Findings Of Fact Respondent, San Ann Food Stores, is the owner of an outdoor advertising sign located 5.89 miles east of the Hillsborough County Line, on the east side of Interstate 4 in Polk County. More specifically, the sign is east of the U.S. 98 and I-4 intersection which lies just north of the City of Lakeland. The sign is two-sided, with one side facing eastward, and the other facing westward. It sits on top of two poles which are approximately sixty feet high. The parties have stipulated that the sign is visible from I-4, although just barely, and lies within five hundred feet of that highway. They have also stipulated that no permit has ever been issued by petitioner, Department of Transportation (DOT), authorizing its use. The sign does not lie within the corporate limits of a city; however, this is immaterial to the resolution of these cases. On an undisclosed date, a DOT inspector observed the sign while conducting an inspection of another sign and found no display of a current valid permit tag. After checking his records, he found that no permit had ever been issued authorizing its erection and use. It was also determined, without contradiction, that the sign is within five hundred feet of the interchange of I-4 and U.S. 98. Such an intersection is classified as a restricted interchange. According to Rule 14 10.06(2)(b)2. and state law, no signs are permitted within five hundred feet of such an interchange. The sign in question was erected by Sun Oil Company around 1967 or 1968 when no permit was required. Respondent purchased the property on which the sign is located in April, 1978. It assumed that Sun Oil had obtained all necessary permits from the state to maintain and use the sign. It did not learn that Sun had failed to obtain a sign permit until the Notice of Violation was issued by DOT in February, 1985. It is willing to repay all fees owed during prior years if DOT will allow the sign to remain.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's sign (facing east and west) be found in violation of the statutes and rules cited in the conclusion of law portion of this order, and that it be removed. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
Findings Of Fact State outdoor advertising permits numbered 108 60-10 and 10861-10 were issued in February of 1979, and are now held by Headrick Outdoor Advertising, Inc. These permits authorize a sign on the south side of U.S. 90A, approximately 300 feet west of SR 95A, in Escambia County, Florida. In July of 1985, Lamar Advertising Company applied for state outdoor advertising permits to erect a sign facing east and west on the south side of U.S. 90A, approximately 400 feet east of U.S. 29, in Escambia County, Florida. The location proposed by Lamar in its application is in conflict with the location where Headrick holds permits, in that the two sites are less than 1,000 feet apart. The land where the Headrick signs had been located, and the site where the Headrick permits authorize a sign, has been graded and paved, and is being used as a shopping center. In the course of the construction of this shopping center, the Headrick signs were removed, and Headrick no longer has a lease for its permitted site or permission of the property owner to locate a sign there. Lamar has a lease to the site where it applied for permits. This lease is from the owner of the land, and it grants Lamar permission to locate a sign at the location sought to be permitted, through February, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the state sign permits numbered 10860-10 and 10861-10 held by Headrick Outdoor Advertising, Inc., authorizing a sign on the south side of U.S. 90A, approximately 300 feet west of SR 95A, in Escambia County, Florida be revoked. And it is further RECOMMENDED that the application of Lamar Advertising Company for permits to erect a sign facing east and west on the south side of U.S. 90A, approximately 400 feet east of U.S. 29, in Escambia County, Florida, be granted. THIS Recommended Order entered on this 15th day of January, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1987. COPIES FURNISHED: Robert P. Gaines, Esquire P. O. Box 12950 Pensacola, Florida 32576 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Mr. Jim Baughman Vice President Headrick Outdoor Advertising, Inc. 404 Jenks Avenue, Suite "B" Panama City, Florida 32401 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064
Findings Of Fact Petitioner leased the site in question in 1967, erected the sign thereon and has maintained the sign since that time. The sign in question is located within the city limits of Lakeland. The street along which this sign is located is U.S. Highway 98, a federal-aid primary highway. During the period from 1967 when erected until 1974 permits were not required for signs located within the corporate limits of cities or towns. Laws, 1974 c. 74-80 amended sec. 479.09(1), Florida Statutes, to require signs along federal aid primary highways within any incorporated city or town to have permits issued by DOT at no cost to the applicant. No application for permits for this sign was submitted by Petitioner until the application dated 11 May 1979, the denial of which led to these proceedings. The sign in question is located within 500 feet of a sign owned by Peterson Outdoor Advertising Co. which has been issued a permit. Peterson's sign was erected subsequent to the erection of Petitioner's sign. On December 18, 1978 Respondent sent to all outdoor advertising licensees and permittees a notice (Exhibit 5) reminding them that all signs inside city limits which are located on federal-aid primary highways are required to have permits and that, for those signs for which permits had not been issued, the owners had until February 17, 1979 to submit applications. Petitioner received this notice and submitted timely applications for permits on most of the signs it owned which were located along federal-aid primary highways within city limits. Petitioner presented no valid reason for its failure to timely apply for the permit here desired, but acknowledged that this failure was due to oversight or because the file for this sign had been removed from its usual place when other similar applications were submitted.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility under law of regulating and controlling outdoor advertising signs such as the one at issue in these proceedings. The Respondent, Marcent Florida, Inc., maintains or controls an outdoor advertising sign located at the intersection of Sandlake Road (State Road 482) and Interstate 4. The sign is located on property belonging to Grenada N.V. but Respondent has permission to maintain the sign at the location. The sign is approximately 14 feet by 48 feet, is 30 feet above ground, and, according to Respondent, "looks similar to a standard roadside billboard." At all times material to this case, the above-described sign did not have a valid DOT sign permit. At all times material to this case, the above-described sign contained language advertising lakefront, lakeview, homesites at North Bay. Additionally, the sign advertised a development known as Park Terrace. Both of the referenced developments are off-site and not immediately adjacent to the subject property. At all times material to this case, the above-referenced sign was located two hundred feet west of the center line of Sand Lake Road. Further, the sign was fifteen feet back from the right-of-way. The subject sign was erected in approximately 1985 or 1986 and is within 1500 feet of a DOT permitted sign. After Respondent received the notice of alleged violations, it made efforts to alter the language of the sign so that it would only advertise the availability of the property on which it is placed. To the date of the hearing, such changes had not been completed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign to be in violation of Chapter 479 as set forth above. DONE and ENTERED this 21st day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 4 are accepted. Paragraph 5 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 6 and 7 are accepted. Paragraph 8 is rejected as irrelevant or argument. Paragraphs 9 and 10 are accepted. Paragraph 11 is accepted. Paragraph 12 is rejected as irrelevant or argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 9 are rejected as irrelevant, argument or fact not supported by the weight of the evidence. COPIES FURNISHED: Jay O. Barber Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas M. Ramsberger Akerman, Senterfitt & Eidson Firstate Tower 255 Orange Avenue Post Office Box 231 Orlando, Florida 32802-0231 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
The Issue Based upon the Stipulation and the evidence received, the issue to be determined is whether Bill Salter has the written permission of the land owner to erect the proposed advertising signs.
Findings Of Fact Bill Salter filed an application for the erection of outdoor advertising signs, Exhibit 1, with the Department of Transportation. This application included a lease agreement and diagram of the proposed signs. Subsequently, the Department of Transportation received a copy of the letter addressed to Ronald Lashley of Bill Salter Advertising from W. L. Whisenhant and Luverne Whisenhant, the owners of the property upon which the proposed signs were to be located, cancelling the lease for the erection of the signs. Based upon this information, the Department of Transportation denied the application of Bill Salter. At the hearing a letter dated October 12, 1979, was introduced, which is a grant of permission to Bill Salter Advertising to erect an outdoor advertising sign at the location specified in the original application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application be granted. DONE and ORDERED this 1st day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Bill Salter Bill Salter Advertising Company Post Office Box 422 Milton, Florida 32570
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.
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 Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
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. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
