The Issue With respect to DOAH Case No. 99-3345T, whether the Respondent must remove the double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, for the reasons set forth in the Notice of Violation - Illegally Erected Sign, dated March 31, 1999. With respect to DOAH Case No. 99-3346T, whether the Respondent's permits for a double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, and bearing permit numbers AZ346-35 and AZ347-35, should be revoked for the reasons set forth in the Notice of Violation - Maintenance of Nonconforming Signs dated March 31, 1999.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999). National Advertising 2/ is the owner of a double- faced outdoor advertising sign located in Palm Beach County, Florida. The sign is located on the west side of Interstate 95, 1.25 miles south of North Lake Boulevard. At the time the structure was erected, the sign faces were visible to both southbound and northbound traffic of Interstate 95. At the times material to this proceeding, the sign at issue was a non- conforming sign. At the times material to this proceeding, the sign structure consisted of seven wooden poles placed in the ground and secured by concrete. Two metal heads, the sign faces themselves, were attached to the poles, one facing north and one facing south. The structure also included a metal catwalk providing access to the sign faces, as well as miscellaneous trim and equipment. At some time prior to the incidents giving rise to these proceedings, a sound wall was erected by the Department along Interstate 95, which blocked visibility of the National Advertising sign face by northbound traffic. In March 1999, National Advertising determined that the existing wooden poles supporting the sign heads were deteriorating and needed to be replaced. In addition, National Advertising decided to raise the height-above-ground-level ("HAGL") of the sign to maintain the same visibility of the sign face by the northbound traffic as that which existed before the sound wall was erected. Consequently, National Advertising contracted with a company to relocate the poles and transfer the existing sign faces and attached equipment to the new poles. Holes were dug approximately five feet from the original wooden poles, and new wooden poles were set in these holes. A crane lifted the sign faces and the attached trim and equipment and supported them while the old wooden poles were cut down slightly above ground level. The crane then moved the sign faces and the attached trim and equipment to the new poles, and the assemblage was bolted to the new wooden poles. The original wooden poles supporting the sign heads were approximately 12-to-13 inches in diameter, and the HAGL of the original sign faces was approximately 24 feet. The new wooden poles were approximately 20-to-22 inches in diameter, and the HAGL of the sign faces was raised to approximately 50 feet. The structure of the sign was not altered, and the materials used in the sign faces were not altered. The poles supporting the sign faces can be changed as part of the routine maintenance of an outdoor advertising sign, as long as the new posts are of the same material and configuration; the replacement of deteriorating poles is standard industry practice and is required to maintain the safety of the sign. The sign must, however, stay in the same relative location on the ground as the old sign. It is standard industry practice to place new supporting poles a few feet away from the exact location of the old supporting poles in order to provide a firm foundation for the new poles. The Department uses the term "remove" in its notices of violation as a "general term" meaning "[t]o move [a sign] away from the site, to move it any distance away from where it was installed previously." 3/ Nonetheless, the charges in the Notices of Violation issued in these cases were based on the Department's mistaken conclusion that National Advertising "cut down the entire sign, discarded it and built an entire new sign in its place." 4/ The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the permitted outdoor advertising sign was removed from its original location and re-erected. Because it has not established with the requisite degree of certainty that the sign was re-erected, the Department cannot sustain its charge that the outdoor advertising sign at issue herein was erected without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the Notice of Violation - Illegally Erected Sign in DOAH Case No. 99-3345T and dismissing the Notice of Violation - Maintenance of Nonconforming Signs in DOAH Case No. 99-3346T. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 18th day of September, 2000.
The Issue Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code. The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge. The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida. The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign. The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida. Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west. The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction. The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads: "479.07 Individual device permits; fees; tags.-- Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04." The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit. The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway. The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy. In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence. Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs. (In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.) The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected. Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign. Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.) Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814. Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement. It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states: "14-10.04 Permits. Permit Approval Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant. The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature. Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser. Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states: "14-10.04 Permits. Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within 30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible but not readily accessible by the general public." At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
Recommendation It is recommended that the signs located at State Road 814 and State Road 84 that are the subject matter of this dispute be removed. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Nancy Severs, Esquire Miller, Squire & Braverman 500 Northeast Third Avenue Fort Lauderdale, Florida 33301 =================================================================
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, 1-10, was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact The subject sign is located 0.8 mile east of State Road 71 on 1-10. This sign was inspected in October, 1980, by an inspector of the Department of Transportation, who observed that the sign's message was visible from the main traveled way of 1-10 and did not bear the permit required by Chapter 479, Florida Statutes. At the time of this inspection, 1-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The sign was located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, a name plate identifying Henderson Signs as responsible for the sign was attached to the sign. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See file, Case No. 81-100T. The foregoing facts establish that the subject sign is a sign regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the sign. Gene Henderson testified concerning the erection of the poles and the attachment of a sign face to the poles. The sign poles were erected during the latter portion of 1975, and a sign face advertising Ramada Inn was affixed to the poles on November 24, 1977. On August 1, 1980, the sign face was changed to one advertising "Regular diesel this exit." The sign is owned by Henderson Signs, which erected the poles prior to the time 1-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of 1-10 along which the subject sign is located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 5, an aerial photograph of the section of 1-10 along which the subject sign is located. This photograph bears the number PD 199 6 and is Sheet 8 of 28 sheets taken on December 29, 1976. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the sign 0.8 mile east of SR 71 on 1-10. The photograph was examined by the Department's engineer, who did not observe the presence of poles or an outdoor advertising sign at the location. The photograph was taken nearly one year after the date Henderson stated the poles were erected but does not reveal the presence of the poles. Even if one assumes they were erected, a sign face was not attached until November 24, 1977, more than one month after 1-10 was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within 30 days and without compensation to the sign owner. DONE and ORDERED this 16th day of September, 1981, 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 16th day of September, 1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
The Issue 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 The central issue in this case is whether the Respondent is entitled to a sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether the sign which has been erected at that location is in violation of applicable provisions of Chapter 479, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs. The Respondent owns or controls an outdoor advertising sign (subject sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the centerline of I 4. The sign face and direction of the subject sign are visible from I 4 following that route as it is normally traveled, i.e. on the main-traveled way. The subject sign is no more than 480 feet from the interchange at Fairbanks and I 4. The subject sign was erected in June, 1979, when SR 424 was not designated a federal aid primary road and a state permit was not required. On May 17, 1979, the Department's then district sign coordinator issued a letter to Respondent in response to Creative Media's sign permit application which provided that "a state permit is not required at this time." (e.s.) The Respondent's application in 1979 specified that the sign location was not within city limits which is presumed true for purposes of this record. Further, the 1979 application specified that the sign would be located .1 of a mile (presumably 528 feet) from the intersection. That description of the proposed sign is also presumed true. Subsequently, Fairbanks became a part of the state highway system and a requirement for outdoor advertising permits for signs erected along that roadway became effective. The sign face for which the present permit is sought is within 500 feet of the I 4 interchange. On January 30, 1990, Inspector Dollery photographed the subject sign which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental Apartments at Heathrow". When Inspector Dollery visited the location on January 3 and 4, 1991, the sign face was painted white with only a telephone number (425-5100) depicted. On February 5, 1990, the Department's current district outdoor advertising administrator issued a notice of alleged violation regarding the subject sign. On February 26, 1990, the Respondent filed an application for a permit for the sign face in dispute. The 1990 application acknowledged that the sign was 480 feet from the I 4 intersection. The Department returned the application as not meeting the spacing requirements for signs facing I 4 and for being less than 500 feet from the interchange. POA Acquisition, an outdoor advertising company, holds permits for signs located on I 4 which are within 1500 feet of the subject sign.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign in violation of the rule as set forth in the notice of alleged violations dated February 5, 1990, and denying the permit application of the Respondent. DONE and ENTERED this 22nd day of April, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1991. APPENDIX TO CASE NO. 90-2193T RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 3 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: The six unnumbered paragraphs are addressed in the order presented. The first paragraph is accepted. The second paragraph is accepted. The first sentence of the third paragraph is accepted. The second sentence of the third paragraph is rejected as contrary to the weight of the credible evidence or irrelevant if intended to establish that a DOT official told Mr. Fekete to retain paperwork. The fourth paragraph is rejected as contrary to the weight of the credible evidence. If the sign had been constructed as represented on the application, the fifth paragraph could be accepted; however, Respondent did not build the sign as stated in the 1979 application nor can it be determined from this record whether the spacing requirements along I 4 could have been met in 1979. Certainly, for a sign facing on Fairbanks, the spacing requirements could have been met. The distance from the interchange is ultimately why Respondent's application would have failed in 1979 if accurately requested. Consequently, as drafted, the fifth paragraph must be rejected as contrary to the weight of the evidence. The sixth paragraph is accepted. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida 32801 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S.58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Did the Department of Transportation (Department) properly issue the Notice of Denied Application pursuant to Chapter 479, Florida Statutes, and Rule 14-10.004(1)(d), Florida Administrative Code?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The sign structure which is the subject matter of this proceeding was originally erected prior to November 11, 1971, at the intersection of I-75, an interstate highway, and SR 52, in Pasco County, Florida. Both I-75 and SR 52 are roadways under the Department's jurisdiction for purposes of enforcing and regulating outdoor advertising sign structures. The original sign structure had one sign facing which faced north. The interchange of I-75 and SR 53 is located outside of the incorporated area of any town or city. The Federal-State Agreement (Agreement) which provides the Department with the authority to regulate outdoor advertising was adopted in 1972. When the Agreement was adopted, it contained a rule which provided, inter alia, that any sign structure located outside of the incorporated area of any town or city could not be located adjacent to or within 500 feet of a restricted interchange or intersection at grade. That rule has now been codified in Rule 14-10.006(4)(e), Florida Administrative Code. At the time it was given authority to regulate outdoor advertising, the Department took an inventory of all existing sign structures. Those existing sign structures that did not conform to the rules set forth in the Agreement were "grandfathered in" as legally nonconforming signs and allowed to remain at their current locations. National's sign structure, which is the subject matter of this proceeding, contained only one sign facing which faced north. National's sign was "grandfathered in" as a legally nonconforming sign structure. National's sign was nonconforming because it was not located within an incorporated town or city and was located adjacent to or within 500 feet of a restricted interchange. Some time prior to l973, National's sign was issued state permit number 1417-10. In 1973, National's sign permit number was changed to AU061-35 which is the permit number currently assigned to National's sign structure. On July 9, 1998, National submitted an application for an outdoor advertising sign permit for a proposed sign facing, which was to face south, to be constructed on the existing nonconforming sign structure under permit number AU061-35. National's existing permitted sign structure has a sign facing which faces north and is located at the intersection of I-75 and SR 52 in Pasco County, Florida. The addition of a south sign facing to the existing legally nonconforming sign structure would create a back-to-back sign structure. The application as submitted by National was incomplete in that National failed to include in its application proof of local government approval. At the hearing, National produced proof of local government approval for the south side facing requested in the permit application. On July 22, 1998, the Department issued a Notice of Denied Application to National citing the following reasons for the denial: 14E Site is within 500 feet of a restricted interchange or intersection at grade (S. 14- 10.006(1)(b)5., FAC). * * * 14I Other -- No local government approval. The permit application did not include local government approval at the time it was submitted to the Department. However, the Department did not return the permit application as being incomplete. Subsequently, National obtained local government approval. National's existing legally nonconforming sign structure is located within the restricted area of the I-75 and SR 52 interchange in that it is located adjacent to the on-ramp carrying traffic from SR 52 to the southbound lanes of I-75 and is within 500 feet of the interchange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order denying Petitioner's application for a sign permit at the location requested in the permit application previously filed by National. DONE AND ENTERED this _25th_ day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 _25th_ day of June, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Jennifer Sloane, Esquire Livingston and Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
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. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 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 El Okey 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 south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. 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 El Okey 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. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that 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 admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs 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 subject 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 Whether respondent's nonconforming sign was destroyed by an Act of God, and therefore its license should be revoked, or whether respondent's sign was merely damaged and the action taken by respondent constitutes reasonable repair and maintenance of the sign.
Findings Of Fact Harvey's Groves, Inc. is a citrus grower, shipper and retailer. Harvey's Groves has three retail stores in Brevard County. Ten billboards advertise these stores. Two signs advertise the store located at the intersection of I-95 and State Road 50. One of those signs is located one mile north of the intersection and advertises to traffic headed south. The other sign, which is the sign involved in this dispute, is located five miles south of the intersection. It is designed to advertise to northbound motorists, especially tourists on their return trip north. This sign has been in existence since the mid or late sixties. Respondent holds DOT sign permit number 7865-10 for the sign located five miles south of the intersection of I-95 and state road 50. The sign is a nonconforming sign as defined in Chapter 479, Florida Statutes. The sign is located in an area zoned agricultural, and thus would be prohibited except for its nonconforming status. On December 14, 1985, the sign was blown down by a windstorm. All six of the poles which supported the sign snapped a few feet above the ground and below the face of the sign resulting in the rest of the sign structure falling flat on its back. Other than the snapped poles, the sign was only slightly damaged. The two stringers on the top left hand corner of the sign and the top stringer on the right end of the sign had been broken but the remainder of the structure was basically intact. The sign face was still attached to the structure. The majority of the sign face had not been damaged. Mr. Harvey, the only person who saw the sign face prior to its repair, testified that two of the 4' x 8' panels had cracked but were still usable. However, the pictures of the old sign face, introduced-into evidence by respondent, showed that three 4' x 8' panels were missing from the sign face and apparently needed to be replaced. Further, two panels that were in the sign face at the time the pictures were taken contained no copy, and thus appeared to be replacement panels, but no evidence was presented to explain the blank panels. Prior to December 14, 1985, the sign consisted of a 14' x 40' rectangular sign face, with "cutouts" or embellishments which extended the height of the sign at certain points, attached to a sign structure consisting of six perpendicular poles and seven horizontal stringers. The sign face was attached to the stringers which ran the width of the sign. The stringers consisted of 2" x 4" boards which were nailed or spliced together to run the 40' width of the sign. A 2" x 4" board does not come in a 40' length. The poles extended approximately 18 feet above ground level; however, additional boards had been attached to the top of the poles so that the top of the sign extended above the top of the poles. The top two horizontal stringers supporting the sign face were located above the top of the pole that was measured as extending 18 feet above ground level. (R.Ex.#4) The HAGL, or height above ground level, of a sign is measured from the ground to the bottom of the sign face. Immediately prior to December 14, 1985, the HAGL of the sign was approximately 10 feet. However, the evidence was conflicting as to whether the HAGL had always been the same. Mr. King testified that the HAGL was measured in 1976, and at that time the HAGL was five feet. However, although Mr. King personally measured the sign, his testimony was not based on his personal knowledge of the measurement, but was instead based on his recollection of what the DOT records indicated the sign measured. The only record of DOT introduced into evidence, the Outdoor Advertising Inventory Update Listing, listed the HAGL at four feet. However, the computer printout listing alone is not sufficient to establish the HAGL of the sign because there was no competent evidence establishing the source, date, or reliability of the information. Further, other evidence is inconsistent with a 4-foot HAGL. Mr. Wright measured one of the broken poles and determined that the part of the pole still standing was four feet from the ground level to the break on top. However, petitioner's exhibit number 8, which shows the measured pole, notes the location of a 1964 permit tag affixed to the pole. The permit tag is not located on the 4-foot portion of the pole that is still standing; it is located on the portion of the pole that had broken off, and it is located well above the break. Thus, it is apparent that the HAGL could not have been four feet because that would put the permit tag behind the sign face. Petitioner argues that the HAGL had to be only four feet because the broken pole measured 18 feet above ground level and a 14-foot sign face on an 18-foot pole would leave only four feet between the bottom of the sign face and the ground. However, petitioner's argument is premised on the assumption that the top of the sign face was level with the top of the pole. There was no evidence presented to support this assumption. To the contrary, as found in the proceeding paragraph, the evidence clearly indicated that the top of the sign face was located above the top of the pole. Thus, in that there was no competent evidence to the contrary, the testimony of Mr. Harvey, that the HAGL has always been the same, is accepted, and it is found that the HAGL of the sign at all pertinent times prior to December 14, 1985, was approximately 10 feet. Prior to December 14, 1985, the sign was well maintained and in good condition. Every year in October or November the sign was checked to determine if any repairs were necessary. Every two or three years the sign was painted. On December 14 or 15, 1985, Mr. Harvey was advised that the sign was down. He went to the location and found the sign intact, flat on its back, and all six poles broken. Since the sign was down, Mr. Harvey had the sign face removed and taken to Harbor City Signs for painting. About three weeks after the incident, respondent installed six new poles that were 30' in length and extended about 24' above ground level. Respondent put all new stringers on the poles because it was easier and faster to put up new stringers than to remove the stringers from the old poles and put them on the new poles. Because the sign is responsible for a substantial amount of respondent's business, respondent's major concern was to get the sign back up as soon as possible. On January 21 and 22, 1986, Mr. King went to the location. He observed that the old sign structure was on the ground and that a new sign structure, with all new stringers and poles, had been erected. The new structure had nine stringers and the bottom stringer was approximately ten feet above the ground. The sign face had not been attached to the new structure. Mr. King placed a stop work order on the structure. When respondent was ready to attach the repainted sign face, apparently a short time after Mr. King's inspection, the stop work order was discovered. Thereafter, and apparently in an attempt to comply with what he perceived the DOT rules to be, Mr. Harvey had the new stringers removed from the new poles and had the stringers from the old structure affixed to the new poles. The new structure contained 10 horizontal stringers supporting the-sign face, one of which was new material. The cutout was also supported by a new horizontal stringer and a new perpendicular stringer. (P.Ex.10 and 12) The sign face was attached to this structure in March of 1986. The repainted sign face was essentially the same as it was prior to the accident, except that at the bottom, where it previously had stated "Indian River's Finest Citrus", the sign stated "Next Exit Florida's Best." The HAGL of the reerected sign was approximately the same as the old sign. Although Mr. King testified that the new HAGL was about 12 feet and Mr. Wright testified that the new HAGL was from 12-14 feet, their testimony was simply what they estimated the HAGL to be. Mr. Clayton, who actually affixed the stringers and repainted sign face, testified that the repainted sign face was placed at the same height above ground level as it had been before. Further, the photos taken of the sign in March and July (P.Ex.#5 and #10) do not support a finding that the new HAGL was 12-14 feet. Even if the measurement of 28 1/2 feet drawn on petitioner's exhibit number 10 were accurate, and there was no testimony revealing how this figure was derived, it is not useful in determining the HAGL since it purports to measure the distance from the top of the cutout to the ground. The 14' height of the sign does not include the height of the cutout, and there was no testimony to establish how many feet the cutout added to the height of the sign. Therefore, the testimony of Mr. Clayton is accepted as being the most competent evidence regarding the new HAGL. Thus, the HAGL on the sign after the sign face had been replaced was approximately 10 feet. After the sign face was attached in March, the sign looked about the same as it had prior to December. The sign's location in relationship to the road was the same and the HAGL was approximately the same. There was no increase in visibility. As Mr. King testified, there was no significant difference in the way the sign looked after its repair and the way it looked prior to December 14, 1985. There was no evidence presented concerning the actual cost expended by respondent to repair or rebuild the sign. There also was no evidence presented concerning the depreciated value of the sign prior to December 14, 1985. The only evidence presented as to cost was an estimate of the cost to replace the six poles. It was estimated that a new pole would cost about eighty or ninety dollars and that it would cost about thirty dollars per pole to have the poles placed in the ground.
Recommendation It is, therefore, RECOMMENDED that the Department of Transportation's violation notices seeking revocation of sign permit number 7865-10 be dismissed and that permit number 7865-10 remain in effect as a permit for the nonconforming sign located five miles south of the intersection of I-95 and State Road 50. Respectfully submitted and entered this 2nd day of March, 1987, in Tallahassee, Florida. DIANE A. GRUBBS 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 2nd day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0967T Rulings on Petitioner's Proposed Findings of Fact: Accepted in paragraph 2. Rejected as stated in paragraphs 5 and 6 as not supported by competent, substantial evidence. Accepted, except evidence showed seven stringers, in paragraph 5. Accepted in paragraph 2. Accepted, except as to date, in paragraph 3. Accepted in paragraphs 8 and 9. Accepted generally in paragraphs 9 and 10. Accepted in paragraph 4. Rejected as not supported by competent, substantial evidence in paragraph 11. Rulings on Respondent's Proposed Findings of Fact and Conclusions of Law: 1-2. Accepted in paragraph 1. Accepted in paragraph 2. Rejected as irrelevant since only the depreciated value of the structural materials in the- sign is relevant. Rejected as irrelevant. Accepted generally in paragraphs 5 and 6. Accepted in paragraph 7. 8-9. Accepted generally in paragraphs 3 and 4, except as to number panels replaced and damage to stringers. Whether panels could have been reused is irrelevant. Rejected as irrelevant (see ruling on paragraph 4). Rejected as not supported by competent, substantial evidence and contrary finding in paragraph 8. Rejected as irrelevant. Accepted except as to date in paragraph 9 and in Background section. Accepted generally in paragraph 10. Rejected as irrelevant since only actual costs of new materials is irrelevant. Rejected as irrelevant. Accepted as stated in paragraph 10. Accepted in paragraph 12. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Victor M. Watson, Esquire 1970 Michigan Avenue Building C Cocoa, Florida Kaye Henderson, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
The Issue The Administrative Complaint in this cause charges that the subject sign violates Sections 479.071 and 479.021(a), Florida Statutes, and Rule 14-10.09, Section 3, Florida Administrative Code, which is the same as Rule 14- 10.06(b)(2)(b), Florida Administrative Code, supra. The Respondent admits ownership of the outdoor advertising structure and that it does not bear a tag as required by Chapter 479, Florida Statutes; however, the Respondent asserts that the sign in question qualifies as an exception and is entitled to a tag pursuant to the provisions of Section 479.111, Florida Statutes. The Petitioner asserts that the sign does not qualify for a tag and stipulates that had the Respondent applied for a tag that said application would have been denied. The Respondent also contends that the sign is exempt from operation of the outdoor advertising law in all respects pursuant to the provisions of Section 479.16(1), Florida Statutes. Based upon the foregoing, the following issues of fact are raised: Is the subject sign an on-premises sign for purposes of the exemption stated in Section 479.16(1), Florida Statutes, and Is the sign located in an unzoned commercial or industrial area as defined by Section 479.111(2) and Rule 14- 10.06(b)(2)(b), Florida Administrative Code, and Does the subject sign meet the spacing requirements set forth in Rule 14-10.06(b)(2)(b), Florida Administrative Code?
Findings Of Fact The parties stipulated to the facts as found in paragraphs 1 through 9 below. The subject advertising structure is an advertising sign as defined by Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. The subject sign is located in Jackson County, Florida. The subject sign is not within the corporate city limits of any city or town. The subject sign is within 660 feet of Interstate 10. The subject sign is owned by the Respondent, Fuqua & Davis, Inc., a Florida corporation. The subject sign does not have a permit as required by Chapter 479, Florida Statutes. The Petitioner, Department of Transportation, would not issue a permit as required by Chapter 479, Florida Statutes, for the subject sign. There is no zoning in Jackson County, Florida. Interstate 10 is an interstate highway as defined in Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, and said interstate highway was open for vehicular traffic at the time sign was erected. The sign can be seen from the main traveled way of I- 10. The subject sign is located at the interchange of State Road 69 and Interstate 10. In this location, there are several commercial enterprises; a Union 76 gas station, a Phillips 66 gas station, a western wear shop, an Exxon gas station, and the Respondent's Shell gas station. These, together with the sign, are identified on Petitioner's Exhibit 1, an aerial photograph. The area surrounding the interchange of State Road 69 and Interstate 10 in which the sign is located is an unzoned commercial area. This finding is based upon the testimony of a real estate appraiser together with the businesses which are located in this area. The evaluation of property to commercial within an interchange commences with the construction of an interstate highway and progresses toward a total commercialization of the property. The highest and best use for the land is commercial and it has begun that transition. The location of the subject sign is identified on Petitioner's Exhibit 1 in Case Nos. 81-191T and 80-796T, an aerial photograph. The subject sign is located adjacent to an interchange on an interstate highway. It is not located on the premises of the business advertised. The sign is over 1,000 feet away from and across SR 69 from the advertised business on non- contiguous property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Final Order of the Department be issued requiring removal of the sign within thirty (30) days by the Respondent. DONE and ORDERED this 20th day of December, 1984 in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 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 20th day of December, 1984.
