Findings Of Fact In 1976 an outdoor advertising company named Outdoor Media applied to the Department to have permits issued for a sign that had been built in 1971 on the north side of I-4, 1.42 miles west of U.S. 17/92/441 (Orange Blossom Trail) inside the city limits of Orlando. Permit numbers 2259-12 and 2260-12 were issued by the Department to Outdoor Media for the west face and the east face of this sign. In 1978 the Respondent, Peterson Outdoor Advertising, Inc., purchased this sign from Outdoor Media. A request for replacement tags was made and granted, and tag number 2259-12 was replaced by 7553-12, and tag number 2260-12 was replaced by 7554- In April of 1984 the Respondent again requested replacement tags, and tag number 7553-12 was replaced by AM 267-12, and tag number AM 7554-12 was replaced by AM 268-12. Sometime after April, 1984, this sign was removed, and the Respondent erected a new sign, a monopole, at a location on the north side of I-4, 1.5 miles west of U.S. 17/92/441 (Orange Blossom Trail). This is approximately 200 feet west of the place where the old sign had been located. The Respondent affixed tag numbers AM 267-12 and AM 268- 12 to the new monopole structure, but these tags were not issued for this sign. They had been issued for the old sign which was removed. The city limits of Orlando are such that the location of the new monopole is outside the city; while the location where the old sign had been was inside the city limits. The county allows a taller sign than may be built inside the City of Orlando, and the Respondent wanted to enhance the visibility of its sign by raising its height. The Respondent obtained a variance from Orange County to extend the height of the monopole sign to a total of 65 feet. The monopole sign at 1.5 miles west of U.S. 17/92/441 percents adjacent to the ramp leading onto I-4 and is less than 1,000 feet from the nearest permitted sign. The distance between these signs is 898 feet as measured by the Department's inspector using a measuring wheel. The Department's inspector has more than 11 years of experience. He has measured signs, sites and locations over 1,000 times. He is familiar with the state and federal requirements for calculating point to point measurements between signs, and he followed them in making the measurements in this case. The Department's inspector measured the distance between the Respondent's new monopole and the nearest permitted sign three times with the same result. Be ran the measuring wheel along the right-of-way of I-4 at right angles to the two signs. Five of the Respondent's witnesses also measured the distance between these signs with results ranging from 955 feet to 1,016 feet. However, none of these witnesses had any experience in making measurements between signs pursuant to state and federal requirements, and some of these distances were obtained by measuring along the ramp instead of along the side of the highway. Thus, the testimony of the Department's inspector is found to be the credible evidence supporting the finding that the two subject signs are 898 feet apart. The Department's evidence relative to when the new monopole was erected is vague and imprecise, and thus not of sufficient quality to support a finding of fact on this issue. The Respondent presented evidence to show that the monopole was erected in April of 1984, and it contends that it applied for the county variance in preparation for relocation and reconstruction of this sign. However, the Respondent's evidence that the monopole was erected in April of 1984 is self-serving, and not corroborated. Even the variance notice indicates that it was applied for on October 4, 1984. Thus there is likewise insufficient credible evidence to support the Respondent's contention relative to when this sign was actually constructed. Nevertheless, the Respondent erected its new monopole structure at the point on the north side of I-4, 1.5 miles west of U.S. 17/92/441, without having first obtained a state sign permit for this location. The Respondent's manager and its president both admit that tags numbered AM 267-12 and AM 268-12 were issued for the sign at 1.42 miles west of U.S. 17/92/441. Peterson Outdoor Advertising is a licensed outdoor advertising company. The firm's manager has been in the business for 27 years. The company president has been engaged in the business of outdoor advertising for more than 25 years, and he claims to have a familiarity with the law. From these facts, and from all inferences that can be drawn therefrom, there is not sufficient evidence to support a finding that this experienced outdoor advertising company was misled into moving its sign 200 feet westward without a permit by the Department's approval of its request for replacement tags for the old sign structure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent's sign on the north side of I-4, 1.5 miles west of U.S. 17/92/441, in Orange County, Florida, be removed. And it is RECOMMENDED that permits numbered AM 267-12 and AM 268-12 be REVOKED. THIS RECOMMENDED ORDER entered this 26th day of February, 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 26th day of February, 1986. APPENDIX Petitioner's Proposed Finding of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Replacement tags are not outdoor advertising sign permits. Rejected as not supported by competent substantial evidence, or irrelevant. Last sentence is accepted. Rejected as irrelevant. Lost tag application is not an application for outdoor advertising sign permit. Accepted. Rejected as not supported by competent substantial intent. Rejected as irrelevant, except for raising the height of the sign to 65 feet which is accepted. Rejected as irrelevant or not supported by competent substantial evidence, except for the granting of a variance and the building permit which are accepted. Rejected, as not supported by competent substantial evidence. Rejected, as not supported by competent substantial evidence. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32801-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Should Petitioner be granted a permit to change an on-premise sign to advertise a business not located on his property?
Findings Of Fact Petitioner Philip G. Mashalanie acquired part ownership of property adjacent to Interstate Highway 4 located in the city of Orlando, Florida in December of 1980. (Transcript, page 8.) On the premises there is a large building presently leased to a church-sponsored organization and a hospital, on which there is a sign thirty-five (35) feet long and twenty-four (24) feet high. At the time of hearing this sign advertised "Miller Mechanical Air Conditioning," referring to a business which had been located on the premises prior to purchase of the property by Petitioner. (Petitioner's Exhibit 6; Transcript, pages 10-17.) The message on both sides of the two-faced sign is within 660 feet of Interstate Highway 4 and is clearly visible to the traveling public. The sign has no permit from Respondent Department of Transportation, as it had advertised a business located on the property and no permit was required. Subsequent to purchase of the property and after Miller Mechanical Air Conditioning Company moved from the premises Petitioner sought a permit from Respondent Department to improve the subject sign and lease it to Amerifirst Federal Savings and Loan Association for advertising purposes. This financial association is Miami-based and is not located on the premises. (Petitioner's Exhibits 4 and 5.) By letter dated May 13, 1981 Respondent Department denied Petitioner's oral application for a permit, citing the lack of 1,000 feet of space between previously permitted signs as the reason for denial. Petitioner applied to the Orlando City Council and obtained a variance permit to convert the existing sign, with the stipulation that the sign area should be not more than 428 square feet. (Petitioner's Exhibit 2.) Testimony showed that Petitioner presented to the Council a plan for beautification of the area around the Sign which would advertise the aforementioned savings and loan association. (Petitioner's Exhibit 5.) The two-faced proposed sign is 236 feet east of a sign bearing permit tag #856510 with the message "Beautiful Barbados." A second sign immediately behind this sign and facing the other direction is permitted as sign #66476 and is also approximately 236 feet from the subject proposed sign. Petitioner and Respondent submitted memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the testimony adduced, the evidence admitted and after consideration of the proposed recommended orders of the parties, it is recommended that the Department of Transportation enter a final order denying the Petitioner's application for a permit to be issued for the proposed sign. DONE and ORDERED this 19th day of January, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 19th day of January, 1982. COPIES FURNISHED: Richard A. Leight, Esquire 39 West Pine Street Orlando, Florida 32801 Philip S Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, Janet C. Wyatt, owns an outdoor advertising sign which is situated on U.S. 19, .5 mile south of State Road 44 in Citrus County, Florida. One of the faces of this sign faces north and the other faces south. U.S. 19 is a federal-aid-primary highway. The Respondent applied for a permit for the subject sign from the Department of Transportation approximately 15 years ago. The Department did not issue the requested permit, and none has been issued to date. The subject sign is a 16 foot billboard which has been erected at a point which is 80 feet from the center line of U.S. 19. The width of the state's right-of-way is 100 feet from the center line of U.S. 19 at the point where the sign is standing. Thus, the entire sign structure is inside the state right-of-way. There is no identification of the sign's owner on the structure. The Respondent admits that she has no state permit for the subject sign, that her name as owner does not appear anywhere on the structure, and that the sign is situated inside the state right-of-way.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's sign situated on U.S. 19, .5 mile south of State Road 44 in Citrus County, Florida, facing north and south, be removed. THIS RECOMMENDED ORDER entered this 26th day of March, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Janet C. Wyatt 20 Crooked Branch Road Lecanto, Florida 32661 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The district outdoor advertising sign inspector inspected the sign in question alongside SR-10 in July 1979, found no permit on the sign and a permitted sign facing the same direction 440 feet from the offending sign and on the same side of SR-10. A check of the files revealed no application had been received for a permit for a sign at this location. Representatives of Tom West Homes, Inc. were contacted and the ownership of the sign was acknowledged. A representative further acknowledged that notice of this hearing had been received. SR-10 is a federal-aid primary highway.
The Issue Whether the sign of Petitioner is in violation of the Florida Statutes, Outdoor Advertising Law, Chapter 479 and particularly Chapter 479.07 for having erected this sign in violation of the zoning regulations and without a permit from the Department of Transportation.
Findings Of Fact An alleged violation notice was sent to Peterson Outdoor Advertising Corporation, Petitioner, by the Respondent, Department of Transportation, on July 27, 1977. The notice indicated that the sign owned by Petitioner located 300 feet north of 5-227, U.S. Highway 301 in Bradford County, Florida, with a blank copy was in violation of Ch. 479, Florida Statutes, Rule 14-10-05 (1)(a), Not zone for conforming sign - sign erected in a zoned agricultural area. Ch. 479.07(1) Florida Statutes, Rule 14-10.04 Sign erected without first [sic] obtaining a permit. A violation notice was received by Michael S. Nelson, lease representative for the Respondent, and a letter was sent to the District Administrator for Outdoor Advertising, Florida Department of Transportation, acknowledging receipt of the violation notice and requesting the Department of Transportation to set the cause for hearing. This administrative hearing is the result of such request. The Peterson Outdoor Advertising Corporation made an application for permit for a sign to be located at the location the subject sign now stands. The application for a permit was not approved for the stated reason that the requested location was in a zoned open rural area and outdoor advertising could not be permitted in such a location. Petitioner was so notified. Nevertheless a sign was erected by Petitioner and Respondent's inspectors found said sign at the location with no copy on it at the first inspection. Subsequent to that inspection, the sign was finished by Petitioner to advertise McDonalds, with the large golden "M", further stating: "Campers/ Buses 3 Miles Ahead on the Right, Open at 7:00 for Breakfast." The sign was erected without a permit in a zoned open rural area in Bradford County. The sign is approximately 15 feet off the right of way of Highway 301 in open rural country at least 3 miles from any industrial or commercial areas. Petitioner contends that he applied for a permit to erect the sign at the subject location but that his application was denied. Regardless, he erected the sign and has been endeavoring to have the rural area rezoned. Respondent, Department of Transportation, contends that the erection of the subject sign is in violation of the law inasmuch as it is the duty of the Department of Transportation to grant a permit before a sign is erected. Respondent further contends that the area in which the sign is located is in open rural country and the proposed sign location, even if it were rezoned to allow outdoor advertising, could not be permitted by the Department inasmuch as such rezoning would be "spot zoning" and contrary to the requirements of Chapter 479, Florida Statutes, Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code and contrary to the concept of "effective control" by the Florida Department of Transportation which has the duty to control outdoor advertising for the State of Florida. In response to a request to the Bradford County Zoning Commission, the following letter was received: Pursuant to our conversation on November 7, relating to the zoning classification of the C. M. Ritch property located approximately 2 miles South of Starke on Hwy. 301, the property is zoned Open Rural and under Bradford County Zoning Ordinances does allow outdoor advertising signs. The area in which the sign was erected is the area indicated in the letter. The Petitioner intentionally erected its sign in the open rural area of Bradford County and continues to allow it to stand although the Bradford County Zoning Ordinances show that no outdoor advertising is to be allowed.
Recommendation Remove the sign of Respondent for intentionally erecting a sign in an unzoned rural area without a permit from the Department of Transportation. Invoke the penalties provided in Section 479.18, Florida Statutes, for both the Petitioner and for the McDonald Corporation whose goods and services are advertised. Section 479.13, Penalties, provides: Any person, violating any provision of this chapter whether as principal, agent or employee for which violation no other penalty is prescribed, shall be guilty of a misdemeanor of the second degree, punishable as provided in Section 775.083: and such person shall be guilty of a separate offense for each month during any portion of which any violation off this chapter is committed, continued or permitted. The existence of any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon. DONE and ORDERED this 13th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Rick Hurst, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Michael S. Nelson Lease Representative Peterson Outdoor Advertising Corp. P. O. Box 301 Ocala, Florida 32670 L. M. Gaines, Director Bradford County Zoning Commission P. O. Drawer B Starke, Florida 32091 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: PETERSON OUTDOOR ADVERTISING NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL Petitioner, REVIEW AND DISPOSITION THEREOF IF FILED vs. FLORIDA DEPARTMENT OF TRANSPORTATION Respondent. / CASE NO. 77-1432T
The Issue Whether respondent's initial proposal to deny petitioner's application for a permit to construct an outdoor advertising sign had a reasonable basis in law and fact at the time it occurred or was otherwise substantially justified; or, if not, whether special circumstances would make an award of costs and fees unjust?
Findings Of Fact In the fall of 1988, petitioner proposed to erect a sign facing east, within 15 feet of an existing outdoor advertising sign, on the north side of State Road 200, approximately .6 miles west of the intersection of State Road 200 and I-75. He planned to place a single face at such an angle to the existing, single-faced sign that a V configuration would result. Another outdoor advertising company held a permit for the existing sign, which faced west. It stood on property belonging to a land owner who did not own the property to the east on which Ray proposed to raise its sign. On November 10, 1988, the Department of Transportation issued a notice of intent to deny petitioner's application for a permit to construct the outdoor advertising sign. Petitioner reasonably incurred attorneys' fees of $787.50 and costs of $28.00 before Department of Transportation decided, well after the evidentiary hearing held April 5, 1989, to issue the permit, after all. As far as the record reveals, the Department has faced only one other situation in which an applicant for a permit to construct a sign, within 15 feet of an existing sign, proposed to build on property not owned by the land owner who had leased to the company which had built the existing sign, viz., Ad-Con Outdoor Advertising v. Department of Transportation, No. 89- 0087T. In that case, too, the Department issued a permit for the second sign. In an internal memorandum dated February 17, 1989, respondent's Rivers Buford wrote Dallas Gray, while the Ad-Con application was pending, the following: Inasmuch as the proposed sign would be within fifteen feet of another sign it would, by virtue of the provisions of Rule Chapter 14-10.1006(1)(b)3, be considered a part of a V-type sign and thus its two faces would be exempt from the minimum spacing requirements of Section 479.07, F.S. Respondent's Exhibit No. 2. The memorandum antedated the final hearing in Case No. 88-6107 by more than six weeks. Presumably, the intended rule reference was to Rule 14-10.006(1)(b)3., Florida Administrative Code. At the hearing in the present case, the Department of Transportation produced two witnesses to explain why the Department initially turned down petitioner's application. In their view, the Department of Transportation should never have granted petitioner's application, in order to protect rights vested in the other company, particularly a purported, preemptive right the other company had, by virtue of the location of its existing sign, to build another sign where Ray proposed to build, even though the other company did not own and had not leased the site Ray applied to build on. They asserted not only that the Department was substantially justified in turning down petitioner's application when it was originally considered, but also that any other similar application should be turned down. In their opinion, the Department erred in issuing permits in both cases in which the question has arisen. They attributed the eventual issuance of permits to petitioner and in the Ad-Con case to misinformed and misguided departmental employees. As authority for this view, Mr. Kissinger, respondent's Motorist Information Services Coordinator, cited Sections 479.07(9)(a) and 479.01(14), Florida Statutes (1989) and Rule 14-10.006(b)(2) and (3), Florida Administrative Code.
Findings Of Fact On November 4, 1982, the Petitioner, Enterprise Outdoor Advertising, Inc., submitted applications for permits for two signs facing Interstate No. 4 (hereafter I-4) near the intersection of I-4 and 50th Street in Tampa, Florida. The specific location of the proposed signs is described as: Sec. 205 E/B .02 F/W Interstate I-4 50th Street and I-4 Sec. 205 E/B .02 F/E Interstate I-4 50th Streetand I-4 Both applications were disapproved by the Department of Transportation on November 9, 1982. The two signs for which Petitioner sought permits were to be located on a piece of property owned by Mr. E. B. Rood (hereafter referred to as Rood property). The Rood property is located adjacent to I-4, east of 50th Street, which runs north and south. The west facing sign application (see Respondent's Exhibit 11) was denied by the Department of Transportation because of a conflicting existing sign, Permit No. 7716-12, held by Foster and Kleiser, Intervenor. Permit No. 7716-12 was for a westerly facing sign physically located on the Rood property, pursuant to a lease between Intervenor and E. B. Rood. (See Respondent's Exhibit 4.) On November 3, 1982, Mr. E. B. Rood provided written notice to Foster and Kleiser that he was cancelling the lease. By the terms of the lease, the Foster and Kleiser sign then had to be removed within 30 days. On November 9, 1982, when the Petitioner's application was denied, the sign erected pursuant to Permit No. 7716-12 was still physically standing on the Rood property. Sometime prior to December 3, 1982, the sign was removed by Foster and Kleiser and the Department of Transportation was notified that the sign had been dismantled. (See Respondent's Exhibit 9.) Subsequent to dismantling its west facing sign, the Intervenor, Foster and Kleiser, applied for and received a permit for a westerly facing sign on a piece of property adjacent to I-4 just west of 50th Street and the Rood property. This second piece of property, located west of the Rood property, is referred to as the Bize property. At the time Foster and Kleiser applied for the westerly facing sign permit on the Bize property, there were no pending applications for a conflicting sign, and the previous conflicting sign on the Rood property had been dismantled. The application filed by Petitioner for a permit for an easterly facing sign on the Rood property was denied because of a conflicting permit, No. AG558- Permit AG558-12 was for a sign on the Bize property which would face east adjacent to I-4. At the time of Petitioner's application on November 4, 1982, no sign had actually been erected pursuant to Permit No. AG558-12. Permit No. AG558-12 had been issued to Foster and Kleiser in February, 1982, pursuant to an application accompanied by a written lease containing the purported signature of Mr. John T. Bize, the named lessor. (See Respondent's Exhibit 6.) Mr. John T. Bize died on January 1, 1977, and, therefore, was deceased on February 19, 1982, the date of the lease submitted by Foster and Kleiser with its application for Permit No. AG558-12. The only witness signature appearing on the lease was that of Thomas Marc O'Neill. Mr. O'Neill did not observe or witness the lessor sign the lease and felt, at the time he signed, that he was witnessing the signature of Ronald L. Westberry, who signed the lease on behalf of Foster and Kleiser. At the time he signed as a witness, Mr. O'Neill was and continues to be an employee of Foster and Kleiser. Subsequent to its disapproval of Petitioner's application for an easterly facing sign permit, the Department of Transportation was informed by Petitioner of the invalid lease on which Permit No. AG558-12 had been issued. By letter dated November 17, 1982, the Department notified Foster and Kleiser of the invalid lease and gave Foster and Kleiser 30 days within which to correct the problem. On November 22, 1982, the Department received a new lease for the Bize property and sign permit AG558-12. The new lease contained the following addendum: Effective date of lease shall be the of [sic] closing of purchase of said property or erection of signs, which- ever is first. There was no further evidence of the actual effective date of the lease. The Department of Transportation has a policy of requiring, with an application for a sign permit, a lease or other written evidence that the landowner has given permission to use his property for outdoor advertising purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order denying the Petitioner's two applications for outdoor advertising sign permits. DONE and ENTERED this 20 day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS 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 20th day of June, 1983. COPIES FURNISHED: Michael A. Houllis, Esquire 10525 Park Boulevard North Seminole, Florida 33542 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Steven L. Selph, Esquire Post Office Drawer 1441 St. Petersburg, Florida 33731 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the subject signs of Respondent should be removed.
Findings Of Fact A notice of violation and a notice to show cause was sent to the Respondent, Harry Moody Signs and delivered on September 13, 1977 alleging violations of Chapter 479, Florida Statutes and violations of Rule 14-1O.4. The violation notice was marked Petitioner's Composite Exhibit 1 and entered into evidence. The notice cited six signs and for clarity the Hearing Officer numbered the signs from one through six on the violation notice. Testimony and evidence was taken on each sign as follows: Sign One: This sign was withdrawn from consideration by consent of both parties. Sign Two: The parties agreed that a permit would be issued for this sign within the city limits of Weeki-Wachee, Florida providing it was removed from the state's right-of-way and moved back some 51 feet. Sign Three: This double faced sign has no permit. The sign consists of a small sign stating "This is Beacon Country" which is attached to and on the top of a large sign that states "See ten different models, Beacon Woods, Beacon Homes by Hoeldtke"; on the poles at the bottom of the signs is a third sign reading "P G A Golf-Restaurant- Shopping Turn Right." Sign Four: This sign has an expired 1972 permit tag attached to it. Sign Five: This sign has no current permit tag attached thereto. Sign Six: This sign has no current permit or 1974 tag attached thereto. The Respondent admitted that this sign was in violation of the outdoor advertising law. The Respondent disclaimed any interest in Sign One and the Petitioner moved to withdraw the charges. Sign Two is located on the state's right-of-way and is within the city limits of Weeki-Wachee. It was stipulated that the sign would be removed or relocated within 20 days from date of the hearing but the Respondent has not so notified the Hearing Officer of removal. The double faced sign marked as Sign Three was the subject of argument by both attorneys who requested to submit & memorandum of law as to whether the sign was in violation of Section 479.16(3). No memorandum of law has been received from either attorney although the 30 days allotted to submit said memorandum has expired. Signs marked Four and Five have no current permit tag attached thereto. The Respondent admitted that there was no current permit for Sign number Six and the sign was in violation. The parties agreed that the sign may not be eligible for a permit.
Recommendation Remove each of the subject signs designated; Sign Two, Three, Four, Five and Six. Invoke the penalties provided for by Section 479.18 to wit: "479.18 Penalties. - Any person, violating any provision of this chapter whether as principal, agent or employee, for which violation no other penalty is prescribed, shall be guilty of a misdemeanor of the second degree, punishable as provided in Sec. 775.083; and such person shall be guilty of a separate offense for each month during any portion of which any violation of this chapter is committed, continued or permitted. The existence of any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon." DONE AND ENTERED this 8th day of February, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Blvd. Winter Park, Florida 32790
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, 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 6th day of February, 2001.
