Findings Of Fact By notice of alleged violation dated January 19, 1979, the Department charged that the Respondent, Chevron, U.S.A., installed a sign on 1-4, 23.86 miles east of U.S. 301, without a permit in violation of Rule 14-10.04, Florida Administrative Code. The notice also alleged that the sign was too close to an off ramp of 1-4, in violation of Title 23, Section 13, U.S. Code Para. 2(B). The parties stipulated that the sign is located along 1-4, a part of the Federal Interstate Highway Systems which was open to vehicular traffic in 1959-1960 and that the sign is located in the unincorporated area of Polk County. On or about October 22, 1969, the Respondent contracted with Pickett and Associates, of Tampa1 Florida, a general contractor, to construct a complete operating service station at 1-4 and SR 35-A. Included in the contract price was the cost of constructing the sign in question. An engineer for Chevron, J. L. Edgar, requested on June 4, 1969, that Pickett and Associates proceed to obtain all permits prior to construction. Due to no direct fault of the Respondent, the necessary permits to install the sign were never obtained from the Department. This fact was discovered when a sign inspector noticed the sign to be in poor condition and in need of repair. The contractor who erected the sign was contacted regarding the permits but all records relating to this particular job have been discarded. Chevron was unaware that the sign was never permitted until the notice was issued by the Department. The sign is located within five hundred (500) feet of the exit ramp off 1-4 to Kathleen Road (SR 35-A) , as measured from the spot where the road widens to the exit. No evidence was submitted to show that the sign was on the same property of the station or within one hundred (100) feet thereof.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That the Respondent's sign be found in violation of Rule 14- 10.06(1)(b)(2)(b) , Florida Administrative Code and Section 479.07, Florida Statutes. DONE and ORDERED this 18th day of August, 1980. in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. A. Scott Chevron, U.S.A., Inc. 3908 10th Avenue Tampa, Florida 33605 Charles Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department take no action, against Henderson Signs on these charges. DONE and ORDERED this 16th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, The Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1979. COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James P. Appleman, Esquire 206 Market Street Post Office Box 285 Marianna, Florida 32446
Findings Of Fact On March 2, 1984, the Petitioner, Pensacola Outdoor Advertising, applied for a permit to locate an outdoor advertising sign on the west side of U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida. This location is outside the city limits of Pensacola. I-10 and U.S. 29 intersect in the area where the Petitioner proposes to locate its sign. This site is 26.5 feet from the limited access fence or right of way boundary in the northwest quadrant of the interchange area where I-10 and U.S. 29 intersect. The south side of the structure for which the permit is sought is directly adjacent to this limited access fence, which is next to an off-ramp from I-10 to U.S. 29. The proposed sign site is visible to traffic on the main-traveled way of I-10 and to traffic on the interchange ramps.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Pensacola Outdoor Advertising for a permit to locate an outdoor advertising sign on U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida, be denied. THIS RECOMMENDED ORDER ENTERED this 24th day of July, 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 24th day of July, 1985.
Findings Of Fact Petitioner acquired a lease on property along S.R. 580 in Hillsborough County for the purpose of erecting a outdoor advertising sign thereon. Petitioner obtained approval from Respondent to place this sign at a location slightly more than 500 feet from an existing sign on the same side of the road facing in the same direction. Petitioner hired a small contractor to erect the sign without sending a representative to the site to ensure the sign was properly located. The contractor erected the sign on the wrong side of a driveway into the property leased so the sign, instead of being more than 500 feet from an existing sign, is some 472-474 feet from this sign on the same side of the highway and facing in the same direction. The cost of moving the sign to the correct location is estimated at $10,000. This petition in effect seeks a waiver of the 500-foot spacing requirement.
Findings Of Fact Respondent is the owner of a sign located alongside I-4 25.03 miles east of U.S. 301 (Exhibit 2). This sign is located outside the city limits of Lakeland, Florida, and is within ten feet of the beginning of the transition of pavement going to the off ramp from the I-4. When inspected in September, 1978, the sign did not have a permit affixed thereto and the records of Petitioner do not indicate this sign has ever been permitted. In 1978 the panels on this sign read "Hilton Inn." When inspected on 25 October 1982, the photograph (Exhibit 1) was taken. This photo shows the panels are missing and the Hilton Inn message does not appear.
Findings Of Fact The Respondent, E. A. Hancock Advertising, Inc., erected two double face outdoor advertising signs in June, 1975, in an unincorporated part of Broward County, Florida, without first obtaining a permit from the Petitioner, Florida Department of Transportation. Two of the signs face north and two signs face south. Each sign structure has two faces. After erection the Respondents applied for permits but permits were refused by Petitioner and violation notices dated October 22, 1975, were sent to Respondents indicating that Respondent was in violation of the outdoor advertising laws by erecting signs without permits and erecting "two separate signs erected illegally (which] can be seen from 1-95." After much correspondence between the parties, the matter was set-for hearing November 9, 1976, was thereafter continued and finally heard on July 12, 1977, more than two years after the erection of the signs. The signs were constructed on a county secondary road known as Ravenwood Road, Fort Lauderdale, Florida, and more definitely located as "south from 3497 Ravenwood Road. The road is one lane in each direction and is the type of road usually known as a service road. The billboard signs are elevated to a height of approximately 25 feet from the ground to the top of the sign and sit back about 15 feet from the secondary road. Although the signs can easily be read by travelers on Ravenwood Road, signs designed primarily to serve this two lane road would as a practical matter have been much smaller and much closer to the ground and the message would have had smaller letters. The signs are a "visual overkill" for travelers on Ravenwood Road. See "Petitioner's Composite Exhibit 1" and the Polaroid pictures taken from Ravenwood Road. The signs are elevated to less than 25 feet above 1-95. One sign is about 190 feet from the south lane of the interstate highway and the other about 191 feet from the south lane of the highway. Both signs are on the west side of the interstate highway. The two sign structures are approximately 300 feet apart. One sign is approximately 500 feet from an existing sign and the other is approximately 850 feet from an existing sign. The large size lettering on the large signs are clearly visible to the motoring public on interstate highway 1-95. Three of the four signs are visible and can easily be read by motorists going either north or south on the interstate highway. Evidence is unclear as to whether one side of one of the double space signs is clearly visible from the interstate highway. Copy on the signs is changed from time to time, but at the time the pictures entered into evidence were taken from the interstate highway, copy read, "WHITEHALL PRESTIGE LIQUORS A GREAT VODKA" and "HOLSUM Baked just right for you." The advertising is large and can be read in the Polaroid snapshots that were taken by Petitioner while on the interstate highway and entered in the record as "Petitioner's Composite Exhibit 1." Application for sign permits was made June 16, 1975 to the Broward County Planning, Building and Zoning Department. Permits were issued by the county and were affixed to the signs. The Hearing Officer further finds: The subject signs were constructed primarily to be read by the public traveling on the interstate highway. The size of the signs, the size of the lettering, the elevation of the signs and the angle of the signs provide insurance that messages can be easily read by those traveling on the interstate. The traffic on the interstate is much heavier than traffic on Ravenwood Road. The Petitioner contends that the Respondent is in violation of outdoor advertising laws: No permit was applied for or granted before the outdoor advertising signs were constructed by Respondent. The signs were constructed primarily to be read by the public traveling on 1-95, an interstate highway. The setback of tho Respondent's signs is less than 660 feet from the interstate highway. The signs should be removed as violating the state statutes as well as the federal code laws, rules and regulations contained in the "Highway Beautification Act." Broward County has not submitted to the administrator of the state evidence that it has established effective control with regard to size, spacing, height and lighting requirements contrary to the agreement of the Governor authorized by Section 479.02. Broward County does not enforce any outdoor advertising requirements even if it could be shown the zoning was in compliance with Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code as required by Section 479.02 and the agreement executed pursuant thereto. Respondent contends that: It secured permits from Broward County and attached them to the subject signs. Broward County had zoned the area M-3 and that it is a commercial zone. The signs were erected primarily to be read by the public traveling on Ravenwood Road. There are no spacing requirements of a thousand feet between advertising signs under the Florida law and that even if there were they had not been formerly charged with violating spacing requirements. Public Law 89-285, passed by the 89th Congress of the United States on October 22, 1965, allowed the states and the federal government to agree to set-back for signs nearer than 660 feet of the nearest edge of the right of way in areas zomed industrial or commercial. The agreement between the Governor and the federal government made provisions for local governments to regulate size, lighting and spacing requirements. That in fact the ratification of the Governor's Agreenent under Section 479.02 is not the enactment of a law. The Petitioner has in fact issued permits to others after signs have been constructed and should issue a permit for subject signs to Respondent. At the subject hearing the attorneys for both parties indicated that they desired to submit a Memorandum of Law but neither party submitted a memorandum.
Recommendation Require the Respondent to remove its signs within thirty (30) days from the date of the Final Order. Invoke the penalties of Section 479.18 for violation of Chapter 479. The Department of Transportation has ample enforcement power to remove the signs under Section 479.02 aside from the agreement: Brazil v. Division of Administration, 347 So.2d 755. See also Section 335.13 which states in part: "(1) No person shall erect any billboard or advertisement adjacent to the right-of-way of the state highway system, outside the corporate limits of any city or town, except as provided for in chapter 479." DONE and ORDERED this 5th day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Robert D. Korner, Esquire 4790 Tamiami Trail W. 8th Street Coral Gables, Florida 33134
Findings Of Fact On February 28, 1979, the manager of Chipley Hotel, Mrs. Linda Cain, made application for a permit to erect an outdoor advertising sign on the south side of I-10, 1.4 miles west of S.R. 77 in Washington County, Florida. Employees of the Department in Chipley assisted Mrs. Cain in the completion of the permit application and advised her that the property on which the sign was to be erected was zoned for commercial or industrial use. She had no independent knowledge of the zoning or lack of zoning on this property. Thereafter, Department personnel inspected the site, final approval of the permit application was given by the Department of Transportation, and a permit was issued to Chipley Motel authorizing the erection of an outdoor advertising sign at the requested location on I-10. In reliance on the issuance of this permit, Chipley Motel erected a sign at the permitted location. Each year Chipley Motel has paid to the Department the annual permit fees for the renewal of this permit. These permit fees have been paid for the years 1979 through 1985, and they have been accepted by the Department. Back in 1979, when employees of the Department at the Chipley District Office made their determination that the property where the sign was to be located was zoned commercial or industrial, they inquired of county officials and relied on the information supplied by them. The property where the subject sign has been erected is not zoned either commercial or industrial, and there has never been any actual zoning for this property. There exists no commercial or industrial activity within 800 feet of the subject sign's location which would qualify the site as an unzoned commercial or industrial area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's Notice of Violation issued on October 3, 1984, be Dismissed, and that the Respondent's sign on the south side of I-10, 1.4 miles west of SR 77, facing west, in Washington County, Florida be allowed to remain in place as a nonconforming sign. THIS RECOMMENDED ORDER entered this 26th day of April, 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 26th day of April, 1985.
The Issue The issue is whether Petitioner is maintaining signs illegally as alleged in a Notice of Violation issued to Petitioner.
Findings Of Fact Respondent, Department of Transportation (DOT), is the state agency that regulates outdoor advertising signs located within 660 feet of the State Highway System, interstate, or federal-aid primary system, as provided in Section 479.105, Florida Statutes (2008). On January 3, 2008, DOT issued Notice of Violation T117MB alleging that eight signs on the Shiver Property (Shiver) in Florida City, Florida, were erected illegally, and requiring the owner to remove or to pay DOT to remove the signs. There is no dispute that the permits to erect the signs have not been issued by DOT. The signs are mounted on top of the Shiver building located at 12 Northeast 3rd Street, Florida City, Dade County, Florida, and are from 16 to 27 feet apart from each other. The property is managed by Roy Dan Shiver (Mr. Shiver) who operates Shiver Glass and Mirror Company at the same location. Other tenants are the Frito Lay Company, a tax preparation service, and a real estate business. One of the signs on the Shiver building advertises for "Captain Shon's Seafood Grill & Pub Fish and Chips MM 103 - Key Largo." Another sign reads "The Big Chill Waterfront Dining 24 miles to Sports Bar Tiki Bar Pool MM 104 - Key Largo - Bayside." A third sign advertises "Sunset - Seafood Marker 88." Captain Shon's Seafood Grill & Pub Fish and Chips, Big Chill Waterfront Dinning, and Sunset - Seafood Marker 88 do not operate businesses on the Shiver property. The remaining five signs are various advertisements for The Shell Man including the following: "The Shell M Windchi T-shirt 32 miles on left * 70 on" (with apparent damage cutting off some of the words); "The Shell Man Unique Gifts * Full Service * Gas Station * Free Shell Necklace 32 miles on left;" "The Shell Man Take Home A pet! Hermit Crabs 32 miles on left * 70 miles on left;" "The Shell Man Come Blow A Conch Horn 32 miles on left;" and "The Shell Man Shark Necklaces Jaws & Gifts 32 miles on left * 70 miles on left." Mr. Shiver testified that The Shell Man has operated a business in the Shiver building for more than seven years, and currently operates in an office shared with Mr. Shiver after having moved from a separate office that is now occupied by a real estate company. His testimony regarding the length of time The Shell Man has operated a business at that location is not supported by the one lease he has with The Shell Man, dated January 1, 2008, with no other evidence of prior agreements. According to Mr. Shiver, The Shell Man operates a business by having brochures and samples of shells, that "they could sell" or "could give them away," in the Shiver office, but The Shell Man has no sign on the door and its owner comes and goes with no regular hours. Petitioner's claim that The Shell Man operates a business on the premises is not supported by the credible evidence. In response to questions concerning the zoning and any special designations for the area in which the Shiver building is located, Mr. Shiver was "sure it's zoned commercial," believed it was part of a community redevelopment area, and testified that it was "very possible" that it is in an empowerment zone. The signs on the Shiver building in Dade County all advertise for businesses located in Monroe County, and are oriented facing north to be seen by traffic heading south. Mr. Shiver testified that drivers on U.S. 1, a federal-aid primary highway, have to turn their heads and look back to see the signs on his building. A permitted billboard north of the Shiver property has two signs on it, one faces north and the other faces east. Petitioner takes the position that, (1) the eight signs are not on U.S. 1 but on the Florida Turnpike off-ramp leading onto U.S. 1; (2) that the evidence does not clearly show that the signs are within 660 feet of and visible from a federal-aid primary highway or interstate; (3) that the signs are not too close together or to the nearest permitted billboard that has signs facing in different directions; (4) that the local government, not DOT, has the authority to regulate the signs under an agreement with the federal government; and (5) sign regulations are inapplicable in the "distressed area." Mack Barnes, the DOT outdoor advertising inspector, who reported the possible sign violations to DOT testified that the signs are approximately 150 feet from the state right-of-way and are visible from U.S. 1. Mr. Barnes took a picture of the building with the signs to submit with his report. He could only submit one or two pictures with his report and to get the best vantage point, he took that picture from the Turnpike off ramp. Mark Johnson, the DOT regional advertisement inspector, also photographed the signs on the Shiver building. Like Mr. Barnes, he took some photographs from the Turnpike ramp, but he took one, Respondent's Exhibit 7, while he was standing on southbound U.S. 1. That picture shows the Shiver building and five of the signs on top of it. Based on Mr. Johnson's measurements, the signs are from 16-to-27 feet apart, and the distance to the nearest permitted billboard, with tag numbers BC367 and CG754, is 445 feet. The measurements were taken with a Nightstar Distance Measuring Instrument and are more exact than an earlier DOT estimate of 491 feet based on the milepost locations. On December 31, 2007, Mr. Johnson checked each door of the Shiver building to see if any of the businesses advertised on the signs were operating on the premises and they were not. He did not go inside any of the offices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the eight signs that are the subject of Notice of Violation T117MB are a public or private nuisance, and requiring that they be removed as provided in Subsection 479.105(1)(a), Florida Statutes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 1st day of April, 2009. COPIES FURNISHED: Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A. 411 Meridian Place Tallahassee, Florida 32303 Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelouso, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On September 23, 1979, the Department issued to the Respondent, Chipley Motel, permit number 9028-6 authorizing an outdoor advertising sign on the south side of I-10, .8 mile west of SR 77 in Washington County, Florida. This permit was issued pursuant to an application that had been filed by a representative of the Respondent which stated that the site where the sign would be erected was zoned commercial or industrial. The Respondent's representative filed this application containing the statement that the proposed site was zoned commercial or industrial without first checking with county officials to determine the zoning status of the site. Upon receipt of the Respondent's application, Department personnel at the Chipley District Office made inquiry of county officials and were informed that the site applied for by the Respondent was zoned commercial. Thereafter, the Department's district office personnel advised the Respondent that they had ascertained the subject site to be commercially zoned, and permit number 9028-6 was issued. Both the Respondent's representative and the Department's district office personnel believed the proposed sign site was zoned commercial. However, the site applied for by the Respondent, and where permit number 9028-6 authorized a sign to be erected, was not zoned commercial or industrial either when the application was submitted or when the permit was issued. Pursuant to the issuance of permit number 9028-6, the Respondent erected an outdoor advertising sign at the permitted location. This sign was taken down sometime between September of 1979 and July of 1985. Permit number 9028-6 which had been issued for this sign on I-10, .8 mile west of SR 77 was affixed to another sign located 250-300 feet from the permitted site. Sometime after July 31, 1985, a different sign was erected at the location on I-10, .8 mile west of SR 77, and permit number 9028-6 was affixed to this sign. Therefore, permit number 9028-6 had been used on two signs at two different locations before it was reapplied to the sign that now stands on the permitted site. The sign that is up now is not the sign for which permit number 9028-6 was issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that permit number 9028-6 held by Chipley Motel, for a sign on the south side of I-10, .8 mile west of SR 77 in Washington County, Florida, be revoked. THIS RECOMMENDED ORDER ENTERED this 13th day of March, 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 13th day of April, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 James J. Richardson, Esquire P. O. Box 12669 Tallahassee, Florida 32317-2669 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact The Respondent, Catalina Homes, Inc., owns an outdoor advertising sign with two faces which is situated on State Road 50, 2.9 miles west of State Road 435, in Orange County, Florida. This sign faces eastbound and westbound traffic on State Road 50, and the location is not within any city or town. State Road 50 is a federal-aid primary road, and it is open to traffic. The subject sign is visible from the main traveled way of State Road 50. Orange County is a zoned county, and the zoning at the location where the Respondent's sign is situated is agricultural. There are not three business locations within 800 feet of the Respondent's sign and the subject sign is within 660 feet of the right-of-way of State Road 50. The Respondent's sign is approximately 750 feet from a sign which has been permitted to Cashi Signs, Inc. The Cashi sign is located to the east of the Respondent's sign, on the same side of the road. There has been no state sign permit issued for either face of the Respondent's sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's two-faced sign situated on State Road 50, 2.9 miles west of State Road 435, facing eastbound and westbound traffic, in Orange County, Florida, be removed. THIS RECOMMENDED ORDER entered this 16th day of April, 1985 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 16th day of April, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire Hon. Paul A. Pappas Haydon Burns Bldg., M.S. 58 Secretary Tallahassee, Florida 32301 Department of Transporation Haydon Burns Bldg. Tallahassee, Florida 32301 Mr. Robert A. Bruno Vice-President Catalina Homes, Inc. 1344 West Colonial Drive Orlando, Florida 32804
