The Issue Whether Respondent discriminated against Petitioner because of his race.
Findings Of Fact Respondent, Waffle House, Inc., owns and operates a Waffle House unit located at 2380 E. Brickyard Road, Midway, Gadsden County, Florida (Midway Waffle House). The Midway Waffle House offers food an beverages for sale to the public and is a "public food service establishment" within the meaning of Florida Statutes. Petitioner, his wife, Toyka Timmons and her cousin, Kanton Enzor, are African-American. Petitioner and his wife live close to St. Petersburg, Florida. Mr. Enzor lives in Gadsden County, Florida. Mr. Timmons is a school teacher in St. Petersburg, Florida. He teaches Health and Physical Education. He and his wife came to Tallahassee around February 5, 2005. On that day Mr. Timmons, his wife and Mr. Enzor visited Mr. Timmons mother- in-law's home. The group was at the mother-in-law's home most of the day. Around 4:00 p.m., or 5:00 p.m., Mr. Timmons consumed two beers. Because he was not close to a trash can and did not want to throw the beer caps on the ground, Mr. Timmons put both beer caps into the pocket of the jacket he had on. Other than these two beers, neither Mr. or Mrs. Timmons consumed any other alcohol. Later in the evening at about 7:00 p.m., the Timmons and Mr. Enzor went to Mrs. Timmons' brother's home on Ocala Street, in Tallahassee, Florida. Over the next several hours the group watched a few movies and reminisced about family memories. Mrs. Timmons had been upset all day and had been crying over the recent death of her grandmother and the serious illness of her grandfather. While at her brother's house she continued to be emotionally distraught and was crying, making her eyes red and swollen. On February 6, 2005, at about 1:00 a.m., Petitioner, his wife and Mr. Enzor decided to get something to eat and take Mr. Enzor home. Everyone decided to go to the Midway Waffle House since it was on the way to Mr. Enzor's home in Gadsden County. Mrs. Timmons was dressed in a head scarf, sweat suit like jacket, a t-shirt and some jeans. Mr. Timmons was dressed in a sweat suit jacket, t-shirt and jeans. Neither was dressed for going out to a club. The group got into the Timmons' car. Mr. Enzor drove so that Mr. Timmons could sit in the back seat of the car with his wife in order to console her. She was again crying. When the group arrived at the Waffle House a large crowd was both inside and outside of the restaurant. The people gathered outside of the Waffle House were playing music and not eating. The crowd both inside and outside the restaurant was predominantly black and appeared to have come from the Ten- Ninety Club, a nightclub located close to the Midway Waffle House. Petitioner testified that there were a lot of drunk people coming from the nightclub. The Ten-Ninety club is patronized predominantly by African-Americans. Apparently, it is not unusual for the Waffle House restaurant and parking lot to be extremely crowded after the club closes. On February 6, 2005, the crowd in the parking lot was estimated to be in the hundreds and the restaurant was full. As the Timmons' group drove up to the Waffle House, Mr. Enzor thought that it was going to be a while before they would be able to get something to eat. Mrs. Timmons saw a Caucasian couple walk into the restaurant. Additionally, as Petitioner's car pulled into the Midway Waffle House parking lot, Gadsden County Sheriff's Officer, Deputy Stach McIntyre, pulled into the parking lot to respond to a public disturbance call from the Midway Waffle House staff. The Timmons' group and the Deputy walked up to the restaurant at the same time. The Deputy opened the door for Petitioner, Mrs. Timmons, and Mr. Enzor. Shortly, after the Deputy arrived at the restaurant, the majority of those not eating left. The remaining patrons consisted of two-to-three Caucasians, including the couple who had entered earlier, with the remainder African-American. The Midway Waffle House consists of several booths and a dining counter. All the booths were full with groups. The Timmons group sat at the counter along with the Caucasian couple who had entered before them. The Caucasian couple who had walked in before the Timmons' group had been given glasses of water. The evidence did not show whether the couple desired to order any food or, if they did, whether their order was taken. Once inside the Waffle House, Mr. Timmons, his wife and Mr. Enzor quietly waited to be served. At the time, there were three Waffle House employees working in the restaurant. One waitress was African-American. The grill cook was Caucasian, and another waitress, Elizabeth Watson, was "a woman of color," or mixed descent who "could have been" African-American. Ms. Watson was the waitress for the Timmons' group. Ms. Watson no longer works for Waffle House and has moved to New York. She did not testify at the hearing. As the Timmons' group waited to be served, Ms. Watson walked back and forth in front of them several times and never addressed Mr. Timmons, his wife or Mr. Enzor. Other African- American patrons of the restaurant were being served and Mr. Timmons recalled watching Ms. Watson walk over to a table of six African-American customers. He also recalled that some of the African-American customers had drinks. Mr. Timmons raised his finger and said, "Excuse me" several times. The waitress ignored them and kept walking back and forth. After about 20 or 25 minutes passed Mr. Timmons asked the waitress if they would be served. Finally the waitress stopped and told them there were some 30 to 35 orders in front of them and that they would not be served anytime soon and needed to go somewhere else to eat. Mrs. Timmons asked if they could get a drink, the waitress said, "No, you might as well go somewhere else. You're not going to be served here today.” Mrs. Timmons recalls a party of four or five African-American customers in a booth near the counter and describes, "I just remember their food coming out to them, and I remember thinking, now, why do they have their food and I'm not going to be served?" After the waitress tried to explain that the cook "couldn't prepare any more meals at the current time." Mrs. Timmons became angry with Ms. Watson, raised her voice and stated, "You mother heifer, you mean to say you're not going to serve us here? That's not fair. We haven't done anything. We've been sitting here for about 40 minutes and you're not going to serve us." Mr. Enzor admits that it was "possible" Mrs. Timmons used profanity with Ms. Watson. At this point, Mr. Timmons was relatively quiet and Mrs. Timmons asked loudly why they weren’t going to be served. Both asked to speak with the manager. The waitress pointed to a 1-800 complaint number posted on the wall. Mr. Timmons demanded to speak with a manager, not understanding that the manager was not on the premises. The discussion grew heated and words were exchanged. The disturbance could be heard over the background noise of the restaurant, which was relatively loud. At this point, the grill cook noticed Mr. and Mrs. Timmons. He "heard quite a few expletives used," and recalls "the gentleman was using language, and then the lady then actually jumped into--got into the situation." The cook also heard the server tell Mr. and Mrs. Timmons that she refused to serve them because of their "language and their attitude." At about the same time, Deputy McIntyre noticed the disturbance. He came over and sat down in an empty chair next to Mr. Timmons and asked "what the problem was." Mr. Timmons said the waitress refused to take their order. The deputy asked Ms. Watson "why she wasn't taking the order." Ms. Watson told him that she had been called a "mother F'er." Waffle House policy provides that anyone who is disruptive or uses profanity can be refused service in the restaurant at any time, that a server has the right to ask such a customer to leave, and that if the customer does not leave, the server can contact the police and have the customer removed. Customers at the Midway Waffle House have been denied service for being drunk and disorderly, for using foul language, and for fighting. Deputy McIntyre asked the waitress what she wanted to do. She said she wanted them to leave. At the hearing, Petitioner admitted that the waitress "probably wanted us to leave because my wife probably said some words to her, but I was never rude to her. I was very polite to her asking for service, and never received it." Both the Timmons and the waitress were agitated. Mr. Timmons asked Deputy McIntyre why he had to leave when all they wanted was to get served. Mr. Timmons said, "She can't tell us to leave. We didn't do nothing wrong. We want something to eat." The Deputy said, "She wants you to leave," and indicated that they had to leave the Waffle House because they were trespassing. Mr. Timmons demanded to see the manager. He was again directed to the 1-800 number listed on the wall of the Waffle House. Deputy McIntyre tried to explain that there was no manager at the Waffle House and that "if you don't leave, I'm going to have to make you leave." Mr. Timmons said "Go ahead, arrest me something along those lines." Mr. Timmons responded, "If you touch me, I'll sue you and I'll have your badge." Deputy McIntyre arrested Mr. Timmons for trespassing and public intoxication and placed him in handcuffs. Mr. Timmons' asked, "Why are you arresting me? You can't arrest me for nothing. I haven't done nothing." He then told the officer, "I could have your badge for this. What is your name?" Mr. Timmons was escorted out of the Waffle House. Mrs. Timmons and Mr. Enzor followed the officer outside. Deputy McIntyre searched Mr. Timmons and found the two beer bottle caps in his jacket pocket. Mrs. Timmons, who was agitated, asked the officer why her husband was being arrested. Deputy McIntyre grew exasperated and threatened to place Mrs. Timmons under arrest if she did not remain quiet and leave. Because Mrs. Timmons did not cease asking the officer what her husband was charged with and did not leave, she too was arrested and charged with trespassing. Mr. Enzor who remained quiet outside the Waffle House was not arrested. Mr. and Mrs. Timmons were later acquitted after a trial on the criminal charges. Mr. Timmons testified that as a result of this incident he suffered a great deal and incurred both actual and future damages. Unquestionably, Mr. Timmons was mortified, embarrassed and angered over the incident at the Midway Waffle House and his subsequent arrest. However, Mr. Timmons never sought to discuss the Waffle House visit and/or his arrest with a mental health professional or counselor. He returned to work the next school day after the arrest. He testified that the incident caused his relationship with his wife and her family to take an emotional beating because they believed that he was the reason she had gotten arrested. However, there was no objective evidence to support Mr. Timmons' assertion. Mr. Timmons also testified that his future earning capacity would be impacted because of the arrest and the manner in which he was treated by Waffle House. However, at this point, such impacts are highly speculative, at best. Finally, Mr. Timmons testified that his out-of-pocket expenses related to the defense of his criminal charges totaled $12,000.00. After the incident Petitioner filed a complaint with the Waffle House. The complaint stated: "I was very dissatisfied because the waitress was rude because she was upset with other customers.” The Timmons believe that "the reason they were not being served was because there was a rowdy crowd that was inside the Waffle House and on the outside, and that they were being grouped with those people." They felt this was racial discrimination. However, no Waffle House employee told Deputy McIntyre to arrest Mr. or Mrs. Timmons. It was Deputy McIntyre's decision to arrest both Timmons. Likewise, no employee of Waffle House made any statement that indicated the Timmons' group had come from the Ten-Ninety Club. Additionally, there was no mention of race by any employee of Waffle House or by Deputy McIntyre. Finally, the evidence in this case does not show that the Timmons' treatment at the Waffle House or subsequent arrest were motivated by their race. The evidence was clear that the events of that night were caused initially by Mrs. Timmons’ behavior and added to by Mr. Timmons’ behavior and an overworked waitress. The whole incident was unfortunate with events escalating out-of-control. The events were not due to racial discrimination, and the Petition For Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of February 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 22nd day of February 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Barbara Hobbs, Esquire Cummings, Hobbs & Wallace, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Tracey T. Barbaree, Esquire Sandra Kim, Esquire Ashe, Rafuse & Hill, LLP 1355 Peachtree Street, Northeast Atlanta, Georgia 30309
The Issue The issue for determination in this proceeding is whether Respondent committed the unlawful employment practices alleged in the Petition For Relief.
Findings Of Fact Petitioners, Merculier Olizia, Castel Olizia, and Francois Norelia ("Petitioners"), are black individuals of Haitian national origin. Mr. M. Olizia and Mr. Norelia were employed by Marine Muffler Corporation ("Marine Muffler") until March 10, 1992, when they were involuntarily discharged. Mr. C. Olizia was not involuntarily discharged but was removed from Marine Muffler's payroll sometime in 1992 after March 10, 1992. Marine Muffler is an employer for the purposes of this proceeding. Marine Muffler is engaged in the business of building fiberglass mufflers in Apopka, Florida for use in inboard boats. Marine Muffler's customers are primarily manufacturers of inboard boats. All of the outstanding stock of Marine Muffler is owned by Mr. Emery Sims, Mr. David Parks, and Mr. Sims' father. Mr. Sims is the President of Marine Muffler but is not a party to this proceeding. Respondent, David T. Parks, is the Vice President of Marine Muffler. Respondent, Lee Witte, is the plant manager for Marine Muffler. Mr. Witte has authority to hire and fire plant personnel, including Petitioners. Petitioners worked in Marine Muffler's assembly plant on the same eight member work crew. Mr. M. Olizia was the lead crew member. Mr. Norelia was the assistant/substitute lead crew member. Only Mr. M. Olizia and Mr. Norelia can read plans and drawings. A work crew must be able to read plans and drawings in order to assemble mufflers. The normal work week is Monday through Thursday for 10 hours a day. Work done on Friday qualifies as overtime and is compensated at a rate equal to 1.5 times the normal hourly rate of compensation. Marine Muffler agrees to a shipping date for each work order it receives. Late shipment of mufflers to customers may delay the customer's production and jeopardizes customer relations for Marine Muffler. During the payroll week ending March 7, 1992, Marine Muffler was behind in deliveries to important customers. For this reason, employees, including Petitioners, had been working overtime. Petitioners knew of the reason for the overtime work. On Monday, March 9, 1992, Mr. Norelia came to the office of Mr. Witte early in the workday and said that he would not be able to work on Tuesday, March 10, 1992, for personal reasons. Mr. Norelia represented that he would be back at work on Wednesday, March 11, 1992. Mr. Witte assented to Mr. Norelia's request for leave on Tuesday, March 10, 1992. Shortly thereafter, Mr. Baptiste came to Mr. Witte's office and asked for the day off on Tuesday, March 10, 1992. Mr. Baptiste said that he had personal matters to attend to and would return to work on Wednesday, March 11, 1992. Mr. Witte assented. Later the same day, Mr. M. Olizia approached Mr. Witte in the assembly plant and stated that he could not come to work on Tuesday, March 10, 1992, and that his brother, Mr. C. Olizia, could not come in because he would not have a ride to work. Mr. Witte asked Mr. M. Olizia why he needed to be absent from work, and Mr. Olizia stated that his reasons were personal. Mr. Witte told Mr. M. Olizia that neither he, Mr. Baptiste, nor Mr. Norelia could have Tuesday, March 10, 1992, off from work. Mr. Witte further advised Mr. Olizia that anyone of them who took Tuesday off would not have a job on Wednesday, March 11, 1992. Mr. Witte made the same statement to Mr. Baptiste and Mr. Norelia individually. None of the Petitioners appeared for work on Tuesday, March 10, 1992. Mr. Witte discharged Mr. M. Olizia, Mr. Baptiste, and Mr. Norelia for their unexcused absence from work on March 10, 1992, in violation of direct instructions from their supervisor. The discharge was self executing upon the failure of each employee to appear at work. On March 11, 1992, Mr. M. Olizia, Mr. Baptiste, and Mr. Norelia came to the premises of Marine Muffler and sought a meeting with Mr. Sims. They asked Mr. Sims to set aside Mr. Witte's decision to discharge them from their employment. Mr. Sims declined their request. Petitioner's failure to appear for work on Tuesday, March 10, 1992, without leave and contrary to direct instructions from their supervisor violated Marine Muffler's written policy against unexcused absences. That policy provides that such absences may be the basis for termination of employment. Petitioner's were specifically advised that if they did not appear for work on Tuesday, March 10, 1992, that their employment would be terminated immediately. Petitioners were needed at work on March 10, 1992, because plant production was behind and because the absence of all four workers on the same day would have rendered their eight man work crew ineffective. Petitioners were terminated because they were needed at work and because their unexcused absence was in direct violation of the instructions of their supervisor and established company policy. Mr. C. Olizia has not appeared at work since Monday, March 9, 1992. He was removed from the payroll subsequent to March 11, 1992, as a result of his long and unexcused absence from work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioners' claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY 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 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1573 Petitioners did not submit proposed findings of fact. Respondents' Proposed Findings of Fact 1. Rejected as procedural 2.-14. Accepted in substance 15. Rejected as a determination of the weight of evidence 16.-19. Accepted in substance 20. Rejected as a determination of the weight of evidence 21.-22. Accepted in substance 23.-25. Accepted in substance COPIES FURNISHED: Charles R. Fawsett, Esquire 20 North Orange Avenue, Suite 1000 Orlando, Florida 32801 Castel Olizia, pro se Edilon J. Baptiste, pro se Merlucier Olizia, pro se Francois Norelia, pro se 2007 Ravenall Avenue Orlando, Florida 32811 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The parties stipulated to the following matters which are incorporated in and made a part of the Findings of Fact: The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461. The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE 9th Street in Gainesville, Florida, for $32,000. The Respondent represented to the owners that the house would have a one-year warranty. On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street, and that based upon these violations a certificate of occupancy could not be issued. On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued. As of June 12, 1980, Respondent had not corrected all of the code violations. Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation. Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper. Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners. With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped. Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations. Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3. The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3. Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5. Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content. Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house. Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion. Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped. Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure. Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use. Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980. In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code. Johnson did not execute this written agreement. On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35). Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond. Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981. COPIES FURNISHED: Charles T. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The sign which is the subject of this proceeding is the north-facing sign of back-to-back signs owned by the Respondent, located on the west side of Interstate 95, approximately 0.95 miles south of State Road 84, outside the city limits of Fort Lauderdale, in Broward County, Florida. On June 30, 1977, the Respondent entered into a land lease for the site where it proposed to erect an outdoor advertising sign. Thereafter, on July 14, 1977, the Respondent applied for a permit to erect a south-facing sign on the leased property. This application was approved by the Department on July 26, 1977, and the south-facing sign was erected. This sign is not involved in this proceeding. Subsequently, on December 5, 1977, the Respondent filed an application to permit a north-facing sign on the same leased site where its south-facing sign had been erected, the sign to become a back-to-back structure. After a field inspection of the site, the Department approved the Respondent's application, and on February 1, 1978, it issued a permit for the north-facing sign back-to-back with the sign which had been permitted in July of 1977. The north-face sign was constructed and in place by the end of February, 1978, and it is the north face of this sign that is the subject of this proceeding. Subsequent to the construction of the north face of the subject sign, title to the land on which the structure was erected changed hands, and in April of 1979 the Respondent entered into another land lease with the new property owner. This lease runs for a period of ten years from April, 1979, and rental payments are due from the Respondent for the entire term of this lease. Back in the year 1974, the Department had issued to Tropical Acres Steakhouse a permit to erect a sign on Ravenswood Road, west of Interstate 95, approximately 750 feet north of the site where the Respondent's sign was erected. This Tropical Acres sign was permitted as a north-facing sign and was erected. However, it faces more eastward than to the north, its face being angled slightly northward to within a few degrees from due east. Ravenswood Road at the site which is involved in this proceeding runs approximately north and south, and is approximately parallel with Interstate 95. The Tropical Acres sign is on the east side of Ravenswood Road, its face almost perpendicular to Ravenswood Road. The location of this sign is west of the railroad tracks which are also west of and parallel with Interstate 95. The application filed by the Respondent for its north face shows that the site is 1,100 feet from the nearest existing sign. The Respondent's application for the south-facing sign also showed the distance from the nearest existing sign to be 1,100 feet. The Tropical Acres sign is approximately 750 feet from the Respondent's sign, but on Ravenswood Road west of Interstate 95 and not on Interstate 95 because the railroad tracks intervene. Its copy cannot be clearly seen from Ravenswood Road, but the copy is clearly visible from Interstate 95 by traffic traveling south. The permit for this sign has been renewed each year since 1974, and is valid now. On January 15, 1982, the Department served its notice of violation on the Respondent, contending that the north face of its sign at the subject location is illegal because it violates the spacing requirements of Section 14- 10.06, Florida Administrative Code. No violation notice was issued for the south face of this sign.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the notice of violation issued by the Department, alleging that the Respondent's north-facing sign on the west side of Interstate 95 at a point approximately 0.95 mile south of State Road 84, in Broward County, Florida, be DISMISSED. THIS RECOMMENDED ORDER ENTERED this 27 day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M.S.58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue As to DOAH Case No. 99-4902T, whether the outdoor sign bearing permit AF330 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0398T, whether the outdoor sign bearing permit AF330 was illegally rebuilt. As to DOAH Case No. 99-4903T, whether the outdoor sign bearing permit BF075 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0397T, whether the outdoor sign bearing permit BF075 was illegally rebuilt.
Findings Of Fact Respondent 1/ is the owner of two outdoor advertising signs, both of which are located in Indian River County, Florida, adjacent to Interstate 95. Both signs were erected in 1971 pursuant to sign tag numbers AF330 and BF075, respectively. Sign A is located .49 miles south of milepost 153. Sign B is located .67 miles south of milepost 155. Section 479.01(14), Florida Statutes, defines the term "nonconforming sign" as follows: (14) "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. When the signs were erected in 1971, the area in which both signs are located was a part of unincorporated Indian River County. In 1990, the area in which both signs are located was annexed into the City of Fellsmere, Florida. Prior to the annexation, the area was zoned by Indian River County under the agricultural designation. That zoning designation has not been changed by the City of Fellsmere and the area remained zoned agricultural at the time of the final hearing. At all times relevant to this proceeding an outdoor advertising sign has not been an allowable use in an area zoned agricultural. There is an outdoor advertising sign less than 1,000 feet south of sign B, and there is an outdoor advertising sign less than 1,000 feet north of sign B. Both of these other signs are on the same side of the Interstate as sign B. When sign B was erected in 1971, the spacing requirements for signs along an Interstate Highway was 1000 feet, meaning that a proposed sign could not be within 1000 feet of an existing sign. Since 1984, Section 479.07(9)(a), Florida Statutes, has provided that outdoor advertising signs along an Interstate Highway must be at least 1500 feet apart. When initially constructed both sign A and sign B consisted of six wooden poles and wooden stringers. In October 1999, both sign A and sign B were destroyed by a hurricane. The hurricane knocked sign A completely down, the stringers were damaged, and all of the poles were snapped at ground level. Similarly, the hurricane knocked sign B completely down, the stringers were damaged, and four of the six poles were snapped at ground level. On October 29, 1999, Petitioner issued the Notices of Violation that serve as the basis for DOAH Case No. 99-4902T and DOAH Case No. 99-4903T. Both Notices alleged that the respective sign has been destroyed and may not be re-erected. 2/ Subsequent to the damage to sign A, Respondent erected another sign at the same location as that previously permitted for sign A. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag AF330 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0398T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed. Subsequent to the damage to sign B, Respondent erected another sign at the same location as that previously permitted for sign B. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag BF075 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0397T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order requiring the removal of each sign at issue in this proceeding. DONE AND ENTERED this 17th day of July, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of July, 2000.
Findings Of Fact On January 7, 1980, Dowden Funeral Home, Respondent, obtained a building permit from Highlands County (Exhibit 4), to construct a wooden sign along U.S. 17 near Sebring, Florida; and thereafter constructed a 20-foot by 14- foot sign along U.S. 17, 0.25 mile northeast of U.S. 27. The location is just outside the city limits of Sebring, Florida, and U.S. 17 is a federal-aid primary highway. Respondent's sign is located approximately 200 feet from a Barnett Bank sign which was permitted and erected in 1977 (Exhibit 6). Respondent's witness contends that when he obtained the building permit and inquired if additional permits were needed to erect this sign, he was told no by the county building officials.
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
Findings Of Fact On August 5, 1985, Bill Salter Outdoor Advertising applied for a state sign permit for a location facing east on the south side of U.S. 90, a federal aid primary highy, 1.94 miles east of U.S. 90 and County Road 197, in Santa Rosa County, Florida. This application shows the proposed sign site to be 15 feet from the highway right-of-way, outside city limits, in an unzoned area. The Department denied the Petitioner's application by Memorandum of Returned Application dated September 3, 1985, because the sign site is an an area without permittable zoning, pursuant to Sections 479.11 and 479.111, Florida Statutes. Paul Salter, witness for Bill Salter Outdoor Advertising, presented evidence in the form of an application, lease, aerial map showing the plant of Air Products Company and a private road connecting this plant with Highway 90, and several photographs showing trucks using the private road to deliver materials to the Air Products Company plant. Paul Salter contends that the business activities required to qualify the site as unzoned commercial are the trucks driving in and out of the plant, and that each truck using the private road constitutes a commercial use under Chapter 479, Florida Statutes. He argues that the Air Products plant is a fiber plant or some type of manufacturing facility, and that the manufacturing activities take place on the private road, but the only activities he observed from U.S. 90 were the trucks using the private road and people cutting grass. Upon receipt of the permit application, an inspection of the proposed site was conducted by the Department's Outdoor Advertising Inspector for Santa Rosa County. By his measurements, the distance from the intersection of the private road and U.S. 90 to the Air Products administration building is .4 miles or more than 2,000 feet. There are large trees lining the private road, and these trees merge into a dense wooded area toward the south end of the road. The proposed sign site is unzoned, the area to the west of the entrance to the private road consists of woods, and to the east is a trailer park with several mobile homes. Approximately .3 miles down the private road the area clears out on the right side, and the manufacturing facilities and storage tanks become visible. Howevar, none of the commercial or industrial activities are visible from the main-traveled way of U.S. 90.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding that the application of Bill Salter Outdoor Advertising for a permit on the south side of U.S. 90, 1.94 miles east of U.S. 90 and County Road 197, in Santa Rosa County, Florida, be DENIED. This Recommended Order entered this 17th day of June 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 17th day of June, 1986. COPIES FURNISHED: Bill Salter Outdoor Advertising Post Office Box 422 Milton, Florida 32572 Vernon L. Whittier, Esq. Department of Transportation Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. Thomas Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301-8064 A. J. Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301-8064
The Issue The issue is whether Respondent's Notices of Intent to Revoke Sign Permit should be upheld.
Findings Of Fact Petitioner, Woody Drake Advertising, Inc., owns and operates an outdoor advertising sign (the "Sign"), which is located off Interstate 10 (I-10) in Leon County, Florida, and bears tag numbers AG329 and AG850. Respondent, Florida Department of Transportation, is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway System, Interstate, or Federal-aid Primary System (controlled portion) in accordance with Chapter 479, Florida Statutes. Jack Wainwright, Jr., is the owner and operator of Petitioner, having purchased the company from his parents approximately 13 years ago. Mr. Wainwright's family has been in the business of outdoor advertising since at least 1976. The Sign consists of one structure with two faces and is located within the controlled portion of I-10, .239 miles east of Still Creek. The Sign is a non-conforming, wooden, V- shaped, 12-pole sign. On June 28, 2009, the Sign sustained damage from high winds associated with a storm. The next day, after being notified of the damage, Mr. Wainwright went to the sign's location and physically inspected it. Grimes Cranes is in the business of, among other things, building and maintaining outdoor signs, such as the Sign at issue. Walter Grimes has owned Grimes Cranes since 2000. Mr. Grimes has worked in the business of erecting and maintaining wooden and metal outdoor advertising signs for approximately 23 years. On average, Mr. Grimes erects 18-to-20 outdoor advertising signs a year. By his estimate, Grimes Cranes has moved, erected, or maintained approximately 75 percent of the outdoor advertising signs in Tallahassee, Florida. Mr. Wainwright contacted Mr. Grimes to obtain an estimate to repair the Sign. They met at the Sign's location on either June 30 or July 1, 2009. Based upon his experience and visual inspection of the uprights, Mr. Grimes concluded that five of the 12 uprights could be reused when repairing the Sign as they were neither broken, splintered, nor otherwise damaged. Mr. Grimes concluded that 35-to-40 percent of the total Sign had been destroyed by the storm. This conclusion was based upon his personal examination of the Sign and his experience in maintaining and erecting outdoor advertising signs. After Mr. Grimes' inspection of the Sign, Mr. Wainwright disassembled the Sign and transported the materials to his father's farm. Once he disassembled the Sign, Mr. Wainwright assessed the damage to it. Based upon his knowledge and experience as owner of Petitioner sign company for the past 13 years, Mr. Wainwright determined that six of the 12 uprights were reusable. Although Mr. Grimes intended to use the five uprights he found to be undamaged in the rebuilding of the Sign, he was not able to do so because Mr. Wainwright had removed the uprights from the area. Mr. Grimes determined it was simpler and more economical to install new uprights on the site rather than haul the reusable ones from their present location on the Wainwright family farm. Ms. Lynn Holschuh has been Respondent's State Outdoor Advertising and Logo Administrator since 1992. While well educated with both a bachelor's and master's degree in English, she has not worked in the business of erecting outdoor signs; has never personally erected an outdoor advertising sign; and has no personal experience building an outdoor advertising sign. The two Notices issued by Respondent that are the basis for this action were signed by Ms. Holschuh as the State Outdoor Advertising and Logo Administrator. The Notices state Florida Administrative Code Rule 14-10.007(6)(a) as the basis for the proposed action, alleging that "[m]ore than 60% of the upright supports have been damaged such that replacement is required." Ms. Holshcuh never personally inspected the Sign's uprights and has no personal knowledge as to whether eight or more of the uprights were damaged such that normal repair practices of the industry required their replacement. The Notices were issued after she reviewed photographs taken on July 7, 2009, by an inspector for Respondent. Ms. Holschuh determined, after inspecting the photographs, that ten of the Sign's uprights had been damaged since only two were standing when the inspector took the pictures. This was an assumption on her part based upon the photographs, not her personal inspection of the Sign and uprights following the damage from the storm. Respondent's inspector returned to the site of the Sign on August 17, 2009, took additional photographs, and noted that a new 10-pole sign had been erected on the site. The Sign had been permitted as a 12-pole sign, but had been rebuilt as a 10-pole sign with 10 brand new uprights. Respondent interprets Florida Administrative Code Rule 14-10.007(6)(a) as requiring that the sign owner use the poles that are not damaged in rebuilding the sign. Respondent does not interpret this rule provision to allow the erection of a completely new sign. Ms. Holschuh admitted that Florida Administrative Code Rule 14-10.007(6)(a) does not explicitly require the actual re-use of the non-damaged upright supports when a non-conforming sign is re-erected. Respondent concedes that as long as 60 percent of the uprights had not been damaged to the extent that replacement of the upright supports was required due to the damage, the sign could be disassembled and re-erected. Ms. Holschuh agreed that the Sign could have been disassembled and re-erected if no more than seven of the uprights had sustained damage. Damage to seven of the uprights would constitute 58.33 percent replacement while damage to eight of the uprights would constitute 66.67 percent replacement.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Notices of Intent to Revoke Sign Permit. DONE AND ENTERED this 7th day of January, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2010. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Claude Ridley Walker, Esquire Guilday, Tucker, Schwartz & Simpson, P.A. 1983 Centre Pointe Boulevard, Suite 200 Tallahassee, Florida 32308-7823 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie C. Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
