Findings Of Fact Petitioner owns the sign located 186 feet West of Mulberry Point, Citrus County, Florida. Petitioner also owns the property on which the sign is located. The sign advertises a community development which Mr. Infantino is developing. The sign is important to his business. The sign is located on a parcel of real estate adjacent to State Road 44. State Road 44 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to sign's erection. The sign was originally erected in 1980 or 1981. Mr. Infantino had the sign erected by a professional sign company. At that time, the area in which the sign is located was zoned commercial by the county. 1/ No state sign permit was obtained by either Mr. Infantino or the company that erected the sign. Mr. Infantino was not aware of the state sign permit requirement and, therefore, the sign has never been permitted in the nine or ten years of its existence. In 1986, the area in which the sign is located was rezoned by the county. The new designation given by the county to the area was Coastal Lakes - 2, an environmentally sensitive area with a primarily residential use. However, the County allowed the sign to remain as a non-conforming structure. The evidence failed to demonstrate whether there were at least three (3) businesses within 1600 feet of Petitioner's development. Additionally, the evidence did not demonstrate that the surrounding area was primarily commercial in its use or was customarily used in a commercial character. 2/ In 1989, after nine or ten years of the sign's existence, an unnamed DOT inspector discovered the sign involved in this case. The late discovery was never adequately explained at the hearing. However, upon its discovery, the sign was determined not to have a state permit. Mr. Infantino was cited for the violation in a Notice to Show Cause issued by the Department. In response to that Notice, Petitioner filed a permit application with Respondent. The application was reviewed and denied primarily because the area in which the sign was located was not currently zoned commercial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's application for a permit to erect and maintain a sign on State Road 44, on real estate located at Section 8, Township 19, Range 21, Parcel 12200, in Citrus County, Florida, be denied. DONE and ENTERED this 3rd day of February, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1990.
The Issue Whether the Petitioner's outdoor advertising sign located at 1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF. Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits. On June 26, 1997, the above-referenced sign did not have a current valid permit. On June 26, 1997, the above-referenced sign was not an on-premises sign. Charles Tucker is the owner of the subject sign and the property on which it is located. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon. Charles Tucker has owned the subject sign since 1974. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes. There has been a seven-year period of time during which the subject sign displayed advertising copy. No structural changes have been undertaken on the subject sign since it was constructed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued. DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 6th day of March, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Mark Gamble Real Estate Representative Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811 Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact On or about May 8, 1981, the Department issued permit number AE316-10 to Henderson Signs. This permit authorized the erection of a sign to be located approximately 1.9 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area, and the permit was granted because of its proximity to a nearby commercial activity known as Imperial Nurseries. Subsequently, the Respondent, Tri-State Systems, Inc., purchased the subject permit from Henderson Signs, and thereafter the sign in question was erected by the Respondent. The area where this sign was placed is rural in nature and generally suitable for agricultural activities. However, the business being conducted by Imperial Nurseries in 1981 was the growing of ornamental evergreens primarily for wholesale distribution in Northern markets. These ornamental evergreens were grown in containers on top of the ground, and shipped by refrigerated trucks. A view of the area in 1981 would show evergreen plants in containers sitting on top of dry sod. Imperial Nurseries produces three to four million evergreens, does two to three million dollars in business, and employs approximately 130 employees. Although the only structure now situated within 660 feet of the interstate is a weather shed, in 1981 there was a loading dock located within 660 feet of the interstate from which the loading and shipping took place, there was a portable toilet, low bed trucks, semi-trailers, and tractors working near this loading dock, and men working in the area. Prior to the Department's issuance of the subject permit, one of the its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of the subject sign. Based on this inspection he recommended the issuance of the permit upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I- 10, and visible from the main-traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be. The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had also conducted a field inspection of the area. Both of them based their approvals on their observations in 1981 of commercial activities being conducted within 660 feet from I- 10. The site where the Respondent erected its sign was within 800 feet of the place where the loading dock was situated in 1981. The assertion of Henderson Signs on its sign permit application that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspector and his supervisor concurred in this characterization of the area. Neither has the Respondent violated any of the provisions of chapter 479, Florida Statutes. All of the facts were set forth on the permit application submitted by Henderson Signs, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permit was granted on the basis of this determination, not on the representation of Henderson Signs or the Respondent. In the summer of 1984, the subject site was inspected by the Department's Right-of-Way Administrator, who determined that the business being conducted by Imperial Nurseries in 1984 was agricultural, and not commercial in nature. Although Imperial Nurseries now has an agricultural exemption on its property, there is no evidence that it had this in 1981, and the facts support a finding that Imperial Nurseries is a commercial activity and was such in 1981. There is no statutory definition of "agricultural" 1/ and the Department has not defined the term by rule. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, defines "agricultural" as the cultivation of the ground, the art of preparing the soil, the tillage or the culture of the earth. These are not the activities of Imperial Nurseries now, and were not in 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking removal of the Respondent's sign on the north side of I-10, approximately 1.9 miles west of S.R. 267 in Gadsden County, Florida, be dismissed; and that permit number AE 316-10 remain in effect as a permit for a nonconforming sign. THIS RECOMMENDED ORDER entered this 1st day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of August, 1985.
Findings Of Fact There is no dispute regarding the facts here involved. SR 60 is a federal aid primary highway and the signs are located within the city limits of Tampa, Florida. No permit has been issued and the sign structure is located 150 feet from a permitted sign. Accordingly the signs violate the spacing requirements of the statutes. This is really the only issue here involved; however, both parties presented evidence and Respondent submitted a proposed recommended order on whether or not an application for a permit for these signs should be approved. Resolving this issue would be premature and result in an advisory opinion. However, to preserve the evidence and save having to repeat the hearing when, and if, Respondent submits an application for a permit the following is submitted. The signs in question were erected within the city limits of Tampa in 1974. At the time these signs were erected no state permit was required. In 1976 an application was submitted for a permit for these signs. This application was returned to the applicant to resubmit on new forms and be sure to complete the application (Exhibit 2). The permitted sign, from which the instant sign is not the required spacing, is located on the right of way of the cross town expressway, and when construction starts, this sign will be removed.
The Issue Did the Department of Transportation (Department) properly issue the Notice of Denied Application pursuant to Chapter 479, Florida Statutes, and Rule 14-10.004(1)(d), Florida Administrative Code?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The sign structure which is the subject matter of this proceeding was originally erected prior to November 11, 1971, at the intersection of I-75, an interstate highway, and SR 52, in Pasco County, Florida. Both I-75 and SR 52 are roadways under the Department's jurisdiction for purposes of enforcing and regulating outdoor advertising sign structures. The original sign structure had one sign facing which faced north. The interchange of I-75 and SR 53 is located outside of the incorporated area of any town or city. The Federal-State Agreement (Agreement) which provides the Department with the authority to regulate outdoor advertising was adopted in 1972. When the Agreement was adopted, it contained a rule which provided, inter alia, that any sign structure located outside of the incorporated area of any town or city could not be located adjacent to or within 500 feet of a restricted interchange or intersection at grade. That rule has now been codified in Rule 14-10.006(4)(e), Florida Administrative Code. At the time it was given authority to regulate outdoor advertising, the Department took an inventory of all existing sign structures. Those existing sign structures that did not conform to the rules set forth in the Agreement were "grandfathered in" as legally nonconforming signs and allowed to remain at their current locations. National's sign structure, which is the subject matter of this proceeding, contained only one sign facing which faced north. National's sign was "grandfathered in" as a legally nonconforming sign structure. National's sign was nonconforming because it was not located within an incorporated town or city and was located adjacent to or within 500 feet of a restricted interchange. Some time prior to l973, National's sign was issued state permit number 1417-10. In 1973, National's sign permit number was changed to AU061-35 which is the permit number currently assigned to National's sign structure. On July 9, 1998, National submitted an application for an outdoor advertising sign permit for a proposed sign facing, which was to face south, to be constructed on the existing nonconforming sign structure under permit number AU061-35. National's existing permitted sign structure has a sign facing which faces north and is located at the intersection of I-75 and SR 52 in Pasco County, Florida. The addition of a south sign facing to the existing legally nonconforming sign structure would create a back-to-back sign structure. The application as submitted by National was incomplete in that National failed to include in its application proof of local government approval. At the hearing, National produced proof of local government approval for the south side facing requested in the permit application. On July 22, 1998, the Department issued a Notice of Denied Application to National citing the following reasons for the denial: 14E Site is within 500 feet of a restricted interchange or intersection at grade (S. 14- 10.006(1)(b)5., FAC). * * * 14I Other -- No local government approval. The permit application did not include local government approval at the time it was submitted to the Department. However, the Department did not return the permit application as being incomplete. Subsequently, National obtained local government approval. National's existing legally nonconforming sign structure is located within the restricted area of the I-75 and SR 52 interchange in that it is located adjacent to the on-ramp carrying traffic from SR 52 to the southbound lanes of I-75 and is within 500 feet of the interchange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order denying Petitioner's application for a sign permit at the location requested in the permit application previously filed by National. DONE AND ENTERED this _25th_ day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this _25th_ day of June, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Jennifer Sloane, Esquire Livingston and Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was $1,055.00. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in Brevard County, Florida, be DISMISSED; and it is further RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED. THIS RECOMMENDED ORDER entered this 16th day of October, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T 86-0452T Rulings on Petitioner's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact. Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 A. J Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.
Findings Of Fact The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads: The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981. The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue. On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996. On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996. By letter dated August 30, 1994, the City advised Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996. As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995. Stipulation of Fact #2 reads: State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19. The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding. Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60). On May 22, 1974, State Road 60 was designated a Federal- Aid Primary. On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban. Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981. On or about October 1, 1981, Allan J. Stowell was issued state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality. State Road 60 became a part of the national highway system on November 25, 1995. Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state. Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor. Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business. Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating he was delinquent in certain costs and fees for the permits. When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current. The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable. When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981. After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994. After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions. After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997. Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government will issue a permit upon approval of the application by the Department. Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form. On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the property on which it is located in his application. One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years. Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997. The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign. Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute. When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.” There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application. The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve. Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner permits for the maintenance of the signs in issue, and denying compensation for their removal. DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998. COPIES FURNISHED: Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact By operation of Rule 60Q-2.019 F.A.C. and Rule 1.370 Fla.R.Civ.P. upon DOT's unanswered Requests for Admission, by DOT's unopposed Motion for Summary Recommended Order, and by stipulation of counsel that no material facts alleged within the motion are in dispute, the following facts are admitted and may be taken as true: The sign is located on I-75. I-75 is an interstate highway. No outdoor advertising permit has ever been issued by DOT for the sign. DOT has never owned the sign. The Sumter County Future Land Use Map designates the use of the land upon which the sign is located as agricultural. From 1977 to date, the zoning and land use designation for the land upon which the sign is located has been agricultural. Prior to 1977, all zoning and land use designations for the land upon which the sign is located have been agricultural. Lee was advised by DOT in 1992 that it was required to obtain an outdoor advertising sign permit for the sign. No written waiver of the requirement to obtain an outdoor advertising sign permit for the sign has been issued by the DOT. No DOT employee has ever advised Lee that Lee was not required to obtain an advertising sign permit for the sign. The prior owner of the sign never advised Lee that Lee was not required to obtain an advertising sign permit for the sign.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying a permit to Lee for the sign in question and ratifying its Notice of Violation 10B-MM-1995-0035F. DONE AND ENTERED this 18th day of June, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 18th day of June, 1996. COPIES FURNISHED: Will J. Richardson, Esquire Richardson Law Offices, P.A. Post Office Box 12669 Tallahassee, FL 32317-2669 Paul Sexton, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue Whether Petitioner, National Advertising Company, is entitled to the issuance of a vegetation control permit for its south-facing advertising billboard located West of Interstate I-75, in Lee County, Florida.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system, including interstate highways. Construction of Interstate 75 in the relevant area of Lee County, Florida, was completed and accepted by the DOT on or about February 22, 1979. On March 10, 1980, the Florida Department of Transportation issued an outdoor advertising sign permit to Florida Outdoor for a billboard to be located adjacent to I-75, .25 miles north of the intersection of I-75 and State Road 82 in Lee County. The billboard was constructed and the billboard structure, together with the sign permit, was acquired by Petitioner in May of 1982. Petitioner holds a current valid sign permit, DOT sign permit number AB-118-10, for the above sign. Said sign is a non-conforming sign under the Rules of the DOT and cannot be moved or raised. Petitioner submitted a properly completed application for a vegetation control permit to the DOT on February 4, 1991. Petitioner's sign board does not have five hundred feet of exposure along the interstate highway within a one thousand foot window and is therefore a screened board under the provisions of the DOT's rules. Following review of the application by the District Roadway Maintenance Engineer, it was determined that the area covered by the vegetation control permit was within an area specifically preserved during the construction process which prohibits any pruning, trimming, or removal of trees, shrubs, or vegetation in that area. Based on that determination, the permit was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the vegetation control permit requested by National Advertising Company on I-75 (S.R. 93) in Lee County, Florida, should be GRANTED, pursuant to the provisions of Chapter 14-13, Florida Administrative Code. DONE AND ENTERED this 30th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th December, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. National Advertising's Proposed Findings of Fact: Accepted in substance: paragraphs 1,2,3,4 (in part) 5,6 (in part), 8,10. Rejected as irrelevant or immaterial: paragraph 4 (in part-coverage in Preliminary Statement), 6 (in part), 7,9,11. Rejected as a conclusion of law: paragraph 12,13. Department of Transportation's Proposed Findings of Fact: Accepted in substance; Stipulation of Facts; paragraphs 1 (in part), 2 (in part). Rejected as conclusions of law: paragraphs 1 (in part), 2 (in part). Copies furnished: Gerald S. Livingston, Esquire Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
