Findings Of Fact State Road 51 is a federal-aid primary highway where it crosses County Road C-349 in Suwannee County. The signs were erected in the spring of 1982 and no application for permit was submitted and no permit has been issued for these signs. The signs are visible from SR 51 and are intended to give to the passing public the directions to Respondent's place of business. Without such directions, the business is difficult to locate. The signs are erected within 660 feet of SR 51 in an unzoned area outside the corporate limits of any town or city. The signs are located 58 feet from the edge of SR 51 and 50 feet from C-349.
Findings Of Fact A notice was sent to the Respondent on the 11th day of May, 1977, alleging violation of Section 479.07(1), 479.11(1), Florida Statutes, for the reason that the sign owned by the Respondent had no permit attached thereto and was located within 15 feet of the right of way of the secondary road. Respondent's sign is painted on a guard rail which had been erected in front of the residence which stood at the east/west end of the intersection or "T" of State Road 707 and State Road 707A. The copy on the sign which was in two parts read: "Indian River Beverage Deli Take-out Catering" and a telephone number "333-5600--1 1/2 miles South" with an arrow indicating a southerly direction. The immediate area of the residence protected by the guard rail includes a parking lot and a trailer park. The sign advertises the business of the Respondent located 1 1/2 miles from the zone. The sign is approximately 6 feet from the edge of the pavement of the secondary road. No permit was applied for or secured before the sign was painted on the guard rail. Petitioner contends that the sign must be removed inasmuch as it sits less than 15 feet from the edge of the paved secondary road and that no permit was applied for or secured. Respondent contends that he assumed that the owner of the guard rail had gotten a permit to erect the guard rail and that the guard rail was erected to protect the house inasmuch as the house had been invaded by traveling automobiles seven times in seven years. He further contended that the sign was all dirty and rusty, and he made an agreement with the owner of the property to paint the sign and that it was sandblasted, cleaned up and painted in white and made traveling on the state road safer as well as advertising his establishment.
Recommendation Remove the sign unless it has been removed within five (5) days after final order is issued. DONE and ENTERED this 19th day of December, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Martin K. Hawthorne Indian River Beverage, Inc. 2222 Indian River Drive Jensen Beach, Florida 33457
Findings Of Fact The Respondent, T & L Management, Inc., was issued permits numbered AG800-10 and AG798-10 on or about April 9, 1982. These permits were for the erection of signs on the south side of I-10, approximately one mile east of SR 291 (Davis Highway), in Escambia County, Florida. They were issued because of the existence of a business known as Gail's Beauty Shop within 660 feet of the interstate and within 800 feet of tide proposed sign location. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector and by her supervisor, who approved the applications because of the existence of a beauty shop nearby the proposed sign location. The Department's inspector had visited this site previously when the Respondent had applied for a permit at this location, and had disapproved the application because no commercial activity could be seen from the interstate. Subsequently, foliage was cut, and the site was reinspected pursuant to the Respondent's subject applications. With the shrubbery trimmed and the vegetation cleared out, the rear side of the building housing Gail's Beauty Shop was visible from I- The inspector and her supervisor concurred in the approval of the permits. Gail Wilcox and her family have lived on the property nearby the site of the Respondent's signs for 19 years. This property is within 660 feet of I-10, facing away from the interstate. It is within 800 feet of the Respondent's signs. In April of 1982 when the subject applications were submitted, Gail Wilcox operated a beauty shop in the building where she and her husband and daughter made their residence. This house had been constructed with an attached double garage on one side of it. It had been remodeled so that the side with this double garage was converted to a one-car garage with the remainder of the garage made into a business area. This business area on the far end of the house is where Gail's Beauty Shop was located. It had its own separate entrance in the front, with no entrance into the remaining garage or into the house itself. The entire building was under one roof, as it had been before the double garage was converted. This building is otherwise used as the Wilcox residence. There is no question that Gail Wilcox operated a beauty shop at this location. She had an occupational license, a business telephone, and there was a sign on the window in front "Gail's Beauty Shop." Nevertheless the photographs in evidence show this area to be residential in nature. It was visible to traffic on the interstate when the applications were submitted and when they were approved. Sometime prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because the business activity used to qualify the site as unzoned commercial was being conducted in a building used principally as a residence. As a result, the Department issued its notice of violation advising the Respondent that the subject sign permits were being revoked.
Findings Of Fact The Respondent, T & L Management, Inc., was issued permits numbered AK081-12 and AK082-12 on or about August 30, 1983. These permits were for the erection of signs on the north side of I-10, approximately .4 mile west of SR 297, in Escambia County, Florida. They were issued because of the proximity of a welding business adjacent to the proposed sign location. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of what she believed to be a welding shop nearby the proposed sign location. This inspector was looking for a welding shop because she had been informed that a welding shop was located there. What she saw was some welding being done on the property where the welding business was supposed to be. This could be seen from the interstate. Apparently because the inspector expected to find a welding business near the proposed sign site, she concluded that such a business existed there, and the applications were approved. However, the occupant of the subject property has lived there for 37 years, and he has never operated a welding business. He has only done welding on this site once since 1980, when he welded a bumper onto a truck in his barn. The photographs which were received in evidence show his property, and the general appearance of this area is residential or rural in nature, and not commercial. It is visible to traffic on I-10. The Department's inspector testified that she used a pair of binoculars to enable her to see a small sign reading "welding" on the property where she saw welding being done. However, the property owner denied that any such sign was on his property. Other witnesses presented by the Respondent also testified that they saw welding being done, but this issue has been resolved by accepting the testimony of the witness who lived on the property and who did the welding on the one occasion, as being the more credible and trustworthy evidence. The adjacent property is leased by Pensacola Outdoor Advertising. This property has a building on it which bears a small sign reading "Pensacola Outdoor Adv." and the telephone number. This building was leased by Pensacola Outdoor Advertising in 1984, and was not used for any business purpose when the permit applications were submitted. This property is also visible from I-10. When the Respondent applied for the subject permits there was no business activity being conducted within 800 feet of the proposed sign location. Therefore, the Department's inspector made a mistake in approving the Respondent's applications for this site. In October of 1984 the Department issued its violation notices advising the Respondent that the subject sign permits were being revoked.
The Issue The issue is whether Respondent's signs, located in Lafayette County, are illegal and should be removed. BACKGROUND AND PROCEDURE MATTERS At formal hearing, Petitioner, Department of Transportation (DOT), moved, ore tenus, for the consolidation of these two cases. The motion was granted and these two cases are consolidated. The DOT presented the testimony of Glenel Bowden and Tom Brown, together with 7 exhibits admitted in evidence. Respondent, Jim Hollis (Hollis) presented his own testimony and that of Rosa Falconer. The parties waived filing of a transcript and proposed findings of fact and conclusions of law.
Findings Of Fact Hollis is the owner of two signs in Lafayette County. One is located on U.S. 27, 3.3 miles north of State Road 349. The other is located on U.S. 27, 4.7 miles south of State Road 51. Both signs advertise Jim Hollis' River Rendezvous. Hollis has no permit for either sign. U.S. 27 is a federal-aid primary highway. Both signs are approximately 55 feet from U.S. 27 and are visible from U.S. 27. Signs may be permitted along a federal-aid primary highway only in commercial or industrial zoned areas or in commercial or industrial unzoned areas if there are three or more separate and distinct industrial or commercial uses within a 1600-foot radius of each other. Lafayette County has not enacted zoning, therefore the area where the signs are is unzoned. There are not three commercial or industrial uses within a 1600-foot radius of either sign, therefore the location of the signs is not an unzoned commercial or industrial area. Glenel Bowden, Outdoor Advertising Inspector for DOT, first discovered the signs in March, 1987. He verbally requested that the signs be removed. When the signs were not removed, DOT filed and served Notice to Show Cause on each sign, Notice Nos. 87-5-B and 87-5-A, respectively (resulting in Case No.'s 87-1737T and 87-1738T, respectively). Hollis does not believe he should be denied the right to leave his signs in place, but presented no evidence to respond to DOT's prima facie showing that the signs are not permitted.
Recommendation Based upon the foregoing Finding of Fact and Conclusion of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding the two signs at issue to be illegal and ordering their removal. DONE and ENTERED this 15th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 15th day of February, 1988. COPIES FURNISHED: Timothy C. Laubach, Esquire 511 North Ferncreek Avenue Orlando, Florida 32803 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Mr. Jim Hollis 5107 East Colonial Drive Orlando, Florida 32807 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Attention: Eleanor F. Turner
Findings Of Fact Respondent maintains an outdoor advertising structure on the I-95 southbound lane facing north, 13.94 miles north of the Brevard-Volusia County line. Sometime between August 6, 1975 and January 12, 1976, the face of this advertising structure was raised six to eight feet in height. This was done by extensions being placed on the original poles upon which the structure sits. The structure retained its same face size and lighting. The face of this structure was raised at the request of Respondent's client in order to retain that client's business. No evidence was presented to show when this sign was originally erected. No evidence was presented by Petitioner, Department of Transportation, which would establish that the subject sign is or is not located at a "commercial or industrial zone" or an "unzoned commercial or industrial area" as those terms are defined in Section 479.01, Florida Statutes. The subject sign is located approximately 15 feet outside the right-of-way of I-95.
Findings Of Fact Respondent has three signs on SR 60 located (1) 20.2 miles west of Osceola County line, (2) 5.27 miles east of US 27 and (3) 6.18 miles east of US 27, respectively. SR 60 is a federal-aid primary highway and the signs were inspected by Petitioner's agent on April 6, 1978. The inspection revealed that permits had been issued for none of these signs. Additionally, the sign first noted above is in an area not zoned commercial or industrial. With respect to the second sign above noted the exact location of the sign by legal description is needed to ascertain if the sign is located in an area zoned commercial. The third sign above noted, in addition to never having been permitted, is located in the right-of-way of SR 8() and is not in an area zoned commercial.
The Issue Whether the Respondent erected and maintained outdoor advertising signs without a proper permit and in violation of the set-back laws of Chapter 479, Florida Statutes.
Findings Of Fact Respondent erected an outdoor advertising sign approximately one (1) mile east of State Road 79 on the north side of Interstate 10 right-of-way. The copy on the face of the sign read: "Rich's Truck Stop, Restaurant, Travel Park, CB Radio Shop, Texaco, This Exit." The distance from the sign to the nearest edge of the pavement of I-10 was approximately two hundred thirty-one (231) feet. The Respondent, Mr. Rich, speaking for the partnership Rich Oil Company admitted that the sign was located as stated in the violation notice. The sign was located in a rural area not zoned by a city or by a county. Respondent erected a second sign located approximately .5 of a mile west of Florida Secondary 181 on the north side of I-10 right-of-way. The sign is painted on the side of a trailer. The size of the sign is nine (9) feet high and forty (40) feet long. The copy states: "Rich's Truck Stop, Exit Highway 79, Marker 111, Open 24 Hours, Restaurant, Camping, Texaco." The trailer with the sign on it is located approximately one hundred three (103) feet from the nearest edge of the pavement of I-10. The trailer with the sign painted on it is standing in a pasture in a rural unzoned area. The Respondent Mr. Rich agreed as to the approximate location of the subject sign. No application for permit was made by the Respondent for either of the two subject signs. Respondent received a Violation Notice from Petitioner stating the signs were in violation of the set-back regulations and were in violation of the statute requiring a state permit. Contrary to the contentions of Respondent, the Hearing Officer finds that both of the signs which are the subject of this hearing and herein described are in fact "signs." The second described sign painted on the side of a trailer is a "sign" within the standard definition "a lettered board or other display used to identify or advertise a place of business," Webster's New Collegiate Dictionary, Copyright 1974 by G. and C. Merriam Company.
Recommendation Remove both of the subject signs within ten (10) days of the issuance of the Final Order unless said signs have been previously removed by the Respondent. DONE and ORDERED this 1st day of February, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Tallahassee, Florida 32304 Russell A. Cole, Jr., Esquire 123 North Oklahoma Street Bonifay, Florida 32425 Mr. Glen E. Rich Rich Oil Company U.S. 90 West Bonifay, Florida 32425 Mr. J. E. Jordan District Sign Coordinator Post Office Box 607 Chipley, Florida 32428
Findings Of Fact On February 9, 1982, George King, Sign Inspector for the Department of Transportation, observed and checked a sign located approximately three-tenths of a mile east of the Hendry County line on state Road U.S. 27, in Palm Beach County, Florida. State Road U.S. 27 is a federal-aid primary highway which is open and utilized by the traveling public. The sign in question, which is visible from U.S. 27, advertises "Cape Realty" and is located approximately two feet off of the right-of-way line, outside the city limits in an area zoned agricultural. At the time the sign was inspected on February 9, 1982, there was no state permit attached to the sign. An examination of the photograph of the subject sign taken by the inspector on December 14, 1982, at the same location, shows no state permit affixed to the structure. Additionally, by timely failing to answer admissions requested by Petitioner, the Respondent is deemed to have admitted ownership and that the subject sign was erected without a state permit in an unpermittable zoning area, outside any incorporated city of town, adjacent to and visible from the main traveled way of U.S. 27.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Department of Transportation finding that the sign in question is in violation of applicable rules and statutes and should be removed. DONE and ORDERED this 8th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration 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 8 day of March, 1983. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Mrs. Flora Elena Caso c/o Cape Investment Realty, Inc. 417 West Sugarland Highway Clewiston, Florida 33440 John Beck, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the sign on the side of the Respondent's trailer, which has been placed on the east side of I-4, .01 mile south of Buffalo Avenue in Hillsborough County, is a nuisance which should be removed, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact In early February 1990, the Department's Outdoor Advertising Administrator with District 7 observed the following: a 13' x 40' metal trailer with a large advertisement for Contractor's Exams on its side in a stationary location. The trailer was approximately twenty feet from the I-4 right-of-way fence, on the east side of the highway, one-tenth of a mile south of Buffalo Avenue in an unincorporated area of Hillsborough County. The advertising message was clearly visible from the main travel way of the interstate highway. During a sixty-day period, the administrator regularly observed this trailer to see if it had been relocated in anyway. When he determined from the observations that the trailer had not been moved, he visited the property where the trailer was located on April 2, 1990. The business enterprise at this location is South Florida Engineering Company. As part of its business, this company has trailers, tractors and other equipment parked on site. When the administrator and an outdoor advertising inspector entered the property, they went to the office and inquired about the one trailer. The administrator was directed to another manager who has his office in the dock area. No one met with him at this location, and he was unable to get any more assistance from the man with whom he had spoken earlier. Having observed the trailer on the premises, and having observed its distance away from other equipment, along with its position in relation to the highway and the type of message printed on its side, the administrator issued a Notice of Violation. The administrator determined that the printed message on the trailer's side advertising Contractor's Exams was a unpermitted sign, in violation of Section 479.07(1) Florida Statutes. Another copy of the notice was mailed to Carl Mathews Construction School. The reason the notice was mailed to this enterprise was because the school's services were being advertised by the sign. The mailing address was ascertained by calling the phone number on the advertisement and requesting the address. The inspector accompanying the administrator physically attached the Notice of Violation on the trailer and took a picture of it on this same date. Subsequent to April 2, 1990, the inspector took pictures of a different trailer on the same site with the same advertising message. In these later pictures, the trailer was farther away from the right-of-way fence, but the message could still be seen from the interstate highway. The trailer remained isolated from other trailers on site. These additional pictures were taken on June 15 and 26, and July 18, 1990. In addition to the trailer in I-4 and Buffalo Avenue, the inspector became aware of another trailer with the same message at State Road 60 and Adamo Drive. This trailer's message could also be seen from the road. It remained at this location in the same stationary position from the middle of June through mid July. This trailer was parked in a trailer yard. Mr. Carl Mathews is the owner of Carl Mathews Construction School, the business advertised on the side of these two trailers. In addition to this enterprise, Mr. Mathews is actively involved in the business of leasing trailers, like the two previously mentioned. Ordinarily, these are leased to Contractors for the storage of on-site supplies or to truckers for over the road hauling. Through his various interests in a number of corporations, Mr. Mathews has an interest in one hundred and thirty trailers as well as the trailer yard at State Road 60 and Adamo Drive. Only two of these trailers display an advertisement for Carl Mathews Construction School. The trailer originally at the I-4 and Buffalo Avenue site from February through April 2, 1990, was there for two reasons. First of all, the strip of property where both trailers were ultimately located had been leased by one of the corporations in which Mr. Mathews is a principle. The purpose of the lease was to store empty trailers during the time periods they were not being leased. Storage of this type of trailer is difficult in Hillsborough County because ordinances only allow them on property zoned for industrial use. Secondly, the trailer in question needed its brakes redone. During this time period, this repair was going to be performed by South Eastern Mechanical, who runs a repair business at this site. Later, this trailer was moved to the State Road 60 - Adamo Drive storage yard in which Mr. Mathews has an ownership interest. This yard had recently acquired its own mechanic who will repair the brakes. The second trailer was also placed at the I-4 - Buffalo Avenue location for storage purposes. The Carl Mathews Construction School is located at 7207 North Nebraska Avenue in Tampa. There are no school functions at the I-4 - Buffalo Avenue location. The purpose of the written message on each trailer was to inform members of the public interested in Contractor's Exams that Carl Mathews Construction School was offering new courses. A sign permit has not been issued by the Department for either trailer during their stays at the I-4 - Buffalo Avenue location.
Recommendation Based on the foregoing, it is recommended: That the Notice of Violation issued against the first trailer at the I- 4 - Buffalo Avenue location be found be have been properly issued by the Department. That Contractor be found to have fully complied with the Notice of Violation issued April 2, 1990. RECOMMENDED this 25th day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 25th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2427T The Department's proposed findings of fact are addressed as follows: Accepted. See HO number 1, number 2 and number 5. Accepted. See HO number 10, number 11, number 14 and number 16. Accept first sentence. See HO number 10. The rest is rejected as irrelevant to the dispute of material fact. Contractor's proposed findings of fact are addressed as follows: Accepted. Although the Department did comply with all necessary legal requirements when the violation was posted on the first trailer. Accept all but last two sentences. See HO number 8. The last two sentences are contrary to fact. See HO number 15. There was no showing that the second trailer had been moved from the I-4 - Buffalo Avenue location. There was insufficient reliable evidence presented at hearing for the Hearing Officer to accept this presumption. More reasonable, contrary evidence was accepted by the Hearing Officer which revealed that the second trailer remained at this location. See HO number 9. Rejected. Contrary to fact that the first trailer was able to operate on the road. See HO number 14. Otherwise, accept that trailers were the type of trailers pulled by truck tractors. Accepted. But factual dispute was reconciled. See HO number 1 and number 8. Rejected. Contrary to fact. See HO number 18. Accept all except last sentence. See HO number 10, number 12, number 13, number 14 and number 15. Last sentence is improper conclusion and contrary to reasonable inference. See HO number 9. Rejected. Improper comparison without proper foundation. Rejected. Improper legal argument. Accept the first sentence. See HO number 10. Reject the last sentence as self serving. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
