Findings Of Fact Jefferson County has established comprehensive zoning for the county pursuant to its Development Code which became effective on April 1, 1983. This code provides a system of land use regulation which includes comprehensive zoning of commercial uses by a category called "Site Particularly Suited for Economic Activity." The commercial zone allows for one of three types of employment centers, namely, Type 1-5, Type 6-20, and Type 21, which are commercial enterprises or firms distinguished by the number of employees in a building or group of buildings at a particular location. Type 6-20 and Type 21 employment centers are only allowed in a "Site Particularly Suited for Economic Activity." Section 1 of Article 25 of this code allows outdoor advertising visible from an arterial highway to be located in one of the "Sites Particularly Suited for Economic Activity" as defined in Article 26. Section 2 of Article 26 of the code states that Economic Activity refers to Type 6-20 and Type 21 employment centers. The Petitioner, by its application for outdoor advertising permits, seeks to erect signs on the south side of I-10, .6 mile west of State Road 59 in Jefferson County, facing east and west. This site is in a Type 1-5 employment center, not a Type 6-20 or a Type 21 employment center, as required by Article 26 of the code. This site is also within 660 feet of the right-of-way of Interstate 10. It is without commercial activity, and is vacant land at the present time. On May 7, 1984, the Petitioner made an application to the Jefferson County Planning Commission for a change of land use, or variance, and listed as its purpose "Outdoor Advertising." On July 12, 1984, the Jefferson County Planning Commission approved the variance as applied for on the property which is the subject of this proceeding. Thereafter, on September 11, 1984, the Petitioner applied with the Department of Transportation for outdoor advertising permits at the subject location. This application was denied by the Department on September 13, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Seminole Inns, Inc., for permits to erect outdoor advertising signs on the south side of Interstate 10, .6 mile west of State Road 59 in Jefferson County, Florida, facing east and west, be denied. THIS RECOMMENDED ORDER entered this 22nd day of March, 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 22nd day of March, 1985. COPIES FURNISHED: Terrell C. Madigan, Esquire David D. Eastman, Esquire P. O. Box 669 Tallahassee, Florida 32302 Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, E. A. Hancock Advertising, Inc., erected two double face outdoor advertising signs in June, 1975, in an unincorporated part of Broward County, Florida, without first obtaining a permit from the Petitioner, Florida Department of Transportation. Two of the signs face north and two signs face south. Each sign structure has two faces. After erection the Respondents applied for permits but permits were refused by Petitioner and violation notices dated October 22, 1975, were sent to Respondents indicating that Respondent was in violation of the outdoor advertising laws by erecting signs without permits and erecting "two separate signs erected illegally (which] can be seen from 1-95." After much correspondence between the parties, the matter was set-for hearing November 9, 1976, was thereafter continued and finally heard on July 12, 1977, more than two years after the erection of the signs. The signs were constructed on a county secondary road known as Ravenwood Road, Fort Lauderdale, Florida, and more definitely located as "south from 3497 Ravenwood Road. The road is one lane in each direction and is the type of road usually known as a service road. The billboard signs are elevated to a height of approximately 25 feet from the ground to the top of the sign and sit back about 15 feet from the secondary road. Although the signs can easily be read by travelers on Ravenwood Road, signs designed primarily to serve this two lane road would as a practical matter have been much smaller and much closer to the ground and the message would have had smaller letters. The signs are a "visual overkill" for travelers on Ravenwood Road. See "Petitioner's Composite Exhibit 1" and the Polaroid pictures taken from Ravenwood Road. The signs are elevated to less than 25 feet above 1-95. One sign is about 190 feet from the south lane of the interstate highway and the other about 191 feet from the south lane of the highway. Both signs are on the west side of the interstate highway. The two sign structures are approximately 300 feet apart. One sign is approximately 500 feet from an existing sign and the other is approximately 850 feet from an existing sign. The large size lettering on the large signs are clearly visible to the motoring public on interstate highway 1-95. Three of the four signs are visible and can easily be read by motorists going either north or south on the interstate highway. Evidence is unclear as to whether one side of one of the double space signs is clearly visible from the interstate highway. Copy on the signs is changed from time to time, but at the time the pictures entered into evidence were taken from the interstate highway, copy read, "WHITEHALL PRESTIGE LIQUORS A GREAT VODKA" and "HOLSUM Baked just right for you." The advertising is large and can be read in the Polaroid snapshots that were taken by Petitioner while on the interstate highway and entered in the record as "Petitioner's Composite Exhibit 1." Application for sign permits was made June 16, 1975 to the Broward County Planning, Building and Zoning Department. Permits were issued by the county and were affixed to the signs. The Hearing Officer further finds: The subject signs were constructed primarily to be read by the public traveling on the interstate highway. The size of the signs, the size of the lettering, the elevation of the signs and the angle of the signs provide insurance that messages can be easily read by those traveling on the interstate. The traffic on the interstate is much heavier than traffic on Ravenwood Road. The Petitioner contends that the Respondent is in violation of outdoor advertising laws: No permit was applied for or granted before the outdoor advertising signs were constructed by Respondent. The signs were constructed primarily to be read by the public traveling on 1-95, an interstate highway. The setback of tho Respondent's signs is less than 660 feet from the interstate highway. The signs should be removed as violating the state statutes as well as the federal code laws, rules and regulations contained in the "Highway Beautification Act." Broward County has not submitted to the administrator of the state evidence that it has established effective control with regard to size, spacing, height and lighting requirements contrary to the agreement of the Governor authorized by Section 479.02. Broward County does not enforce any outdoor advertising requirements even if it could be shown the zoning was in compliance with Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code as required by Section 479.02 and the agreement executed pursuant thereto. Respondent contends that: It secured permits from Broward County and attached them to the subject signs. Broward County had zoned the area M-3 and that it is a commercial zone. The signs were erected primarily to be read by the public traveling on Ravenwood Road. There are no spacing requirements of a thousand feet between advertising signs under the Florida law and that even if there were they had not been formerly charged with violating spacing requirements. Public Law 89-285, passed by the 89th Congress of the United States on October 22, 1965, allowed the states and the federal government to agree to set-back for signs nearer than 660 feet of the nearest edge of the right of way in areas zomed industrial or commercial. The agreement between the Governor and the federal government made provisions for local governments to regulate size, lighting and spacing requirements. That in fact the ratification of the Governor's Agreenent under Section 479.02 is not the enactment of a law. The Petitioner has in fact issued permits to others after signs have been constructed and should issue a permit for subject signs to Respondent. At the subject hearing the attorneys for both parties indicated that they desired to submit a Memorandum of Law but neither party submitted a memorandum.
Recommendation Require the Respondent to remove its signs within thirty (30) days from the date of the Final Order. Invoke the penalties of Section 479.18 for violation of Chapter 479. The Department of Transportation has ample enforcement power to remove the signs under Section 479.02 aside from the agreement: Brazil v. Division of Administration, 347 So.2d 755. See also Section 335.13 which states in part: "(1) No person shall erect any billboard or advertisement adjacent to the right-of-way of the state highway system, outside the corporate limits of any city or town, except as provided for in chapter 479." DONE and ORDERED this 5th day of October, 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 Robert D. Korner, Esquire 4790 Tamiami Trail W. 8th Street Coral Gables, Florida 33134
Findings Of Fact The Respondent, Empire Outdoor Advertising, Inc., is the owner of a sign located on the westbound or north side of Northwest 54th Street approximately 20 feet east of Northwest 12th Avenue, in Dade County, Florida. Northwest 54th Street is also designated as State Road 25A. The Respondent's sign is a structure or billboard designed to advertise or inform, and its copy is visible from the main traveled way of the adjacent roadway of State Road 25A or Northwest 54th Street. At the site where the Respondent's sign is located, State Road 25A or Northwest 54th Street is a part of the federal- aid primary highway system, and this roadway is open to the public for vehicular traffic. The Respondent's sign is located within 660 feet from the nearest edge of the pavement of State Road 25A. The Respondent's sign is situated within 500 feet from another outdoor advertising structure on the same side of the highway. These two signs face in the same direction and are both visible to westbound traffic on the north side of State Road 25A or Northwest 54th Street. The Respondent's sign has affixed to it copy which advertises Kraft Barbecue Sauce. This structure does not fall within any of the exceptions to the statutory licensing requirements set forth in Section 479.16, Florida Statutes, and it must have a state sign permit. The Respondent has not applied for an outdoor advertising permit from the Department, and no such permit has been issued by the Department for the subject sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the Respondent's sign which is the subject of this proceeding to be in violation of the applicable statutes and rules, and ordering its removal. THIS RECOMMENDED ORDER entered this 25th day of January, 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 25th day of January, 1984. COPIES FURNISHED Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 L. Martin Reeder, Jr., Esquire Post Office Box 2637 Palm Beach, Florida 33480
Findings Of Fact U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes. University Boulevard (SR 109) is not a federal-aid primary highway. Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing. The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard. Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by 48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit. This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign. The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
Findings Of Fact On October 13, 1981, Henderson Signs filed applications for four permits to erect two outdoor advertising signs in Jackson County, Florida, on the south side of Interstate 10, one approximately 2.65 miles and the other approximately 2.85 miles east of SR 276. These applications were field inspected by the Department's outdoor advertising inspector and by his supervisor, they were approved on or about November 2, 1981, and the Department issued permits for the requested locations to Henderson Signs. Subsequent to the issuance of these permits, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in the permits which authorized the subject signs to be erected. On or about March 23, 1983, the Respondent filed outdoor advertising permit affidavit forms requesting that the Department issue replacement tags for the subject signs because the tags previously issued had been lost. The Department replaced the older permit tags with new tags numbered AI998-10, AI999-10, AJ001-10 and AJ002-10. A business known as Brooks Construction Company is located within 800 feet of each of the subject sign locations. At various times some construction equipment can be seen parked in the vicinity of Brooks Construction Company. Although the view from 1-10 is partially obstructed by trees, this equipment might be seen from the interstate if one were looking at the right spot. Also, a small on-premise sign is located at this site, but the view of this sign is no better from 1-10 than the equipment is. The business known as Brooks Construction Company is located in a structure that resembles a brick residential building, which is used as a residence. A portion of this residential building is visible from 1-10, but is as obscured from view as the equipment and the sign are. The area where the subject signs are located is rural in nature. There is nothing about the building used by Brooks Construction Company that would indicate to a traveler on 1-10 that anything other than a residence was located at this site, even if the traveler were able to see this building from the interstate. Prior to the transfer of the permits from Henderson Signs to the Respondent, a representative of the Respondent testified that he inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. He further testified that he received assurance from 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. Henderson Signs 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 AI998-10, AI999-10, AJ001-10 and AJ002-10, held by the Respondent, Tri-State Systems, Inc., authorizing two signs on the south side of I-10, 2.65 miles and 2.85 miles east of SR 276 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 Post Office Box 2151 Orlando, Florida 32802-2151 Honorable Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether the sign of Petitioner should be removed for having been erected without a permit from the Respondent, the Department of Transportation.
Findings Of Fact A violation notice was issued by the Respondent against the Petitioner on August 18, 1977, alleging that Petitioner was in violation of Chapter 479.07(2) and Rule 14-10.04, inasmuch as Petitioner maintained a sign with no current tag visible, located .3 miles north of State Road 516 e/s on US Highway #1 (308 north, Mile Post 13.62) with copy "Fish Camp". Petitioner requested an administrative hearing. There was no dispute between the parties as to the location of the sign as cited in the violation notice but the parties stipulated that the copy of the subject sign advertised "Castaway Point, Scenic, Secluded, Relaxing, Enjoyable". It was undisputed that the sign carried no visible permit tag. There was no dispute that the sign was erected without a permit from the Respondent, Department of Transportation. The sign is a two faced sign, one faces north and one faces south. There is a permitted sign less than 500 feet from the subject sign facing the same way on the same side of the street, both for the north face and for the south face. There has been a sign located in the approximate position of the Petitioner's sign for many years advertising the business of the Petitioner over 100 feet away. The sign was lighted in 1975. The Petitioner contends: (a) that the first time he knew of the law was at the time he received the subject violation notice (b) that there are many other signs in the vicinity of his sign which are not 500 feet apart and which advertise businesses 100 miles away (c) that the Respondent, Department of Transportation, notified the large sign companies before the private individuals were notified and therefore gave the large sign companies the opportunity to permit their signs whereas the individuals had no opportunity to secure permits for their signs (d) that the public would have no way of finding Petitioner's business unless the sign is allowed to stand. The Respondent contends: (a) that the sign cannot be permitted inasmuch as it can not comply with the statutory spacing requirement in its present location and that it now stands without a current tag visible.
Recommendation Remove the Peittioner's sign, unless said sign is removed by Petitioner or is satisfactorily relocated within 10 days of the issuance of this order. DONE AND ENTERED this 21st day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Gary Dotson 315 Bay Boulevard Palm Bay, Florida 32905 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
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 Petitioner owns the sign located on the west side of and adjacent to U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for a permit to maintain a sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied. DONE and ENTERED this 5th day of June, 1991, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate. The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence. The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate. COPIES FURNISHED: William K. Jennings 119 E. Park Avenue Tallahassee, Florida 32301 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of February, 2001.
