Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Bennett Road, approximately 280 feet north of the intersection of Bennett Road with State Road 50, in Orange County, Florida. This location is approximately 1.4 miles west of SR 436, as alleged in the violation notice. The subject sign is located on the west side of Bennett Road facing north and south which is parallel to State Road 50. State Road 50 is a federal-aid primary highway. Bennett Road is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in 1984. The subject sign is visible to traffic on State Road 50, although it is perpendicular to Bennett Road and parallel to State Road 50. There is another permitted sign owned by National Advertising Company located on the north side of State Road 50, east of the Bennett Road intersection, approximately 114 feet from the subject sign. The National sign faces east and west, not north and south, and it is not on Bennett Road. Another permitted sign owned by Peterson Outdoor Advertising is located on the north side of State Road 50, approximately 475 feet west of the Bennett Road intersection. This sign faces east and west, not north and south as the subject sign does, and it is not on Bennett Road as the subject sign is.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner submitted applications on 13 June 1978 for signs facing north and south on I-110 0.433 miles north of SR 296 and these applications were denied by Respondent because the sign would not be located more than 800 feet from the noted business activity. The testimony produced at the hearing related solely to the distance the proposed sign would be located from an existing sign owned by and permitted to Lamar Outdoor Advertising. Petitioner's position at the hearing was that his application for a permit should be granted because the Lamar sign upon which the denial of his application was allegedly based was illegal because located less than 500 feet from the beginning of an on-ramp to the I-110. There was no dispute regarding the facts in this case. The position in which Petitioner intends to locate the proposed sign is less than 1,000 feet from a sign previously permitted to Lamar Outdoor advertising. The hearing in Docket No. 78-2179T was held the same date as the hearing in this case and it was there found as a fact that the Lamar sign is located less than 500 feet from the beginning of the on-ramp at the I-110.
The Issue Whether the signs of the Petitioner should be removed for violations of Section 479.07(2) and 14-10.04(2), no current permit and the violation of Section 479.07(2) and 14-10.06(3), a spacing violation.
Findings Of Fact An alleged violation of Chapter 479, Section 335 and 339.31, Florida Statutes, and notice to show cause was sent to the Petitioner on the 13th day of February, 1978 alleging that a sign owned by Petitioner located on a roof top thirty (30) feet east of Mills Avenue and State Road 50 with copy reading "WFTV Eyewitness News" is in violation of Section 479.07(2), having no current permit visible. A second sign located on the same roof top, 30 feet east of Mills Avenue and State Road 50 with copy "B.J. 105 Radio Station", was in violation of Section 479.07(2) as having no current permit visible and also in violation of Section 479.02(2), Rule 14-10-06(3), Florida Administrative Code, violation of a spacing requirement. An application was made by Petitioner for a permit but was denied by the Respondent for the two subject signs. The sign with the copy "B.J. 105 Radio Station" is less than 500 feet from a permitted billboard and has no current permit tag attached thereto. The sign with the copy "WFTV Eyewitness News", has no current permit tag attached thereto. The subject signs advertise off-premise businesses and must have permits from the Respondent, Department of Transportation. No permits have been issued for either of the subject signs. Petitioner has agreed that any improper use of the sign will be discontinued and contemplates an "on-premise or on-site" sign which the Respondent has agreed is a proper use and not in violation of the statutes and rules.
Recommendation Remove the signs of Petitioner within 30 days from the date hereof unless such signs are permitted by the Respondent after a change in the copy on the sign structures. DONE AND ORDERED this 18th day of August, 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: Bruce E. Chapin, Esquire 201 East Pine Street Orlando, Florida 32801 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Respondent's sign located on U.S. 92, 4.7 miles east of U.S. 19 has no current tag and is located 414 feet west of a validly permitted sign. U.S. 92 is a federal-aid primary highway. Notice of Hearing was mailed to Walter Collany, owner, Snug Harbor, on February 23, 1979 at the address on the letterhead on which an administrative hearing was requested by Mr. Collany.
Findings Of Fact Whiteco is the successor in interest to a sign along U.S. 19, 7.83 miles north of the Pinellas-Pasco County line. Deeb Construction Co. obtained a permit on February 26, 1980, to erect a sign at the location in Finding of Fact #1 facing both north and south (Exhibit 2). This sign was erected and a permit for each face was issued. In January, 1981, Ridgewood Signs, on behalf of Deeb Construction, submitted Permit Affidavit Form (Exhibit 3) to replace the existing 8' x 16' sign with a 12' x 40' sign and on February 11, 1981, the DOT Sign Inspector prepared a Certificate of Sign Removal (Exhibit 4). Permit Tags AB 061 and AB 062 issued for the original sign were cancelled. On February 9, 1981, Deeb's application to erect a sign at this same location facing north only was approved (Exhibit 1). Tag Number AD 484-10 was issued for this north-facing sign. No application was submitted for a south- facing sign at this location and no tag for such a sign was issued. 5. Despite the lack of a permit for a south-facing sign at this location, a south face was placed on the structure and the notice of alleged violation (Exhibit 5) was issued for this south facing sign. This sign is 797 feet from a permitted sign along U.S. 19 on the same side of the highway facing south.
The Issue Whether Respondent has violated Section 479.07(1)(4)(6) and 479.11(1), Florida Statutes. Respondent is a corporation and did not have counsel present at the hearing. In the light of Rule 14-6.03, Florida Administrative Code, which provides that all entities created by law shall be represented by counsels Mr. Miller was not permitted to represent the corporation at this hearings however, he was advised that if he so desired he could testify as a witness. He elected to do so during the proceedings. At the hearing Petitioner's representative moved to withdraw the allegation of a violation with regard to Respondent's sign on Interstate Highway I-10 located 1.8 miles east of State Road 81 on the north side. The amendment of the petition was granted.
Findings Of Fact The sign in question is on Interstate Highway I-10, .9 miles east of State Road 81 on the north side, and 18 feet from the I-10 right-of-way fence which in turn is located within 6 inches of the right-of-way. The text of the sign provides directions to a Fina gasoline station. The outdoor advertising inspector of District III has observed Mr. Miller at this station in the past. The inspector established the precise location of the sign and took a photograph thereof on December 10, 1975. The sign is not in a zoned or unzoned commercial or industrial area as evidenced by observation of the inspector and a sketch of the area prepared by him together with a general highway map of the Florida State Road Department establishes that the sign is not located within the city limits of Ponce de Leon, Florida, or any other incorporated city or town. No state permit tag issued by the Department of Transportation was affixed to the sign at the time of its inspection on December 10, 1975. Although Respondent has previously submitted an application for a permit it was not issued because the sign was in violation of existing law and regulations as determined by the Department (Testimony of Williams, Jordan; Exhibits 1, 2 & 3) Respondent's service station is south of Interstate Highway I-10 and at the time it was leased the land owner informed the Respondent's representative that its location was within the city limits of Ponce de Leon. In like manner, Respondent learned by hearsay that the area that he leased for his sign was also in the city limits. Respondent was under the impression that the problem was that his sign was located in an unzoned area. Mr. Miller testified that Exhibit 1 accurately depicted his sign and that Exhibit 2, its location and conceded that he had applied for a permit which was denied and that he presently did not have a permit for the sign which was built in the spring of 1975 (Testimony of Mr. Miller).
The Issue Whether three signs of Respondent are in violation of the Federal and State laws, rules and regulations by violating the set-back requirements and the requirements for state permit.
Findings Of Fact Respondent was issued a thirty (30) day Violation Notice by Petitioner for a sign located .5 of a mile west of State Road 79 on the south side of I-10 approximately twenty (20) feet from the fence on the outer edge of the right-of- way of I-10. The sign advertised gas, oil, food, camping, road service, and CEO radio shop and is owned by Respondent Rich Oil Company, Bonifay, Florida, a business in operation about .9 of a Mile from the sign. The violations were listed as improper set-back and no permit. A thirty (30) day violation notice was issued to the Respondent by Petitioner on a sign located .6 of a mile east of State Road 79 on the north side of I-10 approximately twenty (20) feet from the fence located on the outer edge of the right-of-way. The products advertised were gas, oil, food, camping, road services, CB radio shop of the business operation of Respondent which business was located about .9 of a mile from the sign. The violations were listed as improper set-back and no permit. A thirty (30) day violation notice was issued to Respondent by Petitioner for a sign located on the southeast corner of St. Johns Road and State Road 79 located six (6) to twelve (12) feet from the outer edge of the right-of-way of State Road 79 advertising the products of Respondent: gas, oil, food, camping, road service, CB radio shop. The business was Operated about one hundred and eighty (180) feet from the sign. The violation was listed as improper set-back and no permit. No state permits were applied for or granted for any of the three subject signs. The signs were set back from the federal aid highway as indicated on the Violation Notices. The signs referred to in (1) and (2) above located east and west of the intersection of State Road 79 and I-10 were placed there by Respondent who stated that they were essential for his business and that the business would be diminished if the signs were removed. The sign described in (3) above on State Road 79 is shown by photograph to have a trailer nearby with a sign on it. Said sign on the trailer is not a subject of this hearing.
Recommendation Remove the signs that are located east and west of the intersection of State Road 79 along the right-of-way of I-10 and described in Findings of Fact (1) and (2) herein. Remove the sign located along State Road 79 described in Findings of Fact (3) herein unless the Respondent removes said sign and relocates it within fifteen (15) feet of the nearest edge of the right-of-way after obtaining a state permit. DONE and ORDERED this 4th day of February, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Russell A. Cole, Jr., Esquire 123 N. Oklahoma Street Bonifay, Florida 32425 John W. Scruggs, Esquire Department of Transportation Chipley, Florida 32425 George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Glen E. Rich Rich Oil Company Post Office Box 158 Bonifay, Florida 32425 Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428 Mr. O. E. Black Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 76-1605T RICH OIL COMPANY, Respondent. /
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue Whether Respondent's sign violates Florida Law as alleged in the Administrative Complaint and, if so, what further action is required.
Findings Of Fact At all times material hereto, Respondent was the owner of an unpermitted sign erected within 25 feet of the intersection of Krome Avenue and State Road 997 in Dade County, Florida. State Road 997 is within the State Highway System and is a federally aided primary highway and the property on which the sign is located is zoned "GU Intrem," an agricultural zoning classification of Dade County, Florida. On March 21, 1989, the sign in question was posted with a violation sticker indicating that the sign was subject to removal by the Department after thirty days from the date of the posted notice. Also, a written violation notice dated March 21, 1989, was sent to Respondent. Prior to the hearing, the face of the sign was removed by Respondent and the structure supporting the sign was taken down by Petitioner. Respondent admitted that she did not have a permit for the sign and that one was required. The sign at issue did not qualify for a sign permit nor for any exemption from the requirement therefor. Further, the property on which the sign was located was in an ineligible zoning classification. The removal of Respondent's sign was appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing that the subject sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that the removal of the subject sign was proper. DONE and ENTERED this 7th day of August, 1989, in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-2697T Petitioner's proposed findings of fact are addressed as follows: Addressed, in part, in paragraph 1. Addressed in paragraph 2; in part, subordinate to the result reached. Addressed in conclusions of law. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Rosa Thomas Thomas' Promises Farms 18990 S.W. 152nd Street Miami, Florida 33187 Mr. Kaye N. Henderson Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III Genera1 Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
