Findings Of Fact V.J. Patel, general manager of the Best Western North Florida Inn, caused a sign to be erected a tenth of a mile south of State Road 143, advertising the motel. At all pertinent times, Shree Realty, Inc., Mr. Patel's employer, owned both the motel and the sign. At no time was the owner's name anywhere on the sign. Glenel Bowden, an outdoor advertising sign inspector employed by the Department of Transportation (DOT), told Mr. Patel he thought the unpermitted sign, visible to southbound traffic on Interstate 75, was unlawful. Mr. Pate1 and Mr. Bowden discussed the question of the sign's legality on several occasions. On August 28, 1989, Mr. Bowden posted a fluorescent orange violation notice on one of the poles supporting the sign, visible to anyone viewing either of the sign's faces from the highway. Petitioner's Exhibit No. 3. With this development, conversations between the two men ceased. When Mr. Bowden returned to the sign a few days after posting the violation notice, the notice had been removed. Although he stopped by the motel in search of Mr. Patel, and telephoned several times, leaving requests that Mr. Patel return his telephone calls, Mr. Bowden did not succeed in speaking to Mr. Patel again until October 17, 1989, the day the sign was taken down. On August 29, 1989, DOT's administrator for District Two, Tom Brown, signed a notice to show cause addressed to "Vijay" Patel at Route 1, Box 222, Jennings, Florida. DOT sent the notice by certified mail that day, and it arrived at the motel the following day. Tina Williams, a desk clerk, signed for it. The notice DOT mailed to Mr. Patel advised of the necessity to ask for a formal administrative hearing, if desired, within 30 days. The notice stated: You must comply with the applicable provisions of the said Statute(s) and Code(s) within thirty (30) days from the date of the posted notice . . . or, in the alternative, an administrative hearing must be requested by you within thirty (30) days of the date of this notice. . . . In either case, if you fail to comply within the thirty (30) day period above, then the . . . violation(s) shall be considered true . . . [one possible result being] removal of the sign without further notice. The notice, itself dated August 29, 1989, advised that the sign "was posted with a notice pursuant to Section 479.105(l)(a) on August 28, 1989." On October 2, 1989, 32 days after the notice DOT mailed reached the motel, Mr. Patel went to a lawyer's office. That day the lawyer signed and mailed a request for hearing on behalf of V. J. Patel. The hearing request reached DOT on October 5, 1989, 38 days after Mr. Bowden posted the notice of violation on the sign pole, and 37 days after DOT mailed notice to Mr. Patel. Until the final hearing, when counsel first disclosed the true owner of the sign to DOT, Shree Realty, Inc. never requested a hearing.
Recommendation It is, accordingly, RECOMMENDED: That DOT enter an order dismissing the request for formal hearing with prejudice. DONE and ENTERED this 13th day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of April, 1990. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 William J. Haley, Esquire Nancy Staff Slayden, Esquire Brannon, Brown, Haley, Robinson & Cole, P.A. Post Office Box 1029 Lake City, FL 32056-1029 Robert Scanlon, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issues in this case are whether Respondent should revoke Petitioner's sign permits and retrieve Petitioner's permit tags because Petitioner violated Sections 479.07(5) and 479.08, Florida Statutes, 1/ and Florida Administrative Code Rule 14- 10.004(7), 2/ by allegedly removing its sign from its property and by failing to display the permit tag prior to removing the sign.
Findings Of Fact Petitioner is a Florida corporation formed in 1983 by Mr. Rodney Forton. Mr. Forton is the president and sole shareholder of Petitioner. Sometime in 1987, Petitioner entered into a management agreement with Cotee River Outdoor Advertising Company ("Cotee River"). The management agreement provided that Cotee River would construct a sign on property owned by Petitioner on U.S. highway 19 in New Port Richey, Florida (the "Cotee River sign"). Cotee River agreed to pay Petitioner a portion of the advertising revenues from the sign. The Cotee River Permit On May 26, 1987, Cotee River applied for an outdoor advertising sign permit from Respondent. The application described the Cotee River sign as a rectangular wood sign measuring 10 feet by 20 feet, with its lowest point approximately 15 feet above ground level and its highest point approximately 25 feet above the crown of the road. Respondent approved the application and mailed the approval to Cotee River on May 29, 1987. On June 3, 1987, Respondent located the Cotee River sign in Respondent's sign inventory at, Section 595, ". . . N/B 5.06 in F/N." The number "5.06" indicates that the sign is located at milepost 5.06 on U.S. 19. 3/ Mileposts describe the location of each sign by the distance of the sign from a fixed point. Each of Respondent's outdoor advertising inspectors measures the milepost for each sign in his or her territory using a distance measuring instrument. Respondent then enters the milepost for each sign in Respondent's sign inventory. The milepost of 5.06 that Respondent assigned to the Cotee River permit was incorrect. In May 1987, Cotee River constructed a sign on Petitioner's property pursuant to the permit granted by Respondent. The sign was a metal monopole sign rather than the wood sign described in the application. The Cotee River sign was not constructed at milepost 5.060. Cotee River rented the sign to outdoor advertisers. However, Cotee River failed to pay any portion of the advertising revenue to Petitioner, and the parties resolved the matter by mutual agreement. Petitioner and Cotee River agreed that Cotee River would release its right to manage the Cotee River sign in consideration for the right to manage a sign located on other property owned by Petitioner. The agreement provided that Petitioner would pay Cotee River a prescribed sum in exchange for the performance of specific duties by Cotee River. Cotee River failed to perform the duties specified in the agreement. Petitioner refused to pay the balance of payments. Petitioner sued Cotee River. Cotee River went into bankruptcy and was dissolved. Petitioner's Permit On July 14, 1992, Petitioner applied for an outdoor advertising sign permit for the Cotee River sign. The application described the sign as an existing rectangular, metal, monopole "sign in place," measuring approximately 10 feet by 20 feet. The application stated that the sign was first erected in May 1987. Respondent approved the application from Petitioner and mailed the approval to Petitioner on October 12, 1992. Respondent again incorrectly listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/B 5.060 in F/N." Respondent issued permit tag number BG341-25 to Petitioner. Although Petitioner used the Cotee River sign to generate advertising revenue, Petitioner never displayed any tag numbers on the sign. The tag numbers remained in Petitioner's files until sometime in 1995. Dr. Goluba's Permit At about the same time that Cotee River went out of business in 1992, Robert L. Goluba, D.D.S., owned property immediately adjacent to Petitioner's property. Prior to March 1993, an unidentified representative of Respondent contacted Dr. Goluba. The representative told Dr. Goluba that there were two signs on Dr. Goluba's property that were going to be taken down if the sign permits were not renewed. The representative mistakenly identified one of the two signs as the Cotee River sign. The representative went on to explain that Respondent could avoid the expense of taking down the two signs if Dr. Goluba obtained permits for the signs. Dr. Goluba wanted the advertising revenues and agreed to obtain the necessary permits. On March 2, 1993, Dr. Goluba applied for a sign permit for the Cotee River sign he mistakenly believed to be located on his property. The application described the sign as an "existing" rectangular, metal, monopole sign measuring approximately 10 feet by 24 feet, with its lowest point approximately 18 feet above ground level and its highest point approximately 30 feet above the crown of the road. The application stated that the sign was first erected in May 1987. Respondent approved the application from Dr. Goluba and mailed the approval to him on March 8, 1993. Respondent listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/M.P. 4.870 in F/N." Respondent incorrectly listed Dr. Goluba's permit in the sign inventory at milepost 4.870. On March 24, 1993, Respondent issued permit number BG960-35 to Dr. Goluba. Although Dr. Goluba never derived advertising revenue from the Cotee River sign, he did display his permit on the sign. Dr. Goluba inadvertently failed to pay the fee required to renew the sign permit in 1994 and, therefore, failed to display current permits on the sign. On April 11, 1994, Respondent issued a Notice of Violation, Failure To Display Permit Tag. The New Outdoor Advertising Inspector In early 1995, a new outdoor advertising inspector assumed responsibility for the territory in which the Cotee River sign was located. On April 11, 1995, the inspector conducted a field inspection to verify the mileposts and signs in the territory for which he was responsible. The inspector correctly identified the milepost of the Cotee River sign as milepost 4.980. He found no sign subject to regulation by Respondent 4/ located at milepost 5.060. Milepost 5.060 and 4.980 are approximately 422 feet apart. Relevant law prohibits the location of regulated signs within 1,000 feet of each other. 5/ No exceptions to 1,000 foot prohibition applied to the Cotee River sign. The inspector concluded that Petitioner had removed the wood sign originally permitted to Cotee River in 1987 and which Respondent had incorrectly listed in its sign inventory as being located at milepost 5.060. On July 12, 1995, Respondent issued to Petitioner a Notice Of Violation -- Removed Sign. On August 22, 1995, Respondent ordered the revocation of Petitioner's tag permit because Petitioner had allegedly removed the Cotee River sign from milepost 5.060. Respondent never issued a Notice of Violation to Petitioner for failure to display his tag numbers on the Cotee River sign. Petitioner protested the revocation of its permit and refused to return the permit tags to Respondent. Petitioner requested an administrative hearing. In the meantime, Dr. Goluba's accountant had inadvertently failed to pay the permit fee for the Cotee River sign. Respondent placed the Cotee River sign on Respondent's "cutdown list" for failure to pay the required fees. On June 20, 1995, Respondent had the Cotee River sign cut down and removed. Respondent sent Dr. Goluba a bill in the amount of $4,990 for the cost of cutting the sign down and removing it. Prior to the date Respondent cut down and removed the Cotee River sign, Petitioner notified the inspector verbally and with written documentation that the sign was owned by Petitioner, located on Petitioner's property, and permitted to Petitioner. The inspector found that Respondent's records did not agree with Petitioner's records. The inspector informed Petitioner that the "cutdown order" came from Tallahassee and there was nothing the inspector could do. Dr. Goluba's tags were displayed on the Cotee River sign at the time it was cut down and removed. Ms. Maria Passanisi was the broker who managed the sign for Dr. Goluba. Ms. Passanisi was at the site when the sign was cut down and removed. She protested Respondent's action so vehemently that the police officers regulating traffic at the scene had to intervene to quell the disturbance. After Respondent cut down the Cotee River sign, Petitioner drove a stick into the ground where the sign had been located and displayed the permit tags for the removed sign on the stick. The tags were displayed on the stick at the time of the hearing. The Computerized Sign Inventory Respondent uses a computer system to maintain its sign inventory. The computer system does not accept the same milepost for two or more regulated signs. When Petitioner applied for its sign permit in 1992, Respondent was required to carry the Cotee River permit in the inventory as a void permit. The computer system would not accept the same milepost for Petitioner's permit and the void Cotee River permit. In order to circumvent the computer system, Respondent's supervisor of property management arbitrarily changed the milepost number entered for the Cotee River permit from milepost 5.060 to milepost 4.970. As late as September 20, 1993, Respondent's computerized sign inventory identified the Cotee River sign as being located at three incorrect mileposts. The inventory located the same sign permitted to Cotee River, Petitioner, and Dr. Goluba, respectively, at mileposts 4.970, 5.060, and 4.870. In 1995, the new outdoor advertising inspector correctly located the Cotee River sign at milepost 4.980. However, he mistakenly assumed that milepost 5.060 was the correct milepost for Petitioner's sign and erroneously concluded that Petitioner had removed its sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner did not remove the permitted sign and that the permits issued to Petitioner are valid. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this sign permit dispute, Petitioner, Department of Transportation (DOT), seeks to revoke the permit for an off- premise outdoor advertising sign owned by Respondent, North Florida Pecan 1 & 2, Inc. (Respondent), on the grounds that the original sign was destroyed by a fire in June 1998, the newly rebuilt sign has lost its nonconforming status, and any rebuilt sign is now illegal. In response to these charges, Respondent contends that the fire that destroyed the sign was an act of criminal mischief or arson, rather than an Act of God, and thus the sign still qualifies for a nonconforming status. The sign in question is located 12.2 miles north of the Flagler County line on the west side of Interstate 95 (I-95) facing south, and is perhaps a mile or so south of the intersection of State Road 207 and I-95 (intersection) in St. Johns County, Florida. Respondent does not own the property where the sign is located, and it conducts no other business activities on that property. The property on which the sign is located is zoned Open Rural by St. Johns County (County), and it is not designated predominately for commercial or industrial uses by the County under the County's future land use map, comprehensive plan, or zoning ordinances. The sign is used to advertise Respondent's combination gas station and "open-area fruit market" located "just off" the intersection. The parties have stipulated that the sign was originally constructed more than 20 years ago before the current sign regulations became effective; under the present law, it would be a nonconforming sign and illegal. On May 27, 1998, a thunderstorm occurred in St. Johns County, resulting in between one-quarter and one-half inch of rainfall in the area. Due to a lightning strike on a tree, a 2-acre fire started approximately 1,000 feet southwest of the intersection in the vicinity of the sign. Although firefighters believed they had "knocked out" the fire within a day or two, the fire continued to smoulder under the dampened top layer of organic matter for several weeks until June 15, 1998, when it "worked its way back to the surface," broke out again, and cleared the containment line of the earlier fire. Aided by a light wind from the southeast and extremely dry conditions, the fire quickly spread eastward at the rate of 1,000 to 1,500 feet every 15 minutes and consumed several hundred acres, including the land on which Respondent's sign was located, before it was brought under control. That fire is commonly referred to as the Fort Peyton fire. In determining the cause of the Fort Peyton fire, forestry officials could not find any indicators of arson, and visual burn patterns clearly indicated that the new fire's origin was where the May 27 fire had begun. Therefore, it was officially classified as a "rekindle or breakout" of the May 27 fire, which was started by lightning. Put another way, the fire was the result of an Act of God, which is "the sudden manifestation and forces of nature." On either May 30 or June 5, 1998, depending on whether court or forestry records are accepted as being the most accurate, a fire began in Flagler Estates, which, "as the crow flies," lies approximately 12 to 15 miles southeast of the Fort Peyton fire. The Flagler Estates fire, however, was the result of an unattended illegal burn which was started by three individuals and went out of control. The fire was brought under control the same evening by firefighters, but only after some 450 surrounding acres were destroyed. The three individuals were later charged with arson. Respondent established that the prevailing winds during May and June 1998 were from the southeast and that "spoilers" or "floaters" (hot debris) from existing fires can sometimes float in the air and ignite new fires several miles away. Indeed, Respondent's investigator observed spoilers from inland fires floating through the air some 8 or 9 miles out in the Atlantic Ocean while he was fishing during that period of time. Accordingly, Respondent contends that it is just as likely that a spoiler floated northeastward from the Flagler Estates fire on May 30, 1998, and ignited the Fort Peyton blaze, some 12 to 15 miles away. If this theory is accepted, it would mean that the Fort Peyton fire would be attributable to arson, and not to an Act of God. The foregoing assumption has been rejected for several reasons. First, spoilers from the Flagler Estates fire did in fact ignite several spot fires in the area, but all of these spot fires occurred on the same day as the fire started and were within an eighth of an mile from the Flagler Estates perimeter. Second, it is highly unlikely that a spoiler would float up to 15 miles and then lie dormant for two weeks before igniting the Fort Peyton fire. Finally, the theory goes counter to the more persuasive evidence given by the supervising forester who investigated the Fort Peyton fire and concluded that it was an outbreak of the earlier fire that was started on May 27, 1998. After the sign was destroyed, Respondent rebuilt the sign at the same location using substantially the same materials that had composed the sign before it burned. However, the materials used to rebuild the sign were not part of the sign structure which was burned in the Fort Peyton fire. The new sign is the same size, shape, and height of the destroyed sign.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by North Florida Pecan 1 & 2, Inc., under sign permit number BR 252-55 is illegal and must be removed. The permit should also be revoked. DONE AND ENTERED this 17th day of March, 2000, 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 day 17th of March, 2000. 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 J. Stephen Alexander, Esquire 19 Old Mission Avenue St. Augustine, Florida 32084 Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
The Issue By a Petition filed October 21, 1988, Petitioner sought a determination, pursuant to Section 120.56, Florida Statutes, that a non-rule policy of the Department of Transportation was a rule that: (a) was not adopted properly under Chapter 120 Florida Statutes, and (b) was an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner submitted application for state outdoor advertising permits which were received in the Department of Transportation (DOT) District Office on August 8, 1988, for a location on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. Petitioner was denied the permits on the ground that permits had been issued to another outdoor advertising company prior to July 1, 1984, for a location less than a thousand feet from Petitioner's proposed site on the same side of the highway. There have been no tags displayed or sign maintained at the earlier site since issuance of the permits. It is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within 30 days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with sections 479.07(5)(b) and (8)(a), Florida Statutes. DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes. Petitioner is in the outdoor advertising business, particularly off- premises signs, and is so licensed. The spacing impediment caused by the earlier permits is the only basis for denial of Petitioner's permit applications by DOT as Petitioner meets all other requirements. Petitioner will have to confront the agency's "interpretation" with each permit application it makes. Petitioner is currently challenging the specific above-referenced permit denials in Section 120.57(1) proceedings which both parties herein opposed consolidating with the instant rule challenge when the undersigned suggested that possibility. Respondent has not challenged Petitioner's standing to bring this rule challenge, and Petitioner has demonstrated standing to bring it. The Petitioner asserts that the agency's acknowledged foregoing interpretation of the named statutes constitutes an arbitrary and capricious unpromulgated rule, applied without legislative authority and prejudicing Petitioner and all like-situated lessees of off-premises signs because it creates a perpetual grandfather clause for sign permits in existence prior to July 1, 1984, and new applicants post-1984 cannot know where earlier permits have been issued due to the lack of DOT enforcement of tag posting and sign maintenance requirements. Phil Brown, DOT Right of Way Specialist, testified by deposition that, indeed, if a pre-1984 permittee never erects a sign or posts tags, the spacing impediment can only be located through DOT records, in this case, a computer search. Phil Brown relied on DOT training sessions which advised him that Section 479.07(9), Florida Statutes, requires the current agency interpretation/non-enforcement of Section 479.07(5)(a) to pre-1984 permittees, and he applied it to Petitioner's application. In so doing, he utilized Section 479.05(9) so as to count the thousand foot spacing requirement for the permit site which had been requested by the Petitioner not from a permitted sign (which is the statutory phrase contained in Section 479.09) or from a sign in existence, i.e. a sign already erected, or from a tagged erected sign, or from a displayed tag, but instead counted the thousand feet, as he had been directed, from the site described on the permit issued pre-1984. Gary Kissinger, designated by DOT as its employee most knowledgeable about the application of statutes and rules to outdoor advertising, testified by deposition that pre-1984 outdoor advertising sign permits can, absent a future law change, go into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as they keep renewing and paying their fees, even though Mr. Kissinger understood the purpose of the 1984 amendments to be the prevention of advertisers "stockpiling" unused sites/permits from the enactment date forward. No evidence established Mr. Kissinger as the drafter of the legislation or of the agency rules promulgated thereunder, and no evidence was submitted in the form of committee minutes, notes, legislative journals or by other means to clearly establish a legislative intent either coinciding or differing from Mr. Kissinger's perception. Mr. Kissinger relies for the DOT "interpretation" upon the definition of "nonconforming" signs given in Section 479.01(12), Florida Statutes. He does not rely for DOT's interpretation on the exceptions listed in Section 479.16, Florida Statutes. It is his view that notwithstanding Rule 14-10.006(1)(b)(7), Florida Administrative Code, those permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained/displayed. Even though DOT's current permit application form requires applicants such as Petitioner to state, to the best of their knowledge, the location of the permitted sign nearest to the site for which they are applying, there is no way any post-1984 applicant can find out about preexisting unutilized permits on its own without getting that information from DOT. Only after the application is submitted, does DOT run its own check and deny the new permit application if a permit for a site within the distance given in Section 479.09 exists regardless of whether there is a sign erected or a tag displayed at the earlier permit's site. DOT applies its interpretation statewide and asserts that all the agency is doing is to not apply the posting and erection requirements of Section 479.07(5)(a) retroactively to pre-1984 permits, upon recognized standards of prospective statutory construction, and that the agency has not established any policy or rule thereby. The statute in question came about as a substantial rewording of Section 479.07, Florida Statutes, by way of amendments contained in Chapter 84- 227, Laws of Florida, which provided as follows: Sign permit required.-- Except as provided in s. 479.16, no person shall erect, operate, use, maintain, or cause to be erected, operated, used, or maintained, any sign on the state highway system outside incorporated areas or any portion of the interstate or federal-aid primary highway systems without first obtaining a permit there for from the department and paying the annual fee as provided herein. No person shall apply for a permit unless he has first obtained the written permission of the owner or other person in lawful possession or control of the site designated as the location of the sign in the permit application. (3)(a) Application for a sign permit shall be made on a form prescribed by the department and a separate application shall be submitted for each permit requested. A permit shall be required for each sign facing. As part of the application, the applicant or his authorized representative shall certify in a notarized signed statement that all information provided therein is true and correct and that, pursuant to subsection (2), he has obtained the written permission of the owner or other person in lawful possession of the site designated as the location of the sign in the permit application. Every permit application shall be accompanied by the appropriate permit fee; a signed statement by the owner or other person in lawful control of the site on which the sign is located or will be erected, authorizing placement of the sign on that site; and, where local government regulation of signs exists, a statement from the appropriate local government official indicating that the sign complies with all local government requirements and that the agency or unit of local government will issue a permit to that applicant upon approval of the state permit application by the department. The annual permit fee for each sign facing shall be $25 for 20 lineal feet or less, and $35 for over 20 lineal feet. No fee may be prorated for a period less than the remainder of the permit year to accommodate short-term publicity features; however, all first-year fees may be prorated by payment of an amount equal to one-fourth of the annual fee for each remaining whole quarter or partial quarter of the permit year ending on January 15. Permit applications shall be acted on by the department within 30 days after receipt of the application by the department. Applications received after September 30 shall include fees for the last quarter of the current year and fees for the succeeding year. (4)(a) For every permit issued, the department shall furnish to the applicant a serially numbered permanent metal tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway, and shall be attached in such manner as to be plainly visible from the main-traveled way. The permit shall become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit shall be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. A permit is valid only for the location specified thereon. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfers fee of $5 for each permit to be transferred. However, the maximum transfer fee is $100 for any multiple transfer between two outdoor advertisers in a single transaction. If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued shall apply to the department for a replacement tag Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site. (5)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits of the permittee which were issued prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags not renewed shall be returned to the department for cancellation by January 15. Permit tags not renewed or returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If the permittee has not submitted his fee payments by January 15, the department shall, no later than February 1, send a violation notice or the permittee requiring fee payment within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due, or, in the alternative to these payments, the filing of a request for an administrative hearing to show cause why his signs should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit shall be automatically reinstated and such reinstatement shall be retroactive to January 15th. If the permittee does net respond to the violation notice within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (6)(a) Any sign not granted a permit by the effective date of this act shall not be granted a permit unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway; One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway; The minimum spacing provided herein shall not preclude the permitting of V-type, back-to-back, side-to-side, stacked or double faced signs at the permitted sign site. No sign shall be granted a permit pursuant to this chapter to locate on any portion of the interstate or federal-aid primary highway systems that: Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporate area; or Exceeds 65 feet in sign structure height above the crown of the main-traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign of facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. (7) Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this provision and permits shall not be issued for signs in such areas. The department shall adopt rules within 130 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enacted or enacted primarily to permit signs. A Reviser's Bill renumbered and made scrivener's changes in the amendatory language so that the "interpreted" portions of Section 479.07 were codified as follows: (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The, permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permit is valid only for the location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100. A permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site. (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags which are not renewed shall be returned to the department for cancellation by January 15. Permit tags which are not renewed or returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side-to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main-traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. Section 479.01(12) as amended provides: 'Nonconforming sign' means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions; of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was; lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. [Emphasis supplied.] The effective date(s) of Section 479.07 is significant as provided in Section 27 of Law 84-227: This act shall take effect October 1, 1984, except that the amendments to Section 479.07 F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis Supplied.] Likewise, the exceptions set out in Section 479.16, Florida statutes, as amended by Chapter 84-227, must be considered. They are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits," in that language. The new statue defines "erect" at Section 479.01(4) and "sign" at Section 479.01(14) as follows: (4) "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change to advertising message or customary maintenance or repair of a sign. (14) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department. Both of these foregoing subsections are substantially the same as their predecessors in the pre-1984 statute. There appears to be no dispute that DOT has lawfully promulgated the following rules in order to facilitate its administration of Chapter 479, Florida Statutes, as amended 1984: Rule 14-10.004(2)(d)--The application shall be notarized and shall contain . . . The sign's distance from the right of way, the nearest permitted sign on the same side of the highway, and the nearest intersection on the same side of the highway. [Emphasis supplied.] Rule 14-10.004(6)--Permits shall be renewed in accordance with Section 479.07(5). [Emphasis supplied.] Rule 14-10.004(9)--A sign granted a permit shall be erected and thereafter maintained in accordance with Section 479.07, F.S. and this Rule Chapter. [Emphasis Supplied. Rule 14-10.004(10)--The permanent metal tag issued by the Department shall be displayed and maintained in accordance with Section 479.07(5)(a) F.S. Rule 14-10.006(1)(b)(7)--The following shall apply to signs for which the initial valid permit application was submitted after July 1, 1984: Official signs, and signs exempt under Section 479.16 and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements. [Emphasis supplied.] Rule 14-10.007(1) provides in pertinent part: . . . A sign which was conforming on June 30, 1984, but which does not comply with the size, spacing, and height requirements of Section 479.07(9) F.S. shall not be considered a nonconforming sign. [Emphasis supplied.] Rule 14-10.007(2)(e) provides in pertinent part: (2) The following shall apply to nonconforming signs: (e) A sign face which remains void of advertising matter for 12 months or longer shall be deemed an abandoned or discontinued sign and shall lose its nonconforming status. [Emphasis supplied.] None of these duly promulgated rules has been challenged in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that respondent, Department of Transportation, enter a final order denying the application of petitioner, Lamar Advertising Company, for a sign permit. RECOMMENDED this 21st day of March, 1985, at Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of March, 1985.
Findings Of Fact The Petitioner, Carter Signs is in the business of outdoor advertising which includes the installation, repair and maintenance of signs, billboards, or displays on real property. Pursuant to a twenty-year term lease that began on March 1, 1988, the Petitioner has leased the real property described as: Strap No. 344525-00- 00002.000 lying east of 1-75, in Lee County, Florida. The lease describes the specific intended use of the real property under the lease. The lessee has agreed to use and occupy the premises solely for the purpose of outdoor advertising. The real property is located in Lee County, Florida, within 660 feet of Interstate Highway 75, a highway in the interstate highway system. The property is approximately 1.5 miles south of the Daniel Road interchange on the east side of the highway. The Lee County Comprehensive Plan, which has been enacted by the county, designates the area in which real property is located as "Airport Commerce." Under the plan, this land is approved for "mixed use developments consisting of light manufacturing or assembly, warehousing and distribution facilities; offices; ground transportation and airport related interconnection activity; and hotels/motels, meeting facilities and other hospitality services." The Petitioner's application to Lee County for a permit to erect the proposed sign on the property was approved. The county permit shows that the property is zoned "agricultural." If the "agricultural" zoning classification is violated, the county permit becomes void. The application for permit to the Department was denied because Section 479.111(2), Florida Statutes, allows signs within a controlled portion of an interstate highway only if the sign is within a commercial-zoned area, an industrial-zoned area, a commercial-unzoned area or industrial-unzoned area. In this case, the proposed sign was to be placed in an agriculturally zoned area.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER 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 4th day of January, 1994.
The Issue As stated by the Administrative Law Judge in her Recommended Order, the issue presented is: "Should certain outdoor advertising signs owned by Respondent Whiteco Metrocom (now known as Chancellor Media Whiteco Outdoor Corporation) and Respondent Chancellor Media Whiteco Outdoor Corporation (Chancellor) be removed as a result of notices of violations brought by Petitioner Department of Transportation (the Department) against Chancellor?"
Findings Of Fact After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact contained in paragraphs 1 through 3, 5 through 17, and 19 through 20 of the Recommended Order are supported by the record and are accepted. Findings of Fact contained paragraph 4 regarding the lack of evidence regarding the designated land use for the areas in which the signs are located are rejected and deleted as not supported by competent substantial evidence. The Findings of Fact contained in paragraph 4 as herein modified are adopted and incorporated by reference as if fully set forth herein. Finding of Fact No. 18 is modified as hereinabove corrected, and as modified is adopted and incorporated by reference as if fully set forth herein.
Conclusions This proceeding was initiated by Requests for Formal Administrative Hearing filed by Respondent, WHJTECO METROCOM, and Respondent, CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION (hereinafter collectively CHANCELLOR), on January 14, 1999 and January 25, 1999. The requests for administrative hearing were filed in response to Notices of Violation issued by Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), for CHANCELLOR'S sign structures located on US 1 and Interstate 95, in Volusia County, Florida. The Notices were issued because CHANCELLOR reerected its nonconforming outdoor advertising signs which were destroyed by fire. The matter was referred to the Division of Administrative Hearings (hereinafter DOAH), and DOAH issued its Initial Orders assigning the cases to Stephen F. Dean, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. On April 20, 1999, Judge Dean issued an order consolidating the cases and setting the matters for hearing on August 27-29, 1999. On August 25, 1999, Suzanne F. Hood, a duly appointed Administrative Law Judge to whom these matters were reassigned, issued an "Order Canceling Hearing and Requiring Joint Stipulation." In her order, Judge Hood ordered the parties to file a "Joint Stipulation of Facts as to the status of the subject billboards as conforming or nonconforming and the reasons therefore" and a "Joint Stipulation of Record Evidence, listing specific testimony and exhibits from the consolidated cases beginning with DOAH Case Nos. 99-0486T, 99-0903T, and 99-0659T." The parties entered into and filed a Joint Stipulation dated August 25, 1999, which is attached hereto and incorporated by reference. Thereafter, DOAH issued an order severing several of the originally consolidated cases and closing the files on those cases. On September 20, 1999, the DEPARTMENT filed its "Notice of Submitting Record." On September 22, 1999, CHANCELLOR submitted its Proposed Recommended Order, and on September 28, 1999, the DEPARTMENT filed its Proposed Recommended Order. On October 28, 1999, the Administrative Law Judge issued her Recommended Order. On November 5, 1999, the DEPARTMENT filed its exceptions to the Recommended Order, and on November 10, 1999, CHANCELLOR submitted its exceptions to the Recommended Order. On November 15, 1999, CHANCELLOR filed responses to the DEPARTMENT'S exceptions and on November 18, 1999, the DEPARTMENT filed responses to CHANCELLOR'S exceptions.
Appeal For This Case THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULED OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Peter Wright District Five ODA Administrator 719 South Woodland Boulevard DeLand, Florida 32721-0057 Aileen M. Reilly, Esquire Livingston & Reilly, P.A Post Office Box 2151 Orlando, Florida 32802-2151 Juanice Hagan Assistant State Right of Way Manager for Operations Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 22 Tallahassee, Florida 32399-0450 Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Attachment STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION, Petitioner, vs. DOAH CASE NOS.: 99-0904T 99-0905T WHITECO METROCOM DOT CASE NOS.: 99-0022 99-0023 Respondent. / DEPARTMENT OF TRANSPORTATION, Petitioner, DOAH CASE NOS.: 99-0982T 99-0984T vs. DOT CASE NOS.: 99-0029 99-0031 CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION Respondent. / JOINT STIPULATION The parties, by and through their undersigned counsel, submit the following Joint Stipulation pursuant to the order vacating the Final Hearing scheduled in this matter for August 26 and 27, 1999, and respectfully request that the above captioned matters be decided on the basis of the matters stipulated to herein, together with the records identified herein.
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.
