Findings Of Fact Outdoor Display is a licensed outdoor advertiser holding License No. 18191 from Polk County. The two signs which are referenced in the charges are located on U.S. 92 respectively 2.59 miles and 2.67 miles west of U.S. 27. These signs were inspected in 1975 and the first sign bore 1971 permit issued to Outdoor Display. The signs each had a value of more than $100. Both signs belonged to Outdoor Display, and neither sign bore a current permit. Boger receives application from Outdoor Display as the outdoor advertising administrator but had not received any application with regard to these two signs prior to the hearing.
The Issue Whether the sign which was located at the northwest corner of US #41 and State Road 862, 50 feet west from US #41 on Vanderbilt Road, with the copy "La Playa Motor Inn" and "La Playa Motor Inn", found there on October 8, 1975, continuing through February 19, 1976 was in violation of the following: Chapter 479.07(1), Florida Statutes, which requires a permit for the erection of a sign. Chapter 478.07(7), Florida Statutes, which requires the name of owner or advertiser be affixed to the face of the sign structure. Chapter 479.02(2), Florida Statutes, which sets forth certain requirements of spacing.
Findings Of Fact At a time prior to October 8, 1975, Seminole Vanderbilt Corporation, which trades as La Playa Motor Inn and is owned by P. M. Francoeur, sole owner and president, leased a sign from Richard O. Radenbaugh. This sign was located in the vicinity of the northwest corner of US #41 and State Road 862, 50 feet west from US #41 on Vanderbilt Road. Subsequent to the time that the sign was leased to the Seminole Vanderbilt Corporation, Richard O. Radenbaugh entered into a contract to sell the space and the sign to the Department of Transportation. The sale was effected and the sign was removed. P. M. Francoeur, as President and leaseholder on the sign was not told that the subject sign would be sold, prior to the negotiations and sale between Mr. Radenbaugh and the Department of Transportation. Consequently, the original sign with the copy "La Playa Motor Inn" was removed without his knowledge; Mr. Francoeur went to a County Commissioners meeting in Collier County, Florida and Mr. Radenbaugh spoke with Mr. Francoeur at that time and promised to give him a vacant sign which had the copy "King Crown Inn". This sign was located immediately west of the "La Playa Motor Inn" former sign. Mr. Francoeur accepted that offer and caused workmen to go to the location and to remove the "King Crown Inn" sign and have it refurbished for purposes of installation at the general location of the original "La Playa Motor Inn" sign. When this refurbishing and site location was accomplished, it left two signs in the area that originally had three signs. There was now, an unrelated sign and the new "La Playa Motor Inn" sign which had been constructed from the former "King Crown Inn" sign; as opposed to, the unrelated sign, the original "La Playa Motor Inn" sign which had been sold to the Department of Transportation and removed, and the "King Crown Inn" sign which was in the immediate area west of the original "La Playa Motor Inn" sign. Mr. James A. Hachett, outdoor advertising inspector with the Department of Transportation, was aware that the original "La Playa Motor Inn" sign had been sold and removed. When he went by the subject location after the original "La Playa Motor Inn" sign had been sold and removed, he discovered that a new sign with the copy "La Playa Motor Inn" had been erected in the general area where the original "La Playa Motor Inn" had been located. He also noted that the "King Crown Inn" sign was no longer located in a position west of the space which had been occupied by the original "La Playa Motor Inn" sign. In addition, the new "La Playa Motor Inn" sign was not in the exact location as the original "La Playa Motor Inn" sign. On a closer examination, Mr. Hachett discovered that there were three identifying permit tags affixed to the new "La Playa Motor Inn" sign. One tag was the permit tag from the original "La Playa Motor Inn" sign, and the other two tags were from the sign west of the location, which sign was the "King Crown Inn" sign. These former permit tags were affixed to each side of the double faced advertising sign. It was after this examination that the "La Playa Motor Inn", in the person of P. M. Francoeur was notified of the prospective violations as ultimately alleged in the October 8, 1975 complaint. Francoeur was notified by an alleged violation statement addressed to the Seminole Vanderbilt Corporation, which owns "La Playa Motor Inn". As of February 19, 1976, at the time of the hearing, the new "La Playa Motor Inn" sign which is in fact the refurbished structure which was the "King Crown Inn" sign, located west of the original "La Playa Motor Inn" sign, is still standing in the general, but not exact position of the original "La Playa Motor Inn" sign. Application for permit by the Seminole Vanderbilt Corporation t/a "La Playa Motor Inn" for the benefit of the copy, "La Playa Motor Inn" has not been applied for since the original "La Playa Motor Inn" sign was sold to the Department of Transportation and removed. Application has been made for a renewal of the permit which is associated with the "King Crown Inn" sign which was refurbished and became the subsequent "La Playa Motor Inn" sign. In describing the location of the new "La Playa Motor Inn" sign, it is somewhere between the location of the original "La Playa Motor Inn" sign and the "King Crown Inn" sign, but not in the exact location of either of those original signs.
Recommendation It is recommended that the Petitioner afford the Respondent 30 days within which to remove the sign or take satisfactory steps to obtain a permit for the sign, after which time the Petitioner, in accordance with Chapter 335.13(2), Florida Statutes, shall cause such sign to be removed. DONE and ENTERED this 14th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operation Mr. P. M. Francoeur, President Department of Transportation c/o La Playa Motor Inn 605 Suwannee Street 9091 Gulf Shore Drive Haydon Burns Building Naples, Florida 33940 Tallahassee, Florida 32304
The Issue Whether Respondent's sign located adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of State Road 15A in Deland, Volusia County, Florida, is in violation as alleged in Petitioner's Notice To Show Cause No. 5-79-014-89 dated June 13, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Artdev Graphics Corporation, was the owner of a sign located near the intersection of Plymouth Avenue and SR 15A adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of SR 15A, in Deland, Volusia County, Florida which is the subject matter of this proceeding. Respondent also owns a legally permitted sign adjacent to SR 15A which is 270 feet south of the sign referred to in paragraph 1 above when measured along the east right of way line of SR 15A. SR 15A is designated as a federal-aid primary highway. Plymouth Avenue is neither a federal-aid primary highway nor an interstate highway. The sign referred to in paragraph 1 above is visible from the "main- traveled way" of SR 15A as that term is defined in Section 479.01(8), Florida Statutes, respectively. There was insufficient evidence to show that the Department advised the Respondent, at any time, that a state outdoor advertising permit was not needed for the sign in question. The sign in question does not have a state outdoor advertising permit attached thereto nor has a state outdoor advertising permit been issued to Respondent for the sign in question.
Recommendation Based upon the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Florida Department of Transportation (Department) enter a final order requiring the Petitioner, Artdev Graphics Corporation, to remove the sign in question under the terms and conditions the Department deems appropriate and in accordance with law. DONE AND ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1.-2. Adopted in Finding of Fact 1, as modified. 3.-8. Adopted in Findings of Fact 3, 4, 1, 2, 5, and 7, respectively. 9. Rejected as not supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by Respondent The Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: BEN WATTS, P. E., SECRETARY HAYDON BURNS BUILDING 605 SUWANNEE STREET TALLAHASSEE, FLORIDA 32399-0450 ATTN: ELEANOR F. TURNER, M.S. 58 CHARLES G. GARDNER, ESQUIRE HAYDON BURNS BUILDING 605 SUWANNEE STREET, M.S. 58 TALLAHASSEE, FLORIDA 32399-0458 ROBERT S. LEE, PRESIDENT ARTDEV GRAPHICS CORPORATION 409 NORTH SPRING GARDEN AVENUE DELAND, FLORIDA 32720
The Issue Whether the Respondent has violated Section 479.02, Florida Statutes, and Section 479.07, Florida Statutes, for failure to display a visible permit tag and for a multiplicity of advertisers on one side of Board No. 0399B.
Findings Of Fact A violation notice was issued on October 18, 1976, Respondent sign company citing an advertising sign located 10.14 miles south of U.S. 1; 528 north of 520 with copy thereon advertising the businesses of 13 restaurants. At the hearing testimony was heard and evidence was received showing that a permit tag was affixed to a pole of the outdoor advertising structure. The tag was not clearly visible and is difficult to be seen inasmuch as the copy of the board has been nailed on the pole immediately above the permit tag. Testimony was received and an exhibit entered which shows that the entire face of the sign is covered with outdoor advertising. Lettering at the top of the sign states "EAT OUT ENJOY THE INFORMAL FAMILY ATMOSPHERE OF MERRITT ISLAND". The lettering on the bottom board of the sign which is a separate board attached to the main board has the lettering, "TURN RIGHT ON 520". The remainder of the board shows individual advertisements of 13 different places to eat. The Petitioner contends: (1) that the permit tag is not clearly visible as required by the law; (2) that the sign is in violation of Section 479.02(1) and the Governor's Agreement promulgated thereto inasmuch as it displays more than two (2) signs. Respondent contends: (1) that the permit tag is clearly visible; (2) that one advertiser bought the copy and the sign displays but one advertisement.
Recommendation Have the Respondent move the permit tag into a more visible position as required by the statutes. Dismiss the charge as to a violation of the Governor'S Agreement. 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
Findings Of Fact Linda Duvon, an outdoor advertising inspector, identified as Petitioner's Exhibit 1 a photograph of the signs which were the subject of the Notice of Violation. Ms. Duvon inspected these signs, and they appeared to be in the right-of-way owned by the State of Florida. She inquired of Mr. Jim Chaplin if he owned these signs, and he claimed ownership of the signs. Harvey Walker, a surveyor for the Department of Transportation, testified that he surveyed the subject signs, having identified them by reference to the photograph, Exhibit 1, and determined that the signs were 38 feet within the State-owned right-of-way and 61 feet from the center line of U.S. 1, a State-maintained highway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law above, the Hearing Officer recommends that the agency head give the Respondent 90 days to remove said sign and at the end of which time, if said sign has not been removed, directs its removal pursuant to Section 479.17, Florida Statutes, by Department of Transportation personnel. DONE and ORDERED this 1st day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles Gardner, Esquire Richard C. Hurst, Administrator Department of Transportation Outdoor Advertising Section Haydon Burns Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building Tallahassee, Florida 32301 Mr. James F. Chaplin c/o Chaplin Real Estate 5190 Overseas Highway Marathon, Florida 33050
The Issue Whether the outdoor advertising structure of the Petitioner, Florida Outdoor, Inc., is in violation of Section 479.13 and 479.05 of the Florida Statutes.
Findings Of Fact The Petitioner, Florida Outdoor, Inc., is the owner of two signs located on U.S. Highway 41, six miles east of SR 839A. One has a copy of "Wootens Airboat Tours" and the second sign which is also located on U.S. Highway 41, fifty feet (50') east from Bridge No. 95 has a copy of "Shell Factory." The real property upon which these structures are located was formerly owned by the Collier Company of Naples, Florida, who by letter dated November 17, 1976, notified the Petitioner that it expected to conclude negotiations for sale of its property leased by Petitioner sign company on November 1976 and therefore would not renew any sign space leases beyond their expiration date of December 31, 1976. The leases were not renewed and the structures stand upon the property without authorization from the present owner of the property, the State of Florida, which has leased it to the National Park Service. By letter dated April 14, 1977, the National Park Service, requested the Respondent DOT which has the responsibility to administer and enforce the outdoor advertising law, Chapter 479, F.S., to remove subject signs. As a reason for the request, it cited: Title 23 CRF - Highways, Part 131(h) states that "All public lands or reservations of the United States which are adjacent to any portion of . . . the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary," and Part 138 Preservation of parklands states: "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands."
Recommendation Remove the Petitioner's signs. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32790 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Whether Petitioner's applications for two outdoor advertising signs in Sumter County, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute, Petitioner, Rite Media Enterprises, Inc., seeks the issuance of two state sign permits from Respondent, Department of Transportation (DOT). In preliminary decisions dated August 24, 1998, DOT denied the applications on the ground the land owners had not given Petitioner permission to place the signs on their property. As an additional ground, DOT alleged that one sign violated the spacing requirements by being "[i]n conflict with a[n] existing permitted sign." Petitioner contends, however, that it has two legally enforceable leases with the property owners, and that its applications should be approved. If the applications are approved, the signs would be placed on two parcels of property near Interstate 75 in Sumter County, Florida, one on the east side and one on the west side of the highway. Both parcels are owned by Intervenors, William and Debra Farkus. On July 29, 1998, Dan Hucke, a real estate representative for Petitioner, was "scouting" for suitable billboard locations and decided that Intervenors' property would be a desirable location. After Hucke discussed the matter with Intervenors, the parties agreed to execute lease agreements that day for the two parcels of property in question. A copy of the lease agreements is found in Petitioner's Exhibits 1 and 2 received in evidence. In Hucke's presence, both Debra and William Farkus executed each lease agreement and a Notice of Lease. The documents reflect that only one person, Hucke, served as a witness. Hucke then carried the agreements to Petitioner's president, who executed the agreements on behalf of the corporation. In addition, Hucke's wife, a notary public, placed her seal on the Notice of Lease indicating that the signatures had been signed in her presence after an oath was administered to the lessors. Intervenors were not present when the documents were notarized. The day after the documents were executed, Debra Farkus contacted Hucke by telephone. Hucke told her he would be in the area the following Monday (August 2) and they could "work out" any problems she might have with the agreements. The same day (July 30), Debra Farkus faxed a handwritten letter to Hucke advising him to "[c]ancel the lease as per our conversation immediately," and to not "record them as per our conversation." After receiving the cancellation notice, Hucke met briefly with the Intervenors, but contended at hearing that he could not recall the substance of that conversation. On the other hand, William Farkus testified that in that meeting he again reiterated his desire for the agreements to be cancelled. In any event, Hucke acknowledged that he left the meeting with the impression that the Intervenors objected to the agreements. Despite receiving the foregoing notice and oral advice from Intervenors, Hucke nonetheless believed he had valid leases. Whether he recorded the leases is not of record. However, he promptly filed two applications for sign permits with the DOT, and he enclosed a copy of the lease agreements to evidence the fact that he had the permission of the property owners. When a DOT inspector conducted a preliminary investigation of the applications, he learned that Intervenors did not consent to having the signs on their property. Under long-standing DOT policy (since at least 1992), when this type of dispute occurs, which the inspector says happens "[a]ll the time," it requires that the applicant either submit an affidavit (or present testimony at a hearing) evidencing the fact that the property owners have consented to the placement of a sign on their property, or submit an order of a circuit court reflecting that the lease agreement is enforceable. Where a dispute such as this occurs, in no circumstance does DOT attempt to construe the legal sufficiency of a lease agreement or adjudicate the rights of a party under a lease agreement. The foregoing policy is applied by the agency on a statewide basis, without discretion, and it has a logical and rational basis, particularly since an administrative agency lacks jurisdiction to construe contracts or make property-right determinations. At the hearing, Intervenors again stated that they did not authorize Petitioner to place its signs on their property. In addition, Petitioner did not submit a court order indicating that enforceable leases between the parties existed. DOT presented testimony which established that the proposed sign location in Case No. 98-4459T would violate statutory spacing requirements because the location conflicted with an existing nearby sign. There was no evidence to contradict this assertion.
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 the applications for state sign permits filed by Petitioner. DONE AND ENTERED this 16th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of September, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Andrew B. Thomas, Esquire Post Office Box 4961 Orlando, Florida 32802-4961 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether the outdoor advertising structures of the Petitioner, National Advertising Company, are in violation of F.S.A. 479.13 and 479.05.
Findings Of Fact The Petitioner, National Advertising Company, is the owner of two signs located on U.S. Highway 41, east of SR 840A which is known as the Turner River Road. The face on one side bears the copy of "Holiday Inn;" the face on the other side bears the copy of "African Safari." The Petitioner was cited on September 22, 1977, by the Department of Transportation for violation of Chapter 479.13 of the F.S.A. The real property upon which these structures are located was formerly owned by the Collier Company of Naples, Florida, who by letter dated November 17, 1976, notified the Petitioner that it expected to conclude negotiations for sale of its property leased by Petitioner sign company on November 1976 and therefore would not renew any sign space leases beyond their expiration date of December 31, 1976. The leases were not renewed and the structures stand upon the property without authorization from the present owner of the property, the State of Florida, which has leased it to the National Park Service. By letter dated April 14, 1977, the National Park Service, requested the Respondent DOT which has the responsibility to administer and enforce the outdoor advertising law, Chapter 479, F.S., to remove subject signs. As a reason for the request, it cited: Title 23 CRF - Highways, Part 131(h) states that "All public lands or reservations of the United States which are adjacent to any portion of . . . the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary," and Part 138 Preservation of parklands states: "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands."
Recommendation Remove the Petitioner's signs. DONE and ORDERED this 4th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32790 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
