The Issue Whether the sign of Petitioner is in violation of Chapter 479, Florida Statutes, and the outdoor advertising rules promulgated thereunder for having no permit from the Respondent and for being erected in a nonconforming area.
Findings Of Fact Sometime prior to September 6, 1977, in the year 1977, Petitioner erected three outdoor advertising signs less than 30 feet from the nearest edge of the right-of-way of Interstate-10 in rural areas advertising pecans at a Shell station or restaurant at the next exit. One sign was located 03.53 miles East of State Road 53. One was erected 09.98 miles West of State Road 14 and one was located 05.17 miles West of State Road 14. The Respondent, Department of Transportation, served a violation notice on Petitioner dated September 6, 1977, alleging that Petitioner's signs were in violation of Section 479.07(1) and Rule 14-10.04(1), inasmuch as no application had been made or permit granted for the erection of the signs. The violation notice also alleged that the Petitioner was in violation of Section 479.11(1) and (2), Florida Statutes, and Rule 14-10.05(1)(a) and (b), as being in a nonconforming area. Petitioner requested an administrative hearing stipulating as to the location of the signs in the rural areas along Interstate Highway 10. Petitioner contends: that the subject signs are within the exception of Section 479.16(2) and are excepted from all of the provisions of Chapter 479, Florida Statutes. Respondent contends: that the Petitioner is in fact an outdoor advertiser and does not own or lease the farms themselves and therefore does not come within the exception provided for farmers to market the produce of their farms. Mr. J. B. Davis, the President of J. B. Davis, Inc., operates travel shops and is a Shell Oil Jobber. He operates travel shops on Interstate-75 and Interstate-10 and sells various produce at these shops including pecans and other products at the Shell station. He has an agreement with three property owners along Interstate-10 to buy their pecans. The agreements extend to allowing the Petitioner to buy the pecans at the prevailing market price in Madison, Florida; the right to cultivate the trees themselves and right of access over the owner's property. Two of the agreements have been reduced to writing and were introduced into evidence. The sign erected by the Petitioner along Interstate-10 approximately 4 miles from State Road 53 was fallen down in disrepair at the date of the hearing. The sign advertised "This Exit Pecans Shell Station". It was erected on property owned by Mr. Jerry Wood and is in an open field Petitioner buys pecans from Mr. Wood. The sign located approximately 10 miles from State Road 14 is on property located by Mrs. Mattie Cruce. The sign advertises "This Exit Pecans at Shell Restaurant". It is erected in a field with scrub trees growing toward the back. Petitioner buys pecans from Mrs. Cruce to sell at the Shell station. The third sign erected by Petitioner is on property owned by Mr. John Cone. The sign is approximately 5 miles from State Road 14 along Interstate-10. It advertises "Pecans, 5 Miles at Shell Restaurant". Petitioner buys pecans from Mr. Cone. The two lease agreements with the owners of the property on two of the signs was drawn up in the week immediately prior to the date of this hearing on the violation notices. Previously there was an oral agreement with all three owners of the property that the Petitioner would buy the pecans from the owners to sell at the Shell station operated by the Petitioner.
Recommendation Remove the signs of Petitioner. DONE and ENTERED this 29 day of June, 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: Edwin B. Browning, Jr., Esquire Browning & Hardee Post Office Drawer 652 Madison, Florida 32340 Philip S. Bennett, Esquire Department of Transportation The Haydon Burns Building Tallahassee, Florida 32304
The Issue Whether Petitioners, Jonson and Hilliard, have standing to challenge portions of the proposed amendment to Chapter 14-10, Florida Administrative Code.
Findings Of Fact On February 14, 1997, the Department published a Notice of Rulemaking to amend Chapter 14-10, Florida Administrative Code, in the Florida Administrative Weekly. After public hearings and comment, the Department on July 3, 1997, January 16, 1998, and January 23, 1998, published a Notice of Changes to the proposed amendment of Chapter 14-10, Florida Administrative Code, in the Florida Administrative Weekly. As a result of the Notice of Changes to the proposed amendment of Chapter 14-10, Florida Administrative Code, the only remaining issues in this hearing concerned the validity of proposed rule 14-10.004(2) and 14-10.007(1)(d). The proposed amendments involve the validity of the Department’s approval of signs with automatic changeable facings which meet certain criteria for message changes and the validity of the Department’s method for determining when a nonconforming sign is destroyed and may not be repaired or reerected. The proposed rules state: 14-10.004(2) A permit shall be granted for an automatic changeable facing provided: the static display time for each message is a minimum of six seconds, the time to completely change from one message to the next is a maximum of two seconds, the change of message occurs simultaneously for the entire sign face, and the application meets all other permitting requirements. Any such signs shall contain a default design that will freeze the sign in one position if a malfunction occurs. 14-10.007(1)(d) A nonconforming sign which is destroyed may not be reerected. “Destroyed” is defined as when more than 50% of the upright supports of a sign structure are physically damaged such that normal repair practices of the industry would call for, in the case of wooden sign structures, replacement of the broken supports and, in the case of a metal sign structure, replacement of at least 25% of the length above ground of each broken, bent or twisted support. However, in the event that such damage occurs, a sign will not be considered destroyed if the sign owner shows that replacement materials costs to reerect the sign would not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction. The following shall be applicable in determining whether the replacement materials costs to reerect the sign exceed 50% of the value of the structural material: Structural materials shall not include the sign face, any skirt, any electrical service, electrical lighting or other non- structural items. Structural materials shall include any support brackets for the face, any catwalk, and any supporting braces or members of the sign structure. The value of the structural materials in the sign immediately prior to destruction shall be based on the cost of all structural materials contained in the sign as it was configured just prior to damage, and the cost of such materials shall be based on normal market cost as if purchased new on or about the date of destruction, without regard to any labor costs or special market conditions. The materials to be included in the replacement materials costs to reerect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction and shall not include any material that is repaired on- site, but shall include any material obtained from a source other than the sign itself, whether used, recycled or repaired. The repairs to the sign shall be with like materials and shall be those reasonably necessary to permanently repair the sign in a manner normally accomplished by the industry in that area. The cost of such materials shall be as described in paragraph (2)(c)2. The Department’s rulemaking authority is provided by Sections 334.044(2), 479.02 (2) and (7), Florida Statutes. Chapter 479, Florida Statutes, federal law and federal regulations define the regulatory jurisdiction of the Department. Sections 479.01(1)and (14) define automatic changeable facings and nonconforming signs, respectively. Sections 479.01(1) and state: “Automatic changeable facing” means a facing which through a mechanical system is capable of delivering two or more advertising messages and shall not rotate so rapidly as to cause distraction to a motorist. * * * (14) “Nonconforming sign” means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. Both Petitioners asserted standing based on each being a Florida taxpayer, a user of Florida’s highways and each having an intense personal interest in the beauty of Florida’s highways. Both have engaged in numerous social and political activities related to the regulation of highway signs. Because of each Petitioner’s interest, both were invited by either the Department or the Governor to participate in the rulemaking process. None of these characteristics affords a basis for standing in this proceeding. Neither Petitioner owns any outdoor advertising signs. Nor do they own any land upon which such signs are located or land adjacent to or near enough to such signs as to permit the conclusion that either Petitioner’s property rights might be impaired. Petitioners like all motorists in Florida, simply drive down roads on which these signs may be located. Neither Petitioner is significantly impacted by these proposed rules or impacted differently than the general population. In short, neither Petitioner has demonstrated facts sufficient to confer standing on them in this proceeding.
Findings Of Fact On or about March 8, 1977, Henderson Signs filed applications for two permits to erect an outdoor advertising sign in Jackson County, Florida, on the south side of Interstate 10, approximately 1.3 miles west of U.S. 231. These applications were field inspected by the Department's outdoor advertising inspector, they were approved, and the Department issued permits numbered 9126-10 and 9127-10 for the requested location to Henderson Signs. On or about January 4, 1984, permits numbered 9126-10 and 9127-10 were reported lost, and the Department issued replacement tags numbered AL083-10 and AL084-10. Subsequent to the issuance of these permits, Henderson Signs transferred all of its interest in the subject permits to the Respondent, Tri- State Systems, Inc. When Henderson Signs submitted the applications for the subject permits it designated thereon that the proposed location was within 800 feet of a business known as Lee's or Dilmore's Packing Plant. These applications also certified that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes. The business known as Lee's or Dilmore's Packing Plant is located within 800 feet of the permitted site. The building in which this business is conducted appears from the interstate to be a barn, or a livestock shed, or an outbuilding. It is visible from I-10, but there is nothing about the building or the surrounding area to indicate that it is a business, or that any commercial activity is being conducted at this location. There is nothing to distinguish the Dilmore building from any other rural building in Jackson County, and from the photograph that was received in evidence the area appears to be agricultural or rural in nature, and not commercial. The Respondent contends that there is an on-premise sign on the Dilmore property and that this sign was visible from I-10 in 1977 and is visible now. The Department's witnesses testified that there was and is nothing to indicate to traffic on the interstate that any commercial activity existed at the subject location. The photograph in evidence shows the area to be rural and does not show a sign, thereby tending to corroborate the Department's witnesses. There is no evidence showing where the Dilmore sign is with reference to the interstate, what its size is, what its copy is, or how visible it is to traffic on I-10. As a result, the evidence is not of sufficient quality or quantity to support a finding of fact that the Dilmore sign exists now, or that it was ever there, or that such a sign would indicate to interstate traffic that a business activity exists at the subject location. During the summer of 1984 the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the permitted location. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because they were not for a location in a zoned or unzoned commercial area. Prior to the transfer of the permits from Henderson Signs to the Respondent, representatives of the Respondent testified that they inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. They further testified that they received assurance from the Chipley district office that these permits were legal permits. This testimony, however, is totally self-serving without some form of corroboration, and is thus not of sufficient quality to support a finding of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AL083-10 and AL084-10 held by the Respondent, Tri-State Systems, Inc., authorizing signs on the south side of I- 10, approximately 1.3 miles west of U.S. 231 in Jackson County, Florida, be revoked, and any signs erected pursuant to these permits be removed. THIS RECOMMENDED ORDER entered this 8th day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, I-10, was opened to the public. If so, do such poles constitute signs within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such structures?
Findings Of Fact The subject signs are located 1.4 miles east of State Road 71 on I-10. These signs were inspected an October 22, 1980, by an inspector of the Department of Transportation, who observed that the signs' messages were visible from the main traveled way of I-10 and did not bear the permits required by Chapter 479, Florida Statutes. At the time of this inspection, I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The signs are 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, name plates identifying Henderson Signs as responsible for the signs were attached to the signs. (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 files, Cases No. 81-104T and 81-105T. The foregoing facts establish that the subject signs are signs regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the signs. Gene Henderson testified concerning the erection of the poles and the attachment of sign faces to the poles. The sign poles were erected during the latter portion of 1975, and a sign face advertising "Shell Food Store" was affixed to the sign (Case No. 81-104T) on March 30, 1978. Subsequently, a second face (Case No. 81-105T) was affixed on August 1, 1978. That face was changed to one advertising "Hopkins, This Exit." The signs are owned by Henderson Signs, which erected the poles prior to the time I-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject signs were located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 7, an aerial photograph of the section of I-10 along which the subject signs are located. This photograph bears the number PD 1996 and is Sheet 11 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 signs 1.4 miles east of SR 71 on I-10. The photograph was examined by the Department's engineer, who did not observe the presence of poles or outdoor advertising signs 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 March 30, 1978, several months after I-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 signs within 30 days and without compensation to the signs' 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 Jacob D. Varn, Secretary 310 Jackson Street Department of Transportation Post Office Dox 793 Haydon Burns Building, MS 57 Marianna, Florida 32446 Tallahassee, Florida 32301
Findings Of Fact 1. Jack L. Foster, an advertising sign inspector for the Department of Transportation, testified that he had inspected a sign 5.50 miles south of Borden on 95 and facing I-95 in Duval County Florida, which sign bore advertising copy advertising the city of St. Augustine which can be read from I- Foster checked with the chamber of commerce of St. Augustine and determined it had leased the sign from Anastasia Advertising Art, Inc. Foster also checked the zoning maps of Duval county at City Hall in Jacksonville, Florida, and learned that the sign was placed in an area zoned "open agricultural". Foster testified that his inspection of the aforestated revealed no permit was attached, and that it was located 25 feet from the right of way line. Foster stated that because of his duties he would have been aware of any application pending for a permit for said sign, and there had been no application filed. On cross examination, Foster stated that he had first observed the sign in 1972, at which time a tag was not required. No other witnesses testified and no other evidence was presented controverting Foster's testimony. The Hearing Officer having not received any further argument from the parties, and having considered the foregoing facts, finds that said sign being 25 feet from the right of way of I-95 violated Subsection 479.11(2), F.S., which states that no outdoor advertising sign shall be constructed, used or maintained: (2) Beyond 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary systems outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system, unless it is of a class or type permitted in subsection 479.111(1) or subsections 479.16(1) or (3)." The Hearing Officer further finds that the failure to affix a permit to said sign violates Subsection 479.07(1), Florida Statutes, and further that the Hearing Officer finds that the Department of Transportation has complied with Section 479.08, Florida Statutes.
Recommendation The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends to the Agency Head that action be taken to have the subject sign removed with ten (10) days of his Final Order. DONE and ORDERED this 30th day of March, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property. Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained. A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar. Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site. Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing. By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property. By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department. The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County. The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective. There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising. The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site. The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied. DONE and ORDERED this 28th day of December, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of December, 1984. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Findings Of Fact Violation notices for two signs owned by Petitioner were issued and were the subject of this hearing. Subsequent to the taking of the testimony but prior to the close of the record, the Respondent, Florida Department of Transportation, withdrew its complaint against Petitioner, Peterson Outdoor Advertising, on one of the signs, to wit: Board No. 92 located 4.4 miles north of State Road 404, Highway A1A, n/b with copy "Bank Services" for which a violation notice was issued the 14th day of March, 1977. The violation notice issued against Peterson Outdoor Advertising Corporation on Board No. 3297 located at 1.07 miles south of State Road 520 on Highway 1-95, M.P. 37.10 with copy "Seaworld" is the subject of this hearing. The violation notice cited Petitioner for violation of Section 479.07(1), no permit. Petitioner had a sign located in the approximate location of the sign now cited in violation. The sign was badly damaged by what was apparently an act of God, a windstorm. Most of the sign was destroyed as shown by Petitioner's Exhibit 1, a photograph taken in January of 1977. The sign had been constructed with six inch by eight inch beans and a plywood face. The height of the sign was approximately six feet. There were Peterson identifiers on part of the structure that was left standing. A new structure was erected at the approximate same location. Round poles for the supporting structure were erected. The new sign of new materials was built and the elevation of the new sign is approximately twenty feet in height. The State's Exhibits 2 and 3, photos taken on February 4, 1977, show the new structure, Exhibit 2 showing new round poles and the State's Exhibit 3 showing a sign approximately twenty feet in height advertising "Florida's Best Entertainment Value SEAWORLD. On 4 Between Orlando & Walt Disney World" as copy. The State's Exhibit 1 shows the remains of the old sign in the approximate location. The new sign, which is the sign of this hearing, carries the same permit nunber that the prior destroyed sign carried on one of the posts of the structure. The Respondent, Department of Transportation, contends: that no permit was applied for or obtained for the subject sign; that the old sign in the approximate same location was destroyed by an act of God and a new sign was rebuilt in the approximate location without a permit; that the old sign was erected with square poles and to a height of about six feet whereas the new sign was erected with round poles and with a height of approximately 20 feet; that the permit displayed on the new sign is the permit that had been issued to the old destroyed sign and when the sign was blown down the permit expired and should not have been placed on the new sign by the Petitioner, Peterson Outdoor Advertising. Petitioner, Peterson Outdoor Advertising, contends: that no one saw the old sign fall and it is a mere conclusion that it blew down; that it has a permit on it. The Proposed Recommended Order of Petitioner has been considered in the preparation of this Order.
Recommendation Remove the sign, Board No. 32-97. DONE and ORDERED this day of July, 19'77, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 503 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32790
Findings Of Fact On May 18, 1979, and May 25, 1979, Henderson Signs filed applications for seven permits to erect seven outdoor advertising sign structures in Washington County, Florida, adjacent to Interstate 10 in the proximity of State Road 77. These applications were field approved by the Department's outdoor advertising inspector and by his supervisor on or about May 30, 1979. Thereafter, on or about June 6, 1979, the Department issued permit numbers 11176-10, 11170-10, 11172-10, 11174-10, 11175-10, 11178-10 and 11179-10 to Henderson Signs. These permits authorized the erection of the signs in the vicinity of the I-10 and S.R. 77 interchange in Washington County, which are the subject of this proceeding. Subsequent to the issuance of theme permits, Henderson Signs erected the signs at the permitted locations. Thereafter, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in these signs and in the permits which authorized them to be erected. Prior to this transfer, the Respondent's representatives inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. Two of the Respondent's representatives testified that they received assurance from the outdoor Advertising Administrator in the Chipley district office that these permits were legal permits. This testimony, however, is self-serving and uncorroborated, and thus is not of sufficient quality to support a finding of fact. The subject permits had been issued by the Department because its district personnel believed that the proposed locations were in areas which had been zoned by the proper authorities of Washington County as commercial. Each of the permit applications submitted by Henderson Signs asserted that the site applied for was in a commercial or industrial zoned area. However, these assertions by Henderson Signs on its permit applications were false. There is not currently nor has there ever been any zoning in effect in Washington County on land located along I-10. The Department's district personnel in Chipley were thus misled by the assertions made by Henderson Signs on its applications. Although zoning ordinances are a matter of public record, and the Department's district personnel might have more thoroughly checked to ascertain if the subject sites were zoned as indicated on the applications, so also did the Respondent's representatives have this opportunity to ascertain the true zoning situation for the sites where they proposed to buy signs. The Respondent is an outdoor advertising company which has been in the business of outdoor advertising since at least 1976. It was aware that signs along an interstate highway must be located in either a zoned or an unzoned commercial or industrial area. Its normal procedure is to check with the county relative to zoning. Nevertheless, the Respondent did not verify the zoning status of any of the subject sites before consummating the purchase of these signs from Henderson Signs. The subject signs are located in a rural setting, and there is no commercial activity located in the area. Prior to October, 1984, these sites were inspected by the Department's Right-of-Way Administrator. As a result of this inspection, notices of violation were sent to the Respondent advising it that proceedings were being initiated to revoke the subject permits because the locations were not in a zoned or unzoned commercial or industrial area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that signs bearing permit numbers 11176-10, 11170-10, 11172-10, 1174-10, 11175-10, 11178-10, and 11179-10, held by the Respondent, Tri-State Systems, Inc., authorizing signs in proximity to the I-10 and SR-77 interchange in Washington County, Florida, be revoked, and the subject signs be removed. THIS RECOMMENDED ORDER entered this 1st day of August, 1985, in Tallahassee, Leon County, 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 1st day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire O. Box 2151 Orlando, Florida 32802-2151 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On February 28, 1979, the manager of Chipley Hotel, Mrs. Linda Cain, made application for a permit to erect an outdoor advertising sign on the south side of I-10, 1.4 miles west of S.R. 77 in Washington County, Florida. Employees of the Department in Chipley assisted Mrs. Cain in the completion of the permit application and advised her that the property on which the sign was to be erected was zoned for commercial or industrial use. She had no independent knowledge of the zoning or lack of zoning on this property. Thereafter, Department personnel inspected the site, final approval of the permit application was given by the Department of Transportation, and a permit was issued to Chipley Motel authorizing the erection of an outdoor advertising sign at the requested location on I-10. In reliance on the issuance of this permit, Chipley Motel erected a sign at the permitted location. Each year Chipley Motel has paid to the Department the annual permit fees for the renewal of this permit. These permit fees have been paid for the years 1979 through 1985, and they have been accepted by the Department. Back in 1979, when employees of the Department at the Chipley District Office made their determination that the property where the sign was to be located was zoned commercial or industrial, they inquired of county officials and relied on the information supplied by them. The property where the subject sign has been erected is not zoned either commercial or industrial, and there has never been any actual zoning for this property. There exists no commercial or industrial activity within 800 feet of the subject sign's location which would qualify the site as an unzoned commercial or industrial area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's Notice of Violation issued on October 3, 1984, be Dismissed, and that the Respondent's sign on the south side of I-10, 1.4 miles west of SR 77, facing west, in Washington County, Florida be allowed to remain in place as a nonconforming sign. THIS RECOMMENDED ORDER entered this 26th day of April, 1985 in Tallahassee, Leon County, 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 26th day of April, 1985.
The Issue Whether respondent's initial proposal to deny petitioner's application for a permit to construct an outdoor advertising sign had a reasonable basis in law and fact at the time it occurred or was otherwise substantially justified; or, if not, whether special circumstances would make an award of costs and fees unjust?
Findings Of Fact In the fall of 1988, petitioner proposed to erect a sign facing east, within 15 feet of an existing outdoor advertising sign, on the north side of State Road 200, approximately .6 miles west of the intersection of State Road 200 and I-75. He planned to place a single face at such an angle to the existing, single-faced sign that a V configuration would result. Another outdoor advertising company held a permit for the existing sign, which faced west. It stood on property belonging to a land owner who did not own the property to the east on which Ray proposed to raise its sign. On November 10, 1988, the Department of Transportation issued a notice of intent to deny petitioner's application for a permit to construct the outdoor advertising sign. Petitioner reasonably incurred attorneys' fees of $787.50 and costs of $28.00 before Department of Transportation decided, well after the evidentiary hearing held April 5, 1989, to issue the permit, after all. As far as the record reveals, the Department has faced only one other situation in which an applicant for a permit to construct a sign, within 15 feet of an existing sign, proposed to build on property not owned by the land owner who had leased to the company which had built the existing sign, viz., Ad-Con Outdoor Advertising v. Department of Transportation, No. 89- 0087T. In that case, too, the Department issued a permit for the second sign. In an internal memorandum dated February 17, 1989, respondent's Rivers Buford wrote Dallas Gray, while the Ad-Con application was pending, the following: Inasmuch as the proposed sign would be within fifteen feet of another sign it would, by virtue of the provisions of Rule Chapter 14-10.1006(1)(b)3, be considered a part of a V-type sign and thus its two faces would be exempt from the minimum spacing requirements of Section 479.07, F.S. Respondent's Exhibit No. 2. The memorandum antedated the final hearing in Case No. 88-6107 by more than six weeks. Presumably, the intended rule reference was to Rule 14-10.006(1)(b)3., Florida Administrative Code. At the hearing in the present case, the Department of Transportation produced two witnesses to explain why the Department initially turned down petitioner's application. In their view, the Department of Transportation should never have granted petitioner's application, in order to protect rights vested in the other company, particularly a purported, preemptive right the other company had, by virtue of the location of its existing sign, to build another sign where Ray proposed to build, even though the other company did not own and had not leased the site Ray applied to build on. They asserted not only that the Department was substantially justified in turning down petitioner's application when it was originally considered, but also that any other similar application should be turned down. In their opinion, the Department erred in issuing permits in both cases in which the question has arisen. They attributed the eventual issuance of permits to petitioner and in the Ad-Con case to misinformed and misguided departmental employees. As authority for this view, Mr. Kissinger, respondent's Motorist Information Services Coordinator, cited Sections 479.07(9)(a) and 479.01(14), Florida Statutes (1989) and Rule 14-10.006(b)(2) and (3), Florida Administrative Code.
