Findings Of Fact By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg installed a sign on U.S. 301, 7.19 miles south of I-4 in violation of Rules 14- 10.04 and 14-10.05, Florida Administrative Code. The sign in question is an outdoor advertising, sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years. The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road. Until 1976, the road on which the sign borders was a federal-aid secondary road. Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979. Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign. Both parties agreed to submit the legal issue to the Hearing Officer for determination.
Findings Of Fact The Respondent, E. T. Legg and Company, owns the sign which is the subject of this proceeding, located on U.S. 441 or S.R. 7, approximately 1,117 feet north of Snake Creek Canal in Dade County, Florida. The sign faces north and south. The Department issued permits for a sign in 1979, one for the north face and one for the south face. These permits authorized a sign on U.S. 441 (State Road 7), approximately 550 feet north of Snake Creek Canal in Dade County, Florida. It is not clear from the record whether these permits were issued for the subject sign or for another sign but the permit tags issued for these permits were affixed to the subject sign until these tags were stolen. The Respondent's permit applications stated that the sign to be erected would be located 500 feet from the nearest existing sign. Subsequent to the Department's issuance of the permits for the subject sign, it determined that the Respondent's sign had been built closer than 500 feet from the nearest sign. The Respondent stipulated that there is less than 500 feet between the subject sign and the sign nearest to it. The sign nearest the subject sign is also owned by the Respondent. It is a two-faced permitted structure located south of the subject sign, and it was in place when the subject sign was erected. In 1981, the Respondent applied for tags to replace the permit tags the Department had issued pursuant to the 1979 application. These tags had been stolen. Replacement tags were not issued by the Department for the reason that it had determined the subject sign to be in violation of the spacing rule requiring 500 feet between signs. Permit fees had been paid by the Respondent through the year 1981. In October of 1981, the Department initiated this proceeding, charging the Respondent with violations of Chapter 479, Florida Statutes for not displaying permit tags on the subject sign, and for violating the spacing rule by locating this sign within 500 feet of an existing sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order dismissing these charges against the Respondent, E.T. Legg and Company, subject to payment by the Respondent of all permit fees due for the years 1982 through 1986. THIS RECOMMENDED ORDER entered this 31st day of July, 1986 at 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 31st day of July, 1986. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Charles C. Papy III, Esquire 201 Alhambra Circle Suite 502 Coral Gables, Florida 33134 Hon. Thomas E. Drawdy Secretary Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel 562 Haydon Burns Bldg. Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Bennett Road, approximately 280 feet north of the intersection of Bennett Road with State Road 50, in Orange County, Florida. This location is approximately 1.4 miles west of SR 436, as alleged in the violation notice. The subject sign is located on the west side of Bennett Road facing north and south which is parallel to State Road 50. State Road 50 is a federal-aid primary highway. Bennett Road is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in 1984. The subject sign is visible to traffic on State Road 50, although it is perpendicular to Bennett Road and parallel to State Road 50. There is another permitted sign owned by National Advertising Company located on the north side of State Road 50, east of the Bennett Road intersection, approximately 114 feet from the subject sign. The National sign faces east and west, not north and south, and it is not on Bennett Road. Another permitted sign owned by Peterson Outdoor Advertising is located on the north side of State Road 50, approximately 475 feet west of the Bennett Road intersection. This sign faces east and west, not north and south as the subject sign does, and it is not on Bennett Road as the subject sign is.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, 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 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent, Harry Moody Signs, owns a sign which was erected in December of 1981 without a state permit. This sign is located 45 feet from the edge of the pavement or curb line of U.S. 27/301/441, and 32 feet from C-434 (Alternate 441) inside the corporate limits of Belleview, in Marion County, Florida. U.S. 27/301/441 is a federal-aid primary highway open to traffic, and C-484 is a non-controlled road. U.S. 27/301/441 is considered to be a north/ south highway; however, it runs almost east and west in Belleview where it intersects C-484, which runs generally northeast and southwest at the point of intersection. The Respondent's sign is located northeast of U.S. 27/301/441, facing a westerly direction, and is visible to traffic from the southbound lane of this controlled highway. The sign in question is approximately 298 feet from a permitted sign (permit no. 947-6) which is also situated on the northeast side of U.S. 27/301/141. Although the Respondent's witness testified that the sign in question is more parallel to the primary highway than perpendicular to it, and that the permitted sign is perpendicular to this highway, both signs are visible from U.S. 27/301/441, and the copy on the Respondent's sign can be read from a distance of 300 to 400 feet away, at least. The Petitioners witness testified that the Respondent's sign stands at an angle of approximately 45 degrees from the permitted sign, and becomes visible at a distance of 929 feet in the southbound lane of U.S. 27/301/441. Additionally, the subject sign first begins to come into view on Alternate 441 (C-484) at a distance of 470 feet. At a distance of 500 feet on Alternate 441 the sign is not visible because a building located close to the road blocks the view. The measurements of distances on Alternate 441 were made by using a calibrated hand wheel on the side of the road. The distances on U.S. 27/301/441 were measured by using a calibrated electric odometer in an automobile. The Department of Transportation permits, regulates and controls signs within city limits that are adjacent to both controlled roads and non-controlled roads when the signs are visible from the main traveled way of the controlled road (federal-aid primary highway). The Respondent applied for a permit after the sign had been erected, and this application was denied because the Respondent's sign was located 298 feet from a permitted sign, causing a spacing violation. The permitted sign is also owned by the Respondent, and this permitted sign is being used as an on- premise sign. However, the state permit is currently in effect, and the Respondent plans to maintain the sign as a permitted sign. The Respondent receives revenues from rental of the permitted sign, and the Respondent pays the property owner for use of the permitted sign's location.
Recommendation Based on 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 the 1st day of November, 1983. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1983. COPIES FURNISHED: Gerald S Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Holden Avenue, approximately 400 feet west of the intersection of Holden Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately 4.04 miles south of SR 50, as alleged in the violation notice. The subject sign is located on the south side of Holden Avenue, facing east and west which is parallel to U.S. 17/92/441. U.S. 17/19/441 is a federal-aid primary highway. Holden Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660 feet of a federal- aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected in February of 1985 without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in The subject sign is visible to traffic on U.S. 17/92/441, although it is perpendicular to Holden Avenue and parallel to U.S. 17/92/441. There is another permitted sign owned by Cashi Signs located on the west side of U.S. 17/92/441, approximately 686 feet south of the Holden Avenue intersection. This sign faces north and south, not east and west and is not on Holden Avenue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on July 26, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, 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 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 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 January 7, 1980, Dowden Funeral Home, Respondent, obtained a building permit from Highlands County (Exhibit 4), to construct a wooden sign along U.S. 17 near Sebring, Florida; and thereafter constructed a 20-foot by 14- foot sign along U.S. 17, 0.25 mile northeast of U.S. 27. The location is just outside the city limits of Sebring, Florida, and U.S. 17 is a federal-aid primary highway. Respondent's sign is located approximately 200 feet from a Barnett Bank sign which was permitted and erected in 1977 (Exhibit 6). Respondent's witness contends that when he obtained the building permit and inquired if additional permits were needed to erect this sign, he was told no by the county building officials.
The Issue Whether the application contains knowingly false or misleading information; or Whether the Department is estopped to revoke the permits.
Findings Of Fact By application for outdoor advertising sign permits dated December 19, 1989 (Exhibit 1), Dolphin Outdoor Advertising requested permits for a sign to be located along I-4 in Polk County, Florida 100 feet west of Kraft Road. The application stated that the proposed sign was 1600 feet from the nearest permitted sign. The District DOT sign inspector to whom this application was referred for processing checked the records for signs located within 1000 feet of the proposed location under the mistaken understanding that the minimum spacing requirement for signs along interstate highways was 1000 feet. After determining there were no valid conflicting signs, the inspector, who had been employed by the department approximately six months, approved the application and tags numbered AY 108-35 and AY 109-35 were issued on February 24, 1989. In the interim, the applicant, upon learning that his application would be approved, contacted the landowner and entered into a lease for the property and on February 17, 1989, paid Florida Log and Timber $5000 for the first year's lease (Exhibit 11) on this property. The applicant also paid the finder of the site some $4300 for services and expenses in November, 1988. (Exhibits 7 and 8) In mid-March 1989, while discussing these permits with her supervisor, the inspector who had issued the permit to Respondent learned that the required spacing between signs along interstate highways is 1500 feet instead of 1000 feet which is the minimum spacing along federal-aid primary highways. By letter dated March 17, 1989 (Exhibit 3) the Department advised Respondent that permits AY 108-35 and AY 109-35 were issued in error because of a valid existing permit for a sign located 1056 feet west of Respondent's proposed sign. The permits were therefore stated to be no longer valid, and these proceedings followed. Petitioner's letter of March 17, 1989 was received by Respondent before construction on the sign started but after Respondent received a building permit from Polk County dated February 27, 1989 at a cost to Respondent of $101.20.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued revoking permits AY 108-35 and AY 109-35 issued to Dolphin Outdoor Advertising for a sign along I-4 100 feet west of Kraft Road in Polk County. DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Scott Hill, Pro Se 1718 Golfside Drive Winter Park, Florida 32972 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
The Issue The issue is whether Respondent's Notices of Intent to Revoke Sign Permit should be upheld.
Findings Of Fact Petitioner, Woody Drake Advertising, Inc., owns and operates an outdoor advertising sign (the "Sign"), which is located off Interstate 10 (I-10) in Leon County, Florida, and bears tag numbers AG329 and AG850. Respondent, Florida Department of Transportation, is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway System, Interstate, or Federal-aid Primary System (controlled portion) in accordance with Chapter 479, Florida Statutes. Jack Wainwright, Jr., is the owner and operator of Petitioner, having purchased the company from his parents approximately 13 years ago. Mr. Wainwright's family has been in the business of outdoor advertising since at least 1976. The Sign consists of one structure with two faces and is located within the controlled portion of I-10, .239 miles east of Still Creek. The Sign is a non-conforming, wooden, V- shaped, 12-pole sign. On June 28, 2009, the Sign sustained damage from high winds associated with a storm. The next day, after being notified of the damage, Mr. Wainwright went to the sign's location and physically inspected it. Grimes Cranes is in the business of, among other things, building and maintaining outdoor signs, such as the Sign at issue. Walter Grimes has owned Grimes Cranes since 2000. Mr. Grimes has worked in the business of erecting and maintaining wooden and metal outdoor advertising signs for approximately 23 years. On average, Mr. Grimes erects 18-to-20 outdoor advertising signs a year. By his estimate, Grimes Cranes has moved, erected, or maintained approximately 75 percent of the outdoor advertising signs in Tallahassee, Florida. Mr. Wainwright contacted Mr. Grimes to obtain an estimate to repair the Sign. They met at the Sign's location on either June 30 or July 1, 2009. Based upon his experience and visual inspection of the uprights, Mr. Grimes concluded that five of the 12 uprights could be reused when repairing the Sign as they were neither broken, splintered, nor otherwise damaged. Mr. Grimes concluded that 35-to-40 percent of the total Sign had been destroyed by the storm. This conclusion was based upon his personal examination of the Sign and his experience in maintaining and erecting outdoor advertising signs. After Mr. Grimes' inspection of the Sign, Mr. Wainwright disassembled the Sign and transported the materials to his father's farm. Once he disassembled the Sign, Mr. Wainwright assessed the damage to it. Based upon his knowledge and experience as owner of Petitioner sign company for the past 13 years, Mr. Wainwright determined that six of the 12 uprights were reusable. Although Mr. Grimes intended to use the five uprights he found to be undamaged in the rebuilding of the Sign, he was not able to do so because Mr. Wainwright had removed the uprights from the area. Mr. Grimes determined it was simpler and more economical to install new uprights on the site rather than haul the reusable ones from their present location on the Wainwright family farm. Ms. Lynn Holschuh has been Respondent's State Outdoor Advertising and Logo Administrator since 1992. While well educated with both a bachelor's and master's degree in English, she has not worked in the business of erecting outdoor signs; has never personally erected an outdoor advertising sign; and has no personal experience building an outdoor advertising sign. The two Notices issued by Respondent that are the basis for this action were signed by Ms. Holschuh as the State Outdoor Advertising and Logo Administrator. The Notices state Florida Administrative Code Rule 14-10.007(6)(a) as the basis for the proposed action, alleging that "[m]ore than 60% of the upright supports have been damaged such that replacement is required." Ms. Holshcuh never personally inspected the Sign's uprights and has no personal knowledge as to whether eight or more of the uprights were damaged such that normal repair practices of the industry required their replacement. The Notices were issued after she reviewed photographs taken on July 7, 2009, by an inspector for Respondent. Ms. Holschuh determined, after inspecting the photographs, that ten of the Sign's uprights had been damaged since only two were standing when the inspector took the pictures. This was an assumption on her part based upon the photographs, not her personal inspection of the Sign and uprights following the damage from the storm. Respondent's inspector returned to the site of the Sign on August 17, 2009, took additional photographs, and noted that a new 10-pole sign had been erected on the site. The Sign had been permitted as a 12-pole sign, but had been rebuilt as a 10-pole sign with 10 brand new uprights. Respondent interprets Florida Administrative Code Rule 14-10.007(6)(a) as requiring that the sign owner use the poles that are not damaged in rebuilding the sign. Respondent does not interpret this rule provision to allow the erection of a completely new sign. Ms. Holschuh admitted that Florida Administrative Code Rule 14-10.007(6)(a) does not explicitly require the actual re-use of the non-damaged upright supports when a non-conforming sign is re-erected. Respondent concedes that as long as 60 percent of the uprights had not been damaged to the extent that replacement of the upright supports was required due to the damage, the sign could be disassembled and re-erected. Ms. Holschuh agreed that the Sign could have been disassembled and re-erected if no more than seven of the uprights had sustained damage. Damage to seven of the uprights would constitute 58.33 percent replacement while damage to eight of the uprights would constitute 66.67 percent replacement.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Notices of Intent to Revoke Sign Permit. DONE AND ENTERED this 7th day of January, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2010. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Claude Ridley Walker, Esquire Guilday, Tucker, Schwartz & Simpson, P.A. 1983 Centre Pointe Boulevard, Suite 200 Tallahassee, Florida 32308-7823 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie C. Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location. The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.
Findings Of Fact Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked. DONE AND ENTERED this 11th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of May, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street Pensacola, Florida 32503 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
