Findings Of Fact The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 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 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Foster and Kleiser are the owners of signs located on I-275 at the off- ramp of 54th Avenue, Pinellas-Hillsborough Cloverleaf. These signs are 198 feet from the beginning of the pavement adjacent to the signs and 15 feet from the right of way. The location is in an unincorporated portion of Pinellas County. On December 22, 1972, Ace Outdoor Advertising Co., Inc., the predecessor in interest of Foster and Kleiser as regards this sign, sought and received a permit for the construction of a sign located at "I-75. . .five miles north of St. Petersburg." These permit numbers have been renewed every year until the present with Foster and Kleiser succeeding in interest to Ace Outdoor Advertising Co., Inc. through purchase in 1976. In late 1972, two members of the Department of Transportation, a Mr. Boger (an outdoor advertising inspector now deceased) and Mr. Moran along with Mr. Arthur Hempel, the President of Ace Outdoor Advertising Co., Inc. looked over the area in Pinellas County where the sign was intended to be constructed. At that time Mr. Hempel showed Mr. Boger and Mr. Moran the general area in which the sign would be erected, said area being a strip of approximately 1500 feet fronting I-275 just north of the 54th Avenue North cutoff. No specific site for the sign was stated to Mr. Moran or Mr. Boger and it was pointed out by the DOT personnel that a zoning change would have to be accomplished to permit any sign to be constructed. This rezoning was later made by the County Commission and the land in question was changed from A-1 (agricultural) to CP (Commercial Parkway) in 1973. The sign in question was not erected until on or about June 21, 1977, and is located approximately 198 feet north of the widening for the beginning of the off-ramp at the 54th Avenue North interchange of Interstate 275 in Pinellas County. Prior to the promulgation of Rule 14-10 the Department used as its rule and regulation regarding spacing of signs the Agreement between the Governor of the State of Florida and the United States Department of Transportation, which is now set forth verbatim in Rule 14-10.06 which was adopted in April 1977. The Agreement was enforced by the Department prior to 1976 when it was adopted as a rule. On or about July 27, 1977, the Department cited Respondent Foster and Kleiser for a violation of F.S. 479.02 and Rule 4-10.06 for having erected an outdoor advertising sign within 500 feet of the widening of the pavement at the exit from I-75.
Recommendation For the reasons stated above and in the light of the applicable law, since the sign in question is nonconforming and since currently valid permits have not been issued for the site at which it was erected in June, 1977, it is illegal, cannot be permitted and should be removed. DONE and ORDERED this 28th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1978. COPIES FURNISHED: John A. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Horace A. Andrews, Esquire 602 Florida National Bank Building St. Petersburg, Florida 33701 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-1430 FOSTER AND KLEISER, Respondent. /
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding has been erected on a small parcel of land located approximately one-quarter of a mile west of First Street on Rockland Key, next to the southbound lane of U.S. 1, in Monroe County, Florida. This location is outside the city limits of any municipality. On approximately October 1, 1983, Mr. Frank Toppino, who is not a party to this proceeding and who was not presented as a witness at the hearing, leased the subject property to the Pier House Inn and Beach Club for one year. Under the terms of this lease, the Pier House Inn received the right to use the property for an outdoor advertising structure which the parties to the lease contemplated would be constructed there. The Pier House agreed to pay the sum of $950 to Mr. Toppino as rent for the year. In addition, the Pier House agreed to undertake construction of the sign on the land for the benefit of Mr. Toppino, the lessor, after the lease expires. The PIER House received the right to use this land for one year, and the right to place advertising copy of its choice on the face of the outdoor advertising structure for one year. The lease between Mr. Toppino and the Pier House Inn covering the subject property was received in evidence. This lease, and the testimony of the general manager of the Pier House Inn who executed it as lessee, which is detailed above, supports a finding of fact that Mr. Frank Toppino and not the Pier House was the owner of the outdoor advertising structure which is the subject of this proceeding on October 1, 1983. Subsequently, when the Department's Outdoor Advertising Administrator made his inspection of the subject sign, there was no state outdoor advertising permit affixed thereto, and the Department has not issued any permit for this structure. The sign was erected between two other permitted signs, and it is closer than 500 feet to both of these existing and permitted structures. The sign which is the subject of this proceeding is located adjacent to a federal- aid primary highway outside any incorporated city or town. It is visible from U.S. 1, and it is within 660 feet of the edge of the pavement of this highway. The Department's Outdoor Advertising Administrator made a determination that the Pier House Inn was the owner of the sign in question based upon information contained in a Monroe County Building Permit application, and based upon the hearsay information received during telephone conversations. However, this information is controverted by the direct testimony of the general manager of the Pier House Inn which is itself corroborated by the lease between Mr. Toppino and the Pier House which is in evidence. Thus, the testimony received from the Department's witness is not of sufficient quality to support a finding of fact that the Pier House Inn is the owner of the sign in question. Moreover, the Department has the burden of proof on this issue, and the quantity and quality of the evidence presented on the matter of ownership of the subject sign does not carry this burden.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the violation notice issued on December 12, 1983, to the Pier House Inn and Beach Club, be dismissed, without prejudice to the reinstitution of proceedings in which the violation notice is directed to the actual owner of the sign in question. THIS RECOMMENDED ORDER entered this 23rd day of August, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
Findings Of Fact U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes. University Boulevard (SR 109) is not a federal-aid primary highway. Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing. The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard. Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by 48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit. This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign. The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner, National Advertising Company, is entitled to the issuance of a vegetation control permit for its south-facing advertising billboard located West of Interstate I-75, in Lee County, Florida.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system, including interstate highways. Construction of Interstate 75 in the relevant area of Lee County, Florida, was completed and accepted by the DOT on or about February 22, 1979. On March 10, 1980, the Florida Department of Transportation issued an outdoor advertising sign permit to Florida Outdoor for a billboard to be located adjacent to I-75, .25 miles north of the intersection of I-75 and State Road 82 in Lee County. The billboard was constructed and the billboard structure, together with the sign permit, was acquired by Petitioner in May of 1982. Petitioner holds a current valid sign permit, DOT sign permit number AB-118-10, for the above sign. Said sign is a non-conforming sign under the Rules of the DOT and cannot be moved or raised. Petitioner submitted a properly completed application for a vegetation control permit to the DOT on February 4, 1991. Petitioner's sign board does not have five hundred feet of exposure along the interstate highway within a one thousand foot window and is therefore a screened board under the provisions of the DOT's rules. Following review of the application by the District Roadway Maintenance Engineer, it was determined that the area covered by the vegetation control permit was within an area specifically preserved during the construction process which prohibits any pruning, trimming, or removal of trees, shrubs, or vegetation in that area. Based on that determination, the permit was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the vegetation control permit requested by National Advertising Company on I-75 (S.R. 93) in Lee County, Florida, should be GRANTED, pursuant to the provisions of Chapter 14-13, Florida Administrative Code. DONE AND ENTERED this 30th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th December, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. National Advertising's Proposed Findings of Fact: Accepted in substance: paragraphs 1,2,3,4 (in part) 5,6 (in part), 8,10. Rejected as irrelevant or immaterial: paragraph 4 (in part-coverage in Preliminary Statement), 6 (in part), 7,9,11. Rejected as a conclusion of law: paragraph 12,13. Department of Transportation's Proposed Findings of Fact: Accepted in substance; Stipulation of Facts; paragraphs 1 (in part), 2 (in part). Rejected as conclusions of law: paragraphs 1 (in part), 2 (in part). Copies furnished: Gerald S. Livingston, Esquire Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact Lamar acquired permits AA-634 and 7504 from Peterson Outdoor Advertising Company for a double-faced sign located on U.S. 98, South, approximately one-half mile north of Crystal Lake Drive on a site leased from Mary D. and Billy Allred. The lease (Exhibit 1.), executed in 1978, was for a three-year term with automatic renewal for an additional five year period and thereafter from year to year on the same terms and conditions unless terminated by lessee by giving 30-days notice prior to the end of the lease year. By warranty deed dated June 14, 1983, (Exhibit 2.) Sun State acquired the property on which this sign was located from Allred. Rent on this lease for 1984 was sent to Allred by Lamar, endorsed over to Sun State and cashed by Sun State. A check for rent for 1985 sent by Lamar to Sun State was never negotiated. By letter dated April 3, 1985, (Exhibit 4.) Sun State Homes told Lamar to immediately remove the sign from its property on U.S. 98, South. On May 16, 1985, Sun State applied for a permit for a sign on U.S. 98, 550-feet north of North Crystal Lake Drive. This application was disapproved by DOT on June 7, 1985, in Exhibit 3 because it was in conflict with the sign for which Lamar held tags for the proposed site. On or about the same time, Sun State applied to Polk County for a building permit to erect a sign at this site. Polk County disapproved the application because DOT had denied the permit. By letter dated May 29, 1985, Sun State appealed the denial of their application. On or about May 27, 1985, Lamar removed their sign from Sun State's property. On May 28, 1985, Lamar submitted an application for a permit to erect a sign on U.S. 98, 1,200 feet north of N. Crystal Lake Drive (Exhibit 5.) and simultaneously surrendered tags no. AA-634 and 7504. Lamar had obtained permission from the owner of that property to erect a sign at this site. This application was denied by DOT because of the appeal by Sun State from its denial. DOT will not approve an application for a sign permit when the right of occupancy of the site is contested. Lamar appealed this denial and the two cases were consolidated for hearing. The two applications are mutually exclusive as only one can be granted without violating spacing requirements.
Findings Of Fact Larry Brummitt owned a sign on U.S. 90 in Greenville, Florida advertising Country Corner for which he held a permit for seven or eight years. U.S. 90 is a federal-aid primary highway. Mr. Brummitt desired to rebuild and relocate this sign a short distance from its authorized location and, to insure he did things properly, sought advice both from the advertising sign inspectors at Lake City and from the State Administrator of the Outdoor Advertising Section in Tallahassee. At both places he was told that be could not get an application for a new sign approved until his existing sign was removed because the new sign would violate the spacing requirements of Rule 14D-10.06(b)3, Florida Administrative Code while the existing sign was up; that an application would not be accepted while the former sign was standing; that the policy of the Department, when conflicting interests desired to erect signs where only one could be erected, was the person whose application was first received would be approved. The Department's long-standing policy, which was memorialized in a memorandum to all District Outdoor Advertising Sign Administrators in 1978, is that where conflicting applications for signs are received, the first submitted will be approved. Relying upon this information, Petitioner prepared his application, removed the old sign, and at 10:00 a.m. on 2 June 1980 presented his application to Respondent for a permit to erect his replacement sign. On 24 March 1980 American Sign and Indicator Company first approached Respondent's sign inspector to inquire about erecting a time and temperature sign for the Bank of Greenville. They were told that a permit for such a sign could not be issued because it would be within 500 feet of the Country Corner sign and would violate the spacing requirements unless Brummit's sign was first moved. At 1400 hours on 2 June 1980 American Sign and Indicator Company presented an application at the Lake City Headquarters of Respondent for a permit to erect a time and temperature sign at approximately the same location earlier requested by Brummitt. In his letter of 11 June 1980 the District Administrator, Outdoor Advertising, in Lake City advised Mr. Brummitt that his application was being disapproved and of his right to petition for an administrative hearing within 14 days or the denial would become final. As reasons for denying the application the letter stated: The application indicates the proposed location would be within 500 feet if a proposed time and temperature display to be erected by the Bank of Greenville in the County of Madison. The Bank of Greenville has been dealing in good faith with the Department to erect this display since January 5th, 1980. After obtaining the necessary criteria and additional expenses accrued, the Department feels the bank should be allowed to erect the display, because we feel they were the first applicant. When questioned by the Hearing Officer how Respondent "reasoned" the bank's application was received prior to Petitioner's application, the District Sign Inspector acknowledged that he had discussed these applications with the Chief Right-of-Way Agent in District 2, Mr. Bielling, under whose supervision the Outdoor Advertising Section comes, that Mr. Bielling is his boss and tells him what to do (Tr. p. 24-25) and that as far as the sign inspector is concerned, Mr. Bielling has the prerogative to change DOT policy.
The Issue This case arose upon the filing of a complaint against Dick Signs by J. H. Hobson, Outdoor Advertising Agent, Department of Transportation Right of Way Bureau. The case was thereafter referred to the Division of Administrative Hearings by the Department of Transportation for hearing to determine whether Dick Signs was in violation of Section 497.07, Florida Statutes, by erecting, using or maintaining advertising structures without acquiring and affixing to said structures the permits required by law. Counsel for the Department of Transportation moved for additional time to submit evidence of notice of the hearing and was granted leave to file with the Hearing Officer said notice not later than October 28, 1975. Having examined the notice, the Hearing Officer finds that notice was given in the manner and within the time prescribed by Chapters 120 and 79, Florida Statutes. James H. Hobson was called and his sworn testimony was received regarding the six signs charged to be in violation of Chapter 479, Florida Statutes, in the Administrative Complaint. Based upon his testimony the Hearing Officer makes the following findings:
Findings Of Fact The first sign referenced in the charges was located on S.R. 775 and ALT 45, 2.75 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 24' x 10', bore a 1972 permit with number 2485-6-72 issued to Dick Signs, bore a plague indicating it was owned by Dick Signs, and had an advertisement for First Federal on the date of inspection. The annual licensing fee is $6, and has not been paid for the years 1973, 1974 and 1975. The second sign referenced in the charges was located on S.R. 775 and ALT 45, 2.31 miles south of its junction with U.S. 41. This sign was inspected by the witness Hobson on June 18, 1975. This sign was 10'x 40' and was double faced, presenting advertising copy on two directions which could be seen from the highway. It bore a 1969 permit, number 4282-10-69 issued to Dick Signs and bore a plague indicating it was opened by Dick Signs on the date of inspection. The annual fee for said double faced sign is $20, and this fee has not been paid for 1970, 1971, 1972, 1973, 1974, and 1975. The third sign referenced in the charges was located on S.R. 775 and ALT 45, 2.59 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 10' x 40', bore a 1972 permit number 4195-10-72 issued to Dick Signs and bore a plague indicating it was owned by Dick Signs on the date it was inspected. The annual fee for this sign is $10, and this fee had not been paid for the years 1973, 1974, and 1975. The fourth sign referenced in the charges was located on S.R. 775 and ALT 45, 1.10 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 10' x 24' and bore a plague indicating it was owned by Dick Signs. It did not have any permit. The annual fee for said sign is $6. The fifth sign referenced in the charges is located on S.R. 775 and ALT 45, 1.10 miles south of its junction with U.S. 41. It was personally inspected by the witness Hobson on June 18, 1975. This sign bore a 1972 permit number 2076-4-72 issued to Dick Signs and a plague indicating it was owned by Dick Signs on the date of inspection. The size of this sign requires an annual fee of $6 and had not been paid in 1973, 1974, and 1975. The sixth sign referenced in the charges was located on S.R. 775 and ALT 45, 1.68 miles south of its junction with U.S. 41. It was personally inspected by the witness Hobson on June 18, 1975. On the date of inspection it bore a 1972 permit issued to Dick Signs and a plague indicating it was owned by Dick Signs. The annual fee for this sign is $10 and it had not been paid in 1973, 1974, and 1975. The witness testified that Dick Signs was a licensed outdoor advertiser holding License No. 18233, valid for 1975. The witness further testified that in the course of his duties be would receive any applications for renewal of the permits of the signs identified above, and these applications had not been received prior to the hearing.
The Issue Whether Respondent's outdoor advertising permits BU 839 and BU 840 became void pursuant to the provisions of Section 479.07(5)(a), Florida Statutes.
Findings Of Fact On August 18, 1998, Petitioner issued valid state outdoor advertising permit numbers BU 839 and BU 840 to Respondent for a sign with two faces, one facing north and the other facing south, to be erected at a specified location on the west side of State Road 5, 2000 feet north of PGA Boulevard in Palm Beach County, Florida. Section 479.07(5)(a), Florida Statutes, provides, in pertinent part, as follows: . . . If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. 1/ Petitioner adopted the following definition at Rule 14- 10.001(2)(c), Florida Administrative Code, on June 28, 1998: (c) "Completed Sign", for the purposes of Section 479.07(5)(a), Florida Statutes, means the erection of the sign structure as described in the permit, as well as attachment of the facing to the structure, and the posting of a message to the facing. Petitioner asserts the permits became void by operation of law on May 16, 1999, because that date is 271 days from August 18, 1998, the date the subject permits were issued. As of May 16, 1999, no completed sign had been erected by Respondent on the permitted site as the term "completed sign" has been defined by Rule 14-10.001(2)(c), Florida Administrative Code. Petitioner notified Respondent on May 21, 1999, that the subject permits were void. No representative of Petitioner misled or lulled Respondent into inaction at any time pertinent to this proceeding. Palm Beach County, the local permitting agency, requires a "Special Permit" before an outdoor advertising sign can be erected within its jurisdiction. Respondent applied for such a Special Permit for the subject signs on March 10, 1998. Palm Beach County issued Respondent a Special Permit for the subject location, but imposed a special condition, to which Respondent agreed. The special condition required Respondent to remove one of its other signs worth approximately $100,000. In addition to the Special Permit, Respondent was required to obtain from Palm Beach County a building permit for this project. That building permit was issued May 14, 1998. Respondent applied to Petitioner for the two permits that are at issue in this proceeding on May 18, 1998. On June 16, 1998, Petitioner denied Respondent's application on the grounds that additional information was needed. After the additional information was supplied, the subject permits were issued on August 18, 1998. On November 15, 1998, Respondent finished the site work that had to be done before the sign could be constructed. The Palm Beach County building permit expired 160 days after it was issued. Respondent secured the renewal of that permit on January 20, 1999. Petitioner placed orders for the sign construction in February 1999. The structural components arrived at the permitted site on April 5, 1999. Between April 5 and April 9, 1999, a 25-foot deep hole was dug, into which the 47-foot long, 4-foot diameter steel monopole was lowered by crane, and six tons of concrete were poured to construct a foundation and support for the sign superstructure. On April 9, 1999, Palm Beach County approved the final inspection of the excavation and foundation. On April 13, 1999, the superstructure of the sign was lifted onto the steel monopole by crane and installed, thereby completing construction of the two-faced sign. 2/ The cost of this construction totaled approximately $50,000. On April 14, 1999, Palm Beach County issued a stop work order (red tag) to Respondent for failure to post permit and plans at the job site and because a subcontractor blocked traffic with a crane that was being used to erect the sign structure. This red tag prevented Respondent from doing any further work on the two-faced sign. Had Respondent violated the red tag, it would have been exposed to a civil penalty of $250 per day and misdemeanor charges. Shortly after it learned that a red tag had been issued on April 14, 1999, representatives of Respondent met with Palm Beach County building officials and disputed their rationale for the red tag. Believing that the red tag issue with Palm Beach County had been resolved, Respondent entered into contracts with advertisers for the respective faces of the two-faced sign, one on April 22 and the other on May 11, 1999. It would have taken less than a day to install advertising copy on these signs. Palm Beach County did not lift its red tag on these signs until July 21, 1999. On August 9, 1999, Palm Beach County approved the two-faced sign on final inspection. Respondent placed advertising copy on both faces of the sign on August 9, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that applies the doctrine of equitable tolling and declares permits BU 839 and BU 840 valid. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. Hearings 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 this 28th day of December, 1999.
