Findings Of Fact In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That: Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed. DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Covered in Findings of Fact 1, 3, 4 and 7. Incorporated in Findings of Fact 5 and 6. Incorporated in Findings of Fact 7 and 8. Incorporated in Findings of Fact 2 and 7. Rulings on Proposed Findings of Fact Submitted by Respondent Incorporated in Findings of Fact 1 and 2. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 5. Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 7. Paragraph 1 - approved. Paragraph 2 - approved. Paragraph 3 - approved. Approved. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Rejected as conjecture after the fact. Rejected. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue As to DOAH Case No. 99-4902T, whether the outdoor sign bearing permit AF330 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0398T, whether the outdoor sign bearing permit AF330 was illegally rebuilt. As to DOAH Case No. 99-4903T, whether the outdoor sign bearing permit BF075 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0397T, whether the outdoor sign bearing permit BF075 was illegally rebuilt.
Findings Of Fact Respondent 1/ is the owner of two outdoor advertising signs, both of which are located in Indian River County, Florida, adjacent to Interstate 95. Both signs were erected in 1971 pursuant to sign tag numbers AF330 and BF075, respectively. Sign A is located .49 miles south of milepost 153. Sign B is located .67 miles south of milepost 155. Section 479.01(14), Florida Statutes, defines the term "nonconforming sign" as follows: (14) "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. When the signs were erected in 1971, the area in which both signs are located was a part of unincorporated Indian River County. In 1990, the area in which both signs are located was annexed into the City of Fellsmere, Florida. Prior to the annexation, the area was zoned by Indian River County under the agricultural designation. That zoning designation has not been changed by the City of Fellsmere and the area remained zoned agricultural at the time of the final hearing. At all times relevant to this proceeding an outdoor advertising sign has not been an allowable use in an area zoned agricultural. There is an outdoor advertising sign less than 1,000 feet south of sign B, and there is an outdoor advertising sign less than 1,000 feet north of sign B. Both of these other signs are on the same side of the Interstate as sign B. When sign B was erected in 1971, the spacing requirements for signs along an Interstate Highway was 1000 feet, meaning that a proposed sign could not be within 1000 feet of an existing sign. Since 1984, Section 479.07(9)(a), Florida Statutes, has provided that outdoor advertising signs along an Interstate Highway must be at least 1500 feet apart. When initially constructed both sign A and sign B consisted of six wooden poles and wooden stringers. In October 1999, both sign A and sign B were destroyed by a hurricane. The hurricane knocked sign A completely down, the stringers were damaged, and all of the poles were snapped at ground level. Similarly, the hurricane knocked sign B completely down, the stringers were damaged, and four of the six poles were snapped at ground level. On October 29, 1999, Petitioner issued the Notices of Violation that serve as the basis for DOAH Case No. 99-4902T and DOAH Case No. 99-4903T. Both Notices alleged that the respective sign has been destroyed and may not be re-erected. 2/ Subsequent to the damage to sign A, Respondent erected another sign at the same location as that previously permitted for sign A. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag AF330 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0398T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed. Subsequent to the damage to sign B, Respondent erected another sign at the same location as that previously permitted for sign B. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag BF075 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0397T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order requiring the removal of each sign at issue in this proceeding. DONE AND ENTERED this 17th day of July, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2000.
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.
Recommendation It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. COPIES FURNISHED: Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58 Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Frank J. Seiz 4811 Palmetto Point Road Palmetto, FL 34221-9721 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Is the Notice of Violation against Respondent valid; and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On June 7, 2001, DOT issued Notice of Violation 10B ST 2001 412, against a billboard sign located adjacent to Interstate 95 (I-95), approximately 1.3 miles north of the intersection of I-95 and U.S. Highway 1 at Exit 92. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95 and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The sign is a "permanent" one and has never been permitted by DOT. Exit 94 has not applied to DOT for a sign permit for the subject sign or paid any sign permit fees for it. No sign permit has been issued to any entity for the sign. The sign displays the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." The phrases on the sign are displayed on two stacked faces without the slashes. The letters are all capitalized; the size of the letters and the paint colors of yellow and black call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The words "WE DARE TO BARE" and "EXIT 94" are in very large black type and cover most of the two faces of the sign. The phrases "CAFÉ EROTICA," "ADULT TOYS," "GREAT FOOD," and the abbreviation "INC.," are the phrases smallest in size, located at the very top left, middle right, middle left and bottom right of the sign. All the small phrases are in black type and are relatively inconspicuous compared with the rest of the sign. There are no addresses, telephone numbers, arrows, or other identifying information on the sign. Respondent, Cafe Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., is a Florida corporation. It was incorporated in 1998. At all times material, Café Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, president, shareholder, and director of Respondent. Mr. Sullivan chose the name of the company because the words and phrases "get your attention," are memorable, and are words and phrases Mr. Sullivan has used a lot over the years to advertise for the Café Erotica. Exit 94 does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94 is the development of hunting and fishing camps on various pieces of property it owns or leases in Florida and Georgia. Café Erotica of Florida, Inc., d/b/a Café Erotica (Café Erotica), is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica. Exit 94 leases the land where the sign is located from James Grady Wainright, the owner of the property. The rental property consists of approximately ten acres. The lease was signed on April 20, 2001. The annual rent is $3000.00 per year. Mr. Wainright has received all the rent for 2001 from Mr. Sullivan. Mr. Sullivan was reimbursed by Respondent shortly after he paid the rent to Mr. Wainright. The stated purpose of the lease is the construction and maintenance of a hunting and fishing camp. The lease also authorizes Exit 94 to erect advertising signs on the property, states that any such signs will remain the property of Exit 94, forbids Mr. Wainright from obstructing the highway view of such signs, and grants Exit 94 permission to remove any vegetation that may obstruct the view of such signs. Mr. Wainright originally contacted Mr. Sullivan about leasing the property because he was interested in obtaining income from having a sign on his property. However, his interest resulted in the current hunting and fishing camp lease. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR 207), at the intersection of SR 207 and the exit 94 off-ramp from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94. The real property owned by Exit 94, which is the subject of DOT's Notice of Violation, is approximately nine miles from the Café Erotica restaurant. Mr. Sullivan makes the advertising decisions for Café Erotica. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Until about two weeks before the hearing of this matter, Café Erotica maintained a billboard at the café that displayed the words "PRIVATE DANCES," "GREAT FOOD," and "ADULT TOYS." At the time of hearing the billboards at Café Erotica now include words disparaging of the Department. Café Erotica does not own any interest in the subject sign and no citizen testified that the sign had caused him/her to patronize Café Erotica. However, given the similarity of the corporate name of Exit 94 to advertising used by Café Erotica and the location of Café Erotica at Exit 94, it is likely that Respondent's corporate advertising could also be interpreted as intended for Café Erotica and therefore be of incidental benefit to Café Erotica. On the other hand, the sign is intended to advertise Exit 94's hunting and fishing camps. In short, Mr. Sullivan and his corporations receive a dual benefit from the sign at issue here. Exit 94 lists addresses and locations other than the subject property as its business address(es) for various purposes. Mr. Sullivan's and Exit 94's main business address and office is on SR 206 off Exit 93 on I-95. Exit 94 maintains no office or telephone on the subject property. Jerry Sullivan has directed all activity on the Exit 94 property. His son is a licensed hunting and fishing guide. Jerry Sullivan anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp with guide services, if desired, provided by his son. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Currently, Exit 94's only revenues have been payments from other companies owned by Mr. Sullivan or his wife for use of the hunting and fishing camps maintained by Exit 94. The company has operated at a loss since its inception. The loss is made up by Mr. Sullivan as is needed. There is no public access to the property Exit 94 leases from Mr. Wainright. The property is accessible by going through property owned by a timber company. The closest exit off I-95 to get to the property is Exit 92, where U.S. Highway 1 intersects with I-95. As of the hearing of this matter, Exit 94 was not operating a fishing camp open to the public on the property leased from Mr. Wainright. However, such a public enterprise is not required in order for Exit 94 to be a legitimate business. The parties do not dispute the fact that there is a pond on the subject property. The evidence varied as to the size and quality of the pond with the lower estimate by the Department at 1/2 to 3/4 of an acre and the higher estimate of two acres provided by the landowner. Respondent estimated the size of the pond to be slightly less than two acres. The pond was not stocked with fish, but did have some fish present. Respondent has ordered special hybrid bream to stock the pond for "catch and release" by Respondent's customers and guests. The property was not stocked with game animals, although such stocks would not be necessary for hunting since wild game including turkey, boars, and ducks are already present. There was also one very ramshackle deer blind on the property. There were no public restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. A small trailer was located on the premises. The trailer was placed there and is owned by Mr. Wainright. It is unknown if the trailer is available for overnight lodging. However, the trailer is not necessary for the property to function as an overnight camp and no witness testified to having camped overnight on the subject property. Petitioner routinely distributes corn for seeding the woods for deer and other game. Given the location of the subject property, game attraction is certainly feasible. Bill Harry showed DOT personnel around the subject property. The Department's witness, Tom Simmons, was generally critical of the quality of the hunting and fishing facilities. While there were no people using the pond during his brief inspection, Mr. Simmons has no personal knowledge as to whether people actually hunted or fished on the property at any other time. The Department's representative acknowledged that he saw feed corn scattered on the property for use in luring wildlife to the premises. Exit 94 holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the county accepted Exit 94's designation of its business. Exit 94 has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94 produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Exit 94 is a legitimate business. It is in the business of providing and developing hunting and fishing camps for use as directed by Exit 94. No reason was demonstrated to pierce the corporate veil of Exit 94. The sign located on the property at issue here only and primarily contains the name of the corporation and is exempt from the general sign permitting requirements. Therefore, the Notice of Violation should be dismissed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact The Department issued permit number AM146-10 to the Respondent, Melweb Signs, Inc., on May 2, 1984. This permit authorized the erection of an outdoor advertising sign on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County. A sign was erected pursuant to this permit. The Respondent's application for the subject permit represented that the sign site applied for was in an area that was zoned commercial or industrial. The Respondent's manager had inquired of county representatives what the zoning was at the sign site, and was informed that the area was zoned commercial. The Respondent's manager also had a map that showed the area to be zoned commercial or industrial, but this map was not a zoning map. It had been issued by a local canal district. When the Respondent's application was filed, the Department's inspector had been shown the map the Respondent's manager had, and when the inspector inquired of the county what the zoning was, she was informed that the area was zoned commercial or industrial. In reliance on the Respondent's map and on the information received from the county, as well as on the Respondent's application, the permit was approved. The Respondent had certified on its application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Subsequently, the correct zoning for the subject site was brought to the attention of the Department's inspector. The Respondent agrees that the area is actually zoned agricultural (A-I) not commercial or industrial. Thus, the Department issued its notice of intent to revoke the Respondent's permit on April 11, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AM146-10 held by the Respondent, Melweb Signs, Inc., be revoked, and that the sign erected by the Respondent on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County, be removed. THIS RECOMMENDED ORDER entered this 10th day of December, 1985 in Tallahassee, Leon County, Florida. Hearings Hearings 1985. WILLIAM B. THOMAS 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 10th day of December, APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1746T Respondent's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Accepted. Nevertheless, none of the Respondent's proposed findings address the provisions of Section 479.08, Florida Statutes, authorizing permit revocation when "the permittee has violated any of the provisions of this chapter." COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Jones & Scully Aloha Foliage Growers, maintained the sign at issue. On September 6, 1989, the sign was located on the southbound, west side of Krome Avenue, 56 feet south of Southwest 168th Street in unincorporated Dade County, Florida, and approximately 25 feet from the outside edge of the right- of-way of Krome Avenue. The portion of Krome Avenue at which the sign was located is within the federal-aid primary highway system. The sign was clearly visible from the roadway. However, the sign did not have a permit from Petitioner, Department of Transportation, to be located along Krome Avenue, and Petitioner placed a notice on the sign that it was illegal. The sign was displayed on a rolling, four-wheel, flat-bed trailer, and its location was changed every twenty-four hours. The message on the sign was tastefully presented and indicated that Jones & Scully Orchids were located one mile away from the placement of the sign. At the same intersection and along Krome Avenue other advertising signs appeared. Some indicated the presence of agricultural products for sale and others announced cafeteria trucks which were peddling their wares. Respondent asserted, at the hearing, that these signs may be in violation of the permitting requirement but that the signs had not been cited by the Petitioner. However, no proof was demonstrated that these signs were cited as illegal by Petitioner, or if they were in violation of existent law. Respondent operates a worldwide mail order business featuring orchids. Many of its customers seek out the source of the plants. At some time in the past, Respondent had a permanent sign at the location of the business but was required to remove it due to some easement problems. As a result, Respondent suffered an adverse impact on its business, but since the sign at issue has been in operation, the frequency of visits from its customers had increased. The presence of street signs at the corner of Krome Avenue and 168th Street is poor or inconsistent. Local government in Dade County has jurisdiction over the placement of street signs at the intersection. As a merchant in the area, Respondent has attempted to compensate for the lack of street signs by displaying its own directional indicator. Although Respondent's business may suffer from the lack of an advertising or a directional sign, and although the intersection may be poorly indicated, Petitioner's sign is impermissible at the location cited. It rests within 660 feet of the nearest edge of the right-of-way of a federal-aid primary highway and is maintained on a federal-aid primary highway without a permit from Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing that the subject sign is in violation of Sections 479.07 and 479.11(1) and requiring the removal of the sign. DONE and ENTERED this 19th day of December, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5050T Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraphs 1,2,3 and s. Adopted in paragraph 4. Subordinate to the result reached. Respondent's proposed findings of fact are addressed as follows: Irrelevant. Addressed, in part, in paragraphs 5, and 6; in part, irrelevant, Addressed in paragraphs 5 and 7. Addressed in Paragraphs 6, 7, 8 and 9. In part, subordinate to the result reached; in part, irrelevant. Irrelevant. COPIES FURNISHED: Rivers Buford, Jr., Esquire Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert Scully, pro se President The Scully Group, Inc. Jones & Scully Aloha Foliage Growers 18955 Southwest 168th Street Miami, Florida 33187-1112 Ben G. Watts, P.E., Interim Secretary Florida Department of Transportation Haydon Burns Building, 605 Suwannee Street Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, MS 58 Thomas H. Bateman, III General Counsel Florida Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this sign permit dispute, Petitioner, Department of Transportation (DOT), seeks to revoke the permit for an off- premise outdoor advertising sign owned by Respondent, North Florida Pecan 1 & 2, Inc. (Respondent), on the grounds that the original sign was destroyed by a fire in June 1998, the newly rebuilt sign has lost its nonconforming status, and any rebuilt sign is now illegal. In response to these charges, Respondent contends that the fire that destroyed the sign was an act of criminal mischief or arson, rather than an Act of God, and thus the sign still qualifies for a nonconforming status. The sign in question is located 12.2 miles north of the Flagler County line on the west side of Interstate 95 (I-95) facing south, and is perhaps a mile or so south of the intersection of State Road 207 and I-95 (intersection) in St. Johns County, Florida. Respondent does not own the property where the sign is located, and it conducts no other business activities on that property. The property on which the sign is located is zoned Open Rural by St. Johns County (County), and it is not designated predominately for commercial or industrial uses by the County under the County's future land use map, comprehensive plan, or zoning ordinances. The sign is used to advertise Respondent's combination gas station and "open-area fruit market" located "just off" the intersection. The parties have stipulated that the sign was originally constructed more than 20 years ago before the current sign regulations became effective; under the present law, it would be a nonconforming sign and illegal. On May 27, 1998, a thunderstorm occurred in St. Johns County, resulting in between one-quarter and one-half inch of rainfall in the area. Due to a lightning strike on a tree, a 2-acre fire started approximately 1,000 feet southwest of the intersection in the vicinity of the sign. Although firefighters believed they had "knocked out" the fire within a day or two, the fire continued to smoulder under the dampened top layer of organic matter for several weeks until June 15, 1998, when it "worked its way back to the surface," broke out again, and cleared the containment line of the earlier fire. Aided by a light wind from the southeast and extremely dry conditions, the fire quickly spread eastward at the rate of 1,000 to 1,500 feet every 15 minutes and consumed several hundred acres, including the land on which Respondent's sign was located, before it was brought under control. That fire is commonly referred to as the Fort Peyton fire. In determining the cause of the Fort Peyton fire, forestry officials could not find any indicators of arson, and visual burn patterns clearly indicated that the new fire's origin was where the May 27 fire had begun. Therefore, it was officially classified as a "rekindle or breakout" of the May 27 fire, which was started by lightning. Put another way, the fire was the result of an Act of God, which is "the sudden manifestation and forces of nature." On either May 30 or June 5, 1998, depending on whether court or forestry records are accepted as being the most accurate, a fire began in Flagler Estates, which, "as the crow flies," lies approximately 12 to 15 miles southeast of the Fort Peyton fire. The Flagler Estates fire, however, was the result of an unattended illegal burn which was started by three individuals and went out of control. The fire was brought under control the same evening by firefighters, but only after some 450 surrounding acres were destroyed. The three individuals were later charged with arson. Respondent established that the prevailing winds during May and June 1998 were from the southeast and that "spoilers" or "floaters" (hot debris) from existing fires can sometimes float in the air and ignite new fires several miles away. Indeed, Respondent's investigator observed spoilers from inland fires floating through the air some 8 or 9 miles out in the Atlantic Ocean while he was fishing during that period of time. Accordingly, Respondent contends that it is just as likely that a spoiler floated northeastward from the Flagler Estates fire on May 30, 1998, and ignited the Fort Peyton blaze, some 12 to 15 miles away. If this theory is accepted, it would mean that the Fort Peyton fire would be attributable to arson, and not to an Act of God. The foregoing assumption has been rejected for several reasons. First, spoilers from the Flagler Estates fire did in fact ignite several spot fires in the area, but all of these spot fires occurred on the same day as the fire started and were within an eighth of an mile from the Flagler Estates perimeter. Second, it is highly unlikely that a spoiler would float up to 15 miles and then lie dormant for two weeks before igniting the Fort Peyton fire. Finally, the theory goes counter to the more persuasive evidence given by the supervising forester who investigated the Fort Peyton fire and concluded that it was an outbreak of the earlier fire that was started on May 27, 1998. After the sign was destroyed, Respondent rebuilt the sign at the same location using substantially the same materials that had composed the sign before it burned. However, the materials used to rebuild the sign were not part of the sign structure which was burned in the Fort Peyton fire. The new sign is the same size, shape, and height of the destroyed sign.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by North Florida Pecan 1 & 2, Inc., under sign permit number BR 252-55 is illegal and must be removed. The permit should also be revoked. DONE AND ENTERED this 17th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 day 17th of March, 2000. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 J. Stephen Alexander, Esquire 19 Old Mission Avenue St. Augustine, Florida 32084 Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2009.
