issued Notices of Intent to Revoke Petitioner's permits for violations of Florida Administrative Code Rule 14-10.007(2). Previously, in 1972, an agreement was entered into between the State of Florida and the United States Department of Transportation to implement and carry out the Highway Beautification Act (HBA) by controlling outdoor advertising signs located along interstates and federal-aid primary highways. One of the purposes stated in the 1972 Agreement, was to allow Florida "to remain eligible to receive the full amount of all Federal-aid highway funds." In accordance with the Agreement, a determination that Florida failed to maintain effective control of outdoor advertising could result in a 10 percent reduction in federal highway funds. Florida Administrative Code Rule 14-10.007 was primarily drawn from the federal regulation language in 23 CFR 750.707, in effect since 1973, which provides as to non- conforming signs: (5) The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate non-conforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In November 2007, after receiving the Notices of Intent to Revoke Permits, Petitioner filed a Petition for Variance from Respondent to authorize the raising of these four signs blocked by a noise attenuation barrier. Thereafter, Respondent notified the Division Administrator for the Federal Highway Administration (FHWA) that a request for a variance had been received from Petitioner. By letter dated January 7, 2008, FHWA was asked (1) if it had developed any minimum criteria as to when a substantial change had occurred to a non-conforming sign as prohibited by federal regulations and (2) if no minimum criteria were established, whether a variance from an existing rule could be granted to allow a non-conforming sign to be increased in height as minimally necessary to be seen over a noise attenuation barrier. By letter dated February 5, 2008, FHWA responded that "a minimum Federal criteria has not been established," and "an increase in height is considered an expansion or improvement, which is not allowed for non-conforming signs." The letter concluded: To summarize, the HBA and its implementing regulations do not permit the adjustment of a non-conforming sign where action by the State transportation agency obstructs the visibility of the sign from the highway. As such, the FHWA would expect FDOT to deny the request for a variance from the provisions of Florida Administrative Code Rule 14- 10.007(2). FHWA's February 2008, correspondence was not its first attempt to address modifications to non-conforming signs. By letter dated June 15, 2000, FHWA informed the Florida Department of Transportation that non-conforming signs were not permitted to be raised to be seen over a noise wall, stating: Federal regulations require that non- conforming signs must remain substantially the same as they are on the effective date of the State law or regulations enacted to control them. FDOT is required to develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In this instance, we believe raising the sign above the wall would constitute a substantial change and appreciate that FDOT has come to the same conclusion. In September 2000, Respondent asked FHWA if non- conforming signs could be reduced in size or height when required by local ordinance. FHWA agreed to allow a reduction in height for non-conforming signs, if required by local ordinaces. Later in 2000, FHWA also authorized the addition of catwalks or other fall-protection devices to non-conforming signs provided such addition does not increase the structural integrity of the sign or prolong the life of the sign. Respondent's rules were amended accordingly to allow non- conforming signs to be reduced in size when required by a local ordinance and catwalks and other fall-protection devices to be added provided they did not increase the signs' structural integrity. Fla. Admin. Code R. 14-10.007(a)(2), and (2)(b)(1). In December 2003, Respondent sought FHWA concurrence on amending Rule 14-10.007 to allow sign owners to submit a request to raise a non-conforming sign when a noise attenuation barrier screens or blocks the sign. The text of the proposed rule provided that any requests approved by Respondent would be forwarded to FHWA for final acceptance. In March 2005, FHWA responded through a memorandum providing: "Guidance on Adjustment of Non-Conforming Outdoor Advertising Signs." As background, the memorandum noted: With the broader use of noise walls around the country, the conflict between HBA prohibition against substantial improvement of non-conforming signs and sign owners' demands to maintain sign visibility is arising with increasing frequency. In analysis and guidance, the memorandum stated: Current FHWA regulations permit a non- conforming sign to remain "at its particular location for the duration of its normal life subject to customary maintenance." 23 CFR 750.707(c). The intent of the HBA is to permit a non-conforming sign to continue in place until it is destroyed, abandoned, or discontinued, or is removed by the State (which can use 75 percent Federal funding for the removal of the sign). A non- conforming sign must "remain substantially the same as it was on the effective date of the State law or regulations" adopted to implement the HBA. 23 CFR 750.707(d)(5). A height increase is an expansion and improvement of a sign. In addition, increasing sign height to clear a noise wall typically will require new structural measures, such as a monopole design, that would be inconsistent with the concept of limiting non-conforming signs to the duration of their normal lives. The memorandum concluded with the admonition: "If a State fails to comply with the non-conforming sign provisions of the HBA, it will become necessary to evaluate whether the State is maintaining effective control." On February 25, 2008, Respondent entered an Order Denying Petitioner's Petition for Variance or Waiver, noting: "FHWA has consistently advised Respondent that any increase in height of a non-conforming sign would be a substantial change under the federal regulation." As the underlying purpose of the laws implementing Rule 14-10.007, was to implement and enforce the federal-state Agreement, the HBA of 1965, and federal regulations, Respondent concluded that "Petitioner has not offered any contrary basis for Respondent to conclude that the purpose of the laws underlying the rule can be achieved with a variance." The Order Denying the Petition for Variance or Waiver went on to state that Petitioner has not established a substantial hardship as the affected signs were all over 30 years old and represented only four of the 900 signs owned by Lamar Outdoor Advertising - Lakeland. Lastly, Respondent cited to several cases for the proposition that a sign owner does not have a right to be seen by passing motorists and concluded: Any value Petitioner derived from having signs visible from Interstate 4 was also based on an artificially created condition established in an exercise of the state's police power for the benefit of the traveling public. Principles of fairness do not compel Respondent to waive its rules and risk the loss of federal funds so that Petitioner can continue receiving the same state-sponsored benefit of passing motorists that the signs enjoyed before the soundwall was erected. Petitioner is subject to and affected by the rule in the same manner as every other sign owner who might wish to construct improvements to a non-conforming sign to enhance or maintain its economic vitality.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's Request for a Waiver or Variance. DONE AND ENTERED this 7th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 7th day of October, 2008.
The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the Notice of Illegal Sign dated September 17, 1987; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On September 17, 1987, the Department issued a Notice of Illegal Sign on Right-of-Way for an outdoor sign located in the water and adjacent to U.S. 1 approximately 1.39 miles north of Jewfish Creek Bridge, Monroe County, Florida. The sign in dispute was visible from the road and stated the following: Egan's Waterway Restaurant Gas Good Fast Food. Tourist Info M M 107 1/2 (Right after bridge) The sign did not have a state outdoor advertising permit attached to it. The sign was located approximately 85 feet from the centerline of the road. U.S. 1, also known as State Road 5, is designated as a federal aid primary highway in Dade and Monroe Counties. Egan Adams is manager and president of Egan's Waterway. Mr. Adams admitted he is the owner of the sign in dispute. The sign was mounted on a pontoon-type vessel and was anchored in knee- deep water. The vessel had been registered as a boat and identified by Florida 7454 FG. Prior to issuing the Notice of Illegal Sign, the Department's employee had warned Mr. Adams that the sign was located within the right-of-way. On or about September 19, 1987, Mr. Adams moved the sign further away from the road and removed the orange violation sticker which had been posted on it. The right-of-way in the vicinity of the sign in dispute is 200 feet wide. The centerline of the right-of-way corresponds to the centerline of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a Final Order assessing a fine of $75.00 against Egan Adams pursuant to Section 479.107, Florida Statutes (1987). DONE and RECOMMENDED this 1st day of April, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4495T Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted. Paragraphs 2-6 are accepted. The first sentence of paragraph 7 is accepted. The rest of paragraph 7 is rejected as a conclusion of law, argumentative. Paragraphs 8 and 9 are accepted. COPIES FURNISHED: Charles G. Gardner, Esquire 605 Suwannee Street Tallahassee, Florida 32301 Egan Adams Manager/President of Egan's Waterway Box 2, M.M. 107.5 Key Largo, Florida 33037 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Petitioner has applied for a permit, and proposes to erect an outdoor advertising sign on the east side of Interstate 110, 1.5 miles north of Fairfield Drive in Escambia County, Florida. This sign would face east and west, with the copy on the face which is the subject of this proceeding facing west. Interstate 110 is a north-south highway at the point where the Petitioner's sign is proposed to be erected. The Department of Transportation has issued two permits to Lamar Advertising for an outdoor advertising sign located on the east side of I-110, approximately 320 feet north of the site of the Petitioner's proposed sign. These Lamar Advertising permits are for the north face and the south face of the Lamar sign which can be read by traffic traveling both north and south on I-110. Although the Petitioner's proposed sign would face west, the copy would be visible to northbound traffic on I-110 and to some extent to southbound traffic there. The Petitioner's sign as proposed could be seen by the same traffic as can see the Lamar Advertising sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of A. Barry Shuck, d/b/a Designs Custom Signs, for a permit to erect an outdoor advertising sign on Interstate 110, 1.5 miles north of Fairfield Drive in Escambia County, Florida, be DENIED. THIS RECOMMENDED ORDER entered this 16th day of September, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 132301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1985. COPIES FURNISHED: Mr. A. Barry Shuck Designs Custom Signs 102 Pine Court Pace, Florida 32570 Charles G. Gardner, Esquire Haydon Burns Bldg. M.S. 58 Tallahassee, Florida 32301-8064 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
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 August 19, 1976, Petitioner's Outdoor Advertising Inspector inspected Respondent's signs located at 1038 N.W. 36th Street, Miami, Florida. The location is within the city limits of Miami. Northwest 36th Street is also U.S. Highway 27. Two signs of the Respondent each 6' by 12' facing east, one above the other, had been erected at the above location. A distance of approximately 135' separated Respondent's sign from the nearest other sign facing the same direction on that side of the highway. (Testimony of Conde, Stipulation, Exhibit 1) Respondent had applied for a permit for the signs on January 12, 1976, but the application was denied by Petitioner because they did not meet the spacing requirements of Section 479.111, F.S. (Testimony of Conde) Petitioner issued a Notice of alleged violations of Sections 479.07(1) and 479.111(2), Florida Statutes with respect to Respondent's above described signs on August 23, 1976.
Recommendation That Respondent's alleged violation of Section 479.07(1), F.S. be dismissed. That Respondent's sign located at 1038 N.W. 36th Street, Miami, Florida, be removed under the authority of Section 479.17, Florida Statutes, as not permitted under Section 479.111(2), F.S. DONE and ENTERED this 23rd day of November, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. O.E. Black, Administrator Outdoor Advertising Section Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Jeffries H. Duval, Esquire Office of General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Robert Korner, Esquire 4790 Tamiami Trail Coral Gables, Florida 33134
