Findings Of Fact The Respondent, T & L Management, Inc., was issued permits numbered AK081-12 and AK082-12 on or about August 30, 1983. These permits were for the erection of signs on the north side of I-10, approximately .4 mile west of SR 297, in Escambia County, Florida. They were issued because of the proximity of a welding business adjacent to the proposed sign location. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of what she believed to be a welding shop nearby the proposed sign location. This inspector was looking for a welding shop because she had been informed that a welding shop was located there. What she saw was some welding being done on the property where the welding business was supposed to be. This could be seen from the interstate. Apparently because the inspector expected to find a welding business near the proposed sign site, she concluded that such a business existed there, and the applications were approved. However, the occupant of the subject property has lived there for 37 years, and he has never operated a welding business. He has only done welding on this site once since 1980, when he welded a bumper onto a truck in his barn. The photographs which were received in evidence show his property, and the general appearance of this area is residential or rural in nature, and not commercial. It is visible to traffic on I-10. The Department's inspector testified that she used a pair of binoculars to enable her to see a small sign reading "welding" on the property where she saw welding being done. However, the property owner denied that any such sign was on his property. Other witnesses presented by the Respondent also testified that they saw welding being done, but this issue has been resolved by accepting the testimony of the witness who lived on the property and who did the welding on the one occasion, as being the more credible and trustworthy evidence. The adjacent property is leased by Pensacola Outdoor Advertising. This property has a building on it which bears a small sign reading "Pensacola Outdoor Adv." and the telephone number. This building was leased by Pensacola Outdoor Advertising in 1984, and was not used for any business purpose when the permit applications were submitted. This property is also visible from I-10. When the Respondent applied for the subject permits there was no business activity being conducted within 800 feet of the proposed sign location. Therefore, the Department's inspector made a mistake in approving the Respondent's applications for this site. In October of 1984 the Department issued its violation notices advising the Respondent that the subject sign permits were being revoked.
The Issue Whether a sign owned by Henderson Sign Company located approximately one- tenth of a mile east of the junction of State Road 73 and U.S. 90 containing as old copy "Key Drug Center" and new copy "Best Western Motor Inn" is in violation of the permit (Section 479.07(1) and (6), F.S.), spacing (Sections 479.02 and 479.111(2), F.S.), and setback (Section 479.11(1),F.S.) requirements.
Findings Of Fact The respondent owns and maintains an outdoor advertising structure adjacent to U.S. Highway 90 approximately one-tenth mile east of its intersection with State Road No. 73 within the corporate limits of the City of Marianna. This structure is a double billboard, with one advertisement for "Key Drug Center," erected in August of 1974, and the other for "Best Western Motor Inn" erected in April of 1976. It is located approximately five (5) feet from the edge of the sidewalk approximately 10 to 15 feet from the edge of the north side of Highway 90. At the time of the Respondent's erection of the first sign, he obtained a permit from the City of Marianna but not from Petitioner Department of Transportation. Before erection of the second sign, in 1976, the Respondent submitted an application to the Petitioner, but the application was denied. There is no other outdoor advertising structure bearing a properly issued permit from the Petitioner in existence within 500 feet from the Respondent's advertising structure although there is a non-permitted sign within 120 feet facing in the same direction. Petitioner has entered into evidence a copy of the zoning ordinance of Marianna, Florida. Petitioner contends: that the signs of Respondent violate the set-back, space and permit section of Chapter 479, Florida Statutes, and of The Governor's Agreement of 1972. Respondent contends: that the Petitioner has not proved where the edge of the right-of-way of Federal Highway 90 is located, that the other sign, if any, is not a lawful sign, having no permit, so the spacing violation, if any, is not enforceable and that the requirement of Chapter 479, Florida Statutes, does not apply to incorporated cities.
Recommendation Remove subject signs for violation of the 660 foot setback requirements of a federal aid highway, Section 479.11(1), and the spacing requirements of the Governor's Agreement of January 27, 1972. The zoning ordinance of Marianna, Florida does not show that there is effective control of outdoor advertising by the City of Marianna. DONE and ORDERED this 13th day of January, 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: George L. Waas, Esquire Office of Legal Operations Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida 32304 Richard Wayne Grant, Esquire 209 North Jefferson Street Marianna, Florida 32446 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Henderson Sign Service Post Office Box 887 Marianna, Florida Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
The Issue Whether the Department of Transportation should is sue a permit under Chapter 479, Florida Statutes, for the subject outdoor advertising sign.
Findings Of Fact An outdoor advertising sign located 9.85 miles east of Volusia County line on Highway 1-4, East, with copy presently reading, "Four Seasons" was cited for violation by the Petitioner, Department of Transportation. Said violation notice was sent to the Respondent, Peterson Outdoor Advertising Company. The sign is located approximately 1200 feet north of State Road 430-A on the east side of 1-4 facing south and bears a 1974 state permit No. 6273-10. It is not disputed that this sign was owned by Rivers Advertising Company and sold by Rivers Advertising Company by Bill of Sale dated June 21, 1974 to the Petitioner, Department of Transportation. The sign did not conform to the requirements of Chapter 479, Florida Statutes, as evidenced by memorandum dated May 1, 1973, Department of Transportation files, Petitioner's Exhibit 1, and upon its sale to the Department was to have been removed by the Department from its location. The payment for the sign amounted to $4,975 which was paid by check to the owner, Rivers Advertising Company. Rivers Advertising Company had leased the real property on which subject sign stood from the property owner, Mr. Gene Berna. Mr. Berna said that Rivers Advertising Company had not paid under their lease agreement at the time that the Petitioner, Department of Transportation, sought to remove the sign subsequent to its purchase from Rivers on June 21, 1974 and would not let the maintenance crew remove the structure. Dandy Signs claimed ownership of the sign by virtue of the fact that Gene Berna sold it to then and that it purchased a renewal 1974 permit tag Number 6273-10-74 and affixed it to the structure. Dandy Signs had never made an application for a permit for subject sign but through error of the Petitioner acquired the permit sign attached to subject sign through the inclusion of it in a regular renewal procedure. Subject sign was not eligible to be permitted under the renewal procedure inasmuch as said sign had been purchased by the State of Florida on June 21, 1974 and Dandy Signs was not eligible for the renewal permit issued because it did not own the sign. Dandy Signs, claiming ownership for the sign through an agreement with the owner of the property on which the sign was located, then "sold" the subject sign by Bill of Sale to the Respondent, Peterson Outdoor Advertising, by an instrument dated May 27, 1975. The proposed Recommended Order filed by the Respondent has been examined and considered in the preparation of this order. The Hearing Officer further finds: The subject sign is owned by the Petitioner. The property owner, Gene Berna, had no title to the subject sign. His only interest was as lessor of the real property. Dandy Signs was on notice that the sign did not belong to the property owner, Gene Berna, and that it belonged to Rivers Outdoor Advertising. Berna told Dandy Signs the subject sign belonged to Rivers. Dandy Signs should not have requested a renewal permit on a sign not previously owned by it and not purchased from the owner. The Petitioner erroneously issued a renewal permit on subject sign upon Dandy's representation it was the owner of the sign. Respondent, Peterson Outdoor Advertising, received no interest in the sign by the alleged Bill of Sale of May, 1975, inasmuch as it did not buy the sign from the owner, the State.
Recommendation Deny the request for a permit. Remove the subject sign which is owned by the Petitioner and should be removed from the roadside. DONE and ORDERED this 29th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Rowland, Esquire 115 East Morse Boulevard Winter Park, Florida 32789
The Issue Is the Notice of Violation against Respondent valid; and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On June 7, 2001, DOT issued Notice of Violation 10B ST 2001 412, against a billboard sign located adjacent to Interstate 95 (I-95), approximately 1.3 miles north of the intersection of I-95 and U.S. Highway 1 at Exit 92. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95 and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The sign is a "permanent" one and has never been permitted by DOT. Exit 94 has not applied to DOT for a sign permit for the subject sign or paid any sign permit fees for it. No sign permit has been issued to any entity for the sign. The sign displays the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." The phrases on the sign are displayed on two stacked faces without the slashes. The letters are all capitalized; the size of the letters and the paint colors of yellow and black call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The words "WE DARE TO BARE" and "EXIT 94" are in very large black type and cover most of the two faces of the sign. The phrases "CAFÉ EROTICA," "ADULT TOYS," "GREAT FOOD," and the abbreviation "INC.," are the phrases smallest in size, located at the very top left, middle right, middle left and bottom right of the sign. All the small phrases are in black type and are relatively inconspicuous compared with the rest of the sign. There are no addresses, telephone numbers, arrows, or other identifying information on the sign. Respondent, Cafe Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., is a Florida corporation. It was incorporated in 1998. At all times material, Café Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, president, shareholder, and director of Respondent. Mr. Sullivan chose the name of the company because the words and phrases "get your attention," are memorable, and are words and phrases Mr. Sullivan has used a lot over the years to advertise for the Café Erotica. Exit 94 does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94 is the development of hunting and fishing camps on various pieces of property it owns or leases in Florida and Georgia. Café Erotica of Florida, Inc., d/b/a Café Erotica (Café Erotica), is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica. Exit 94 leases the land where the sign is located from James Grady Wainright, the owner of the property. The rental property consists of approximately ten acres. The lease was signed on April 20, 2001. The annual rent is $3000.00 per year. Mr. Wainright has received all the rent for 2001 from Mr. Sullivan. Mr. Sullivan was reimbursed by Respondent shortly after he paid the rent to Mr. Wainright. The stated purpose of the lease is the construction and maintenance of a hunting and fishing camp. The lease also authorizes Exit 94 to erect advertising signs on the property, states that any such signs will remain the property of Exit 94, forbids Mr. Wainright from obstructing the highway view of such signs, and grants Exit 94 permission to remove any vegetation that may obstruct the view of such signs. Mr. Wainright originally contacted Mr. Sullivan about leasing the property because he was interested in obtaining income from having a sign on his property. However, his interest resulted in the current hunting and fishing camp lease. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR 207), at the intersection of SR 207 and the exit 94 off-ramp from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94. The real property owned by Exit 94, which is the subject of DOT's Notice of Violation, is approximately nine miles from the Café Erotica restaurant. Mr. Sullivan makes the advertising decisions for Café Erotica. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Until about two weeks before the hearing of this matter, Café Erotica maintained a billboard at the café that displayed the words "PRIVATE DANCES," "GREAT FOOD," and "ADULT TOYS." At the time of hearing the billboards at Café Erotica now include words disparaging of the Department. Café Erotica does not own any interest in the subject sign and no citizen testified that the sign had caused him/her to patronize Café Erotica. However, given the similarity of the corporate name of Exit 94 to advertising used by Café Erotica and the location of Café Erotica at Exit 94, it is likely that Respondent's corporate advertising could also be interpreted as intended for Café Erotica and therefore be of incidental benefit to Café Erotica. On the other hand, the sign is intended to advertise Exit 94's hunting and fishing camps. In short, Mr. Sullivan and his corporations receive a dual benefit from the sign at issue here. Exit 94 lists addresses and locations other than the subject property as its business address(es) for various purposes. Mr. Sullivan's and Exit 94's main business address and office is on SR 206 off Exit 93 on I-95. Exit 94 maintains no office or telephone on the subject property. Jerry Sullivan has directed all activity on the Exit 94 property. His son is a licensed hunting and fishing guide. Jerry Sullivan anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp with guide services, if desired, provided by his son. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Currently, Exit 94's only revenues have been payments from other companies owned by Mr. Sullivan or his wife for use of the hunting and fishing camps maintained by Exit 94. The company has operated at a loss since its inception. The loss is made up by Mr. Sullivan as is needed. There is no public access to the property Exit 94 leases from Mr. Wainright. The property is accessible by going through property owned by a timber company. The closest exit off I-95 to get to the property is Exit 92, where U.S. Highway 1 intersects with I-95. As of the hearing of this matter, Exit 94 was not operating a fishing camp open to the public on the property leased from Mr. Wainright. However, such a public enterprise is not required in order for Exit 94 to be a legitimate business. The parties do not dispute the fact that there is a pond on the subject property. The evidence varied as to the size and quality of the pond with the lower estimate by the Department at 1/2 to 3/4 of an acre and the higher estimate of two acres provided by the landowner. Respondent estimated the size of the pond to be slightly less than two acres. The pond was not stocked with fish, but did have some fish present. Respondent has ordered special hybrid bream to stock the pond for "catch and release" by Respondent's customers and guests. The property was not stocked with game animals, although such stocks would not be necessary for hunting since wild game including turkey, boars, and ducks are already present. There was also one very ramshackle deer blind on the property. There were no public restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. A small trailer was located on the premises. The trailer was placed there and is owned by Mr. Wainright. It is unknown if the trailer is available for overnight lodging. However, the trailer is not necessary for the property to function as an overnight camp and no witness testified to having camped overnight on the subject property. Petitioner routinely distributes corn for seeding the woods for deer and other game. Given the location of the subject property, game attraction is certainly feasible. Bill Harry showed DOT personnel around the subject property. The Department's witness, Tom Simmons, was generally critical of the quality of the hunting and fishing facilities. While there were no people using the pond during his brief inspection, Mr. Simmons has no personal knowledge as to whether people actually hunted or fished on the property at any other time. The Department's representative acknowledged that he saw feed corn scattered on the property for use in luring wildlife to the premises. Exit 94 holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the county accepted Exit 94's designation of its business. Exit 94 has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94 produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Exit 94 is a legitimate business. It is in the business of providing and developing hunting and fishing camps for use as directed by Exit 94. No reason was demonstrated to pierce the corporate veil of Exit 94. The sign located on the property at issue here only and primarily contains the name of the corporation and is exempt from the general sign permitting requirements. Therefore, the Notice of Violation should be dismissed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact The Respondent is a licensed optician in the State of Florida, holding license number DO-0001378. The last known address of the Respondent is 20/20 Opticians, Inc., of 6201 S.W. 70th Street, South Miami, Florida. At all times pertinent hereto, the Respondent was president of 20/20 Opticians, Inc. The Petitioner is an agency of the State of Florida, charged with regulating the practice of opticianry, including regulation of practice standards, including standards of advertising. The Petitioner, through Exhibit One and the testimony of Jim Foreman of Southern Bell, established that the Respondent took out the subject ad advertising the "buy one - get one free" arrangement for obtaining glasses from his firm and Petitioner established that the Respondent signed the order or invoice for purchase of the ad. This ad had been taken out previously and then renewed in substantially the same format with merely the picture of the Respondent deleted. The ad, with the subject advertisement, was renewed on December 17, 1979. Maria Osuna, an investigator for the department went to 20/20 Opticians, Inc. in July of 1981. She conferred there with Lewis Ramirez, an employee of the Respondent, regarding the possibility of her obtaining a free pair of eyeglasses after purchasing a pair. That employee said that the ad was not honored any longer. She conferred with the office manager of the Respondent's firm who knew of the ad, but refused to honor it. Allen Daniel Kirtis was hired by the Respondent in March of 1981. The Respondent told him to give customers second pairs of eyeglasses (with their old frames) for $9.95 and not to honor the subject ad, but rather to charge them $9.95 for a second pair or 50 percent of retail price, which ever was higher. He was specifically instructed by the Respondent not to honor the ad during the time when the ad was running in the yellow pages. Mr. Kirtis established that the subject ad was current and ran as a current advertisement in the phone directory at least until November, 1981. In response to the evidence and testimony adduced by Petitioner, the Respondent produced nothing and failed to appear at the hearing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That the Respondent be found guilty as charged and a Final Order be entered by the Petitioner suspending his license for one (1) year. DONE and ENTERED this 30th of March, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of March, 1983. COPIES FURNISHED: Jerry Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lionel Barnet, Esquire 13842 SW 56th Street Miami, Florida 33183 Fred Varn, Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On May 8, 1979, a representative of DOT observed a sign located on State Road 13, 1.8 miles north of the Duval-St. Johns line in Duval County, Florida. State Road 13 is a federal aid primary highway. The sign in question bore the following advertising copy: "Quail Ridge, New Homes, straight ahead to St. Augustine Rd., Right to Caron Dr." At the time the sign was initially observed it was constructed of new lumber, with fresh dirt around the holes in which the standards were placed which supported the sign. The sign was located within the corporate limits of tie City of Jacksonville, Florida, in an area which is zoned "Commercial Intensive". At the time the sign was initially inspected on May 8, 1979, no permit tag was affixed. In addition, the sign was located within two feet of another larger sign which had been properly permitted, was on the same side of the highway, and faced the same direction. The DOT representative, upon inspection of the sign, contacted Joseph Pepe, the President of Respondent to discuss the sign in question. Mr. Pepe admitted that his company owned and erected the sign with its own work crew. The sign was again inspected one day prior to the final hearing in this cause, and was still located in the same position and had no permit tag affixed to the structure.
Findings Of Fact On July 6 and 13, 1983, the Department resolved in its district office in Chipley, Florida, the Respondent's applications for permits to erect two stacked, back-to-back, outdoor advertising signs in Jackson County, Florida, on the south side of 1-10, one approximately 2.9 miles and the other approximately 3.1 miles west of SR 69. These permit applications stated that the locations requested were in an unzoned commercial or industrial area within 800 feet of a business. The Department's outdoor advertising inspector visited the sites twice after having reviewed the Respondent's applications and being told that he would find a business known as Dave's Garage there. The first time he visited he did not see the business. On the second visit he saw the top of a tin building and the top of a house from the interstate. There was an antenna visible on the housetop, but he could not see any commercial activity. After driving off the interstate to the site of the buildings, he found a car, a bus, a shed, some grease and oil cans, but no one was there. The front of the building had a sign on it which said Dave's Garage. Nothing could be seen from I-10 to identify this site as the location of a business, however. Based upon his inspection of the site, coupled with the Respondent's representation that a business existed there, the inspector approved the Respondent's applications. They were also approved by his supervisor, and permits for the requested locations were issued because of the proximity of the business known as Dave's Garage to the subject sites. Subsequently, after the permits had been issued, the Respondent erected its signs which are the subject of this proceeding. From January to March, 1985, there was still no business activity at the subject site that was visible from I-10. On March 12, 1985, two days before the hearing, an on-premise sign bearing the words Dave's Garage, was erected which is visible from I-10. Otherwise, the area is rural in nature. The Respondent, through its agents Ron Gay and Terry Davis, submitted the applications for the subject permits, and designated thereon that the proposed locations were in an unzoned commercial area within 800 feet of a business. These applications also certified that the signs to be erected met all of the requirements of Chapter 479, Florida Statutes. During the summer of 1984, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued notices of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AJ725-10, AJ726-10, AJ723 10, AJ724-10, AJ720-10, AJ721-10, AJ719-10 and AJ722-10, held by the Respondent, Tri-State Systems, Inc., authorizing two signs on the south side of I-10, 2.9 miles and 3.1 miles west of SR 69 in Jackson County, Florida, be revoked, and the subject signs removed. THIS RECOMMENDED ORDER entered this 6th 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 6th day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802-2151 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
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 Respondent maintains an outdoor advertising structure on the I-95 southbound lane facing north, 13.94 miles north of the Brevard-Volusia County line. Sometime between August 6, 1975 and January 12, 1976, the face of this advertising structure was raised six to eight feet in height. This was done by extensions being placed on the original poles upon which the structure sits. The structure retained its same face size and lighting. The face of this structure was raised at the request of Respondent's client in order to retain that client's business. No evidence was presented to show when this sign was originally erected. No evidence was presented by Petitioner, Department of Transportation, which would establish that the subject sign is or is not located at a "commercial or industrial zone" or an "unzoned commercial or industrial area" as those terms are defined in Section 479.01, Florida Statutes. The subject sign is located approximately 15 feet outside the right-of-way of I-95.
