Findings Of Fact The outdoor advertising sign which is the subject of these proceedings is located on U.S. 1 (State Road 5) approximately 1,029 feet north of Summerland Road in North Key Largo. The outdoor advertising sign is owned and maintained by the Respondent and is visible from the main traveled way of the adjacent roadway. The Respondent purchased the sign from the Daly Outdoor Advertising Company in 1984. The sign consist percents of a ten feet by forty feet plywood sign face supported ]by five four inch by six inch poles which serve as uprights. In addition, the sign has 5 stringers (wooden planks placed in a cross-type fashion on the upright poles to hold the sign face in place). The parties stipulated that the sign, in place prior to 1971, was a "nonconforming sign" as defined by Rule 14- 10.07, Florida Administrative Code. The sign permit number is AK-332-10. In November of 1985, Hurricane Kate traveled through the Keys and damaged the sign. On December 4, 1985, Mr. William Kenney, District VI Outdoor Advertising Administrator, passed the site of the sign and noticed that the face of the structure was blown over In the water. Because the sign was surrounded by water and mud, Mr. Kenney observed the sign from approximately 30 feet away. Although the sign was blown over into the water, the face was intact. The poles which were used to hold the sign face snapped. On December 10, 1985, the Respondent purchased 5 used telephone poles at a cost of $50.00 each and repaired the damaged sign. The poles were used as uprights to support the sign face. On January 8, 1986, Mr. Kenney walked over to the sign and inspected it. In Mr. Kenney's opinion, the replaced upright poles appeared to be longer than the old ones, the stringers appeared to be made out of new wood and the plywood used on the face of the structure appeared to be new. The overall size of the repaired structure appeared to be the same size that it was before being damaged by the hurricane. The sign is located at exactly the same location as it was prior to being blown down. It is standard practice in the outdoor advertising industry for a company to exchange, refinish and replace faces of outdoor advertising signs on a routine basis. By letter dated January 14, 1986, the Petitioner advised Respondent that its sign permit number AK-332-10 was no longer valid and by notice to show cause dated February 14, 1986, the Petitioner advised Respondent that the repaired sign had no valid permit and was illegal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED: That a final order be issued declaring that sign permit AK-332-10 remains valid and dismissing the notice of violation and notice to show cause. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0575T & 86-0966T (consolidated) The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to these cases. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 5. Addressed in Conclusions of Law section. Adopted in Finding of Fact 2. Rejected as subordinate. Rejected as subordinate. Partially adopted in Finding of Fact 3. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Addressed in Conclusions of Law section. Rejected as subordinate and/or not supported by competent substantial evidence. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 9. Adopted in substance in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as argument and/or contrary to the weight of the evidence. Rulings of Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 8. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 6. Rejected as a recitation of testimony. Adopted in substance in Findings of Fact 6 and 9. Adopted in Finding of Fact 10. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 11. Rejected as a recitation of testimony. COPIES FURNISHED: Charles G. Gardner, Esquire -Department of Transportation -Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Charles C. Papy, III, Esquire 201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134 Thomas Drawdy, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
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 controversy, Petitioner, Department of Transportation (DOT), seeks to revoke a permit (No. BP844) for an off-premise outdoor advertising sign owned by Respondent, National Advertising Company (Respondent), an entity now known as "Infinity Outdoor," on the grounds that the original sign was destroyed by a hurricane in October 1999, the sign has lost its nonconforming status, and Respondent cannot lawfully rebuild the structure. In response to these charges, Respondent contends that after the sign was damaged, unknown persons stole the damaged structural pieces that were going to be used in part to rebuild the sign. Under a theory first disclosed at hearing, Respondent went on to contend that if those materials were still available, it could qualify for a seldom, if ever, used exception found in Rule 14-10.007(1)(d), Florida Administrative Code, which would otherwise allow it to reconstruct the sign. That rule provides in part that a sign will not be considered destroyed if the owner can demonstrate that "the replacement material costs to reerect the sign would not exceed [fifty percent] of the value of the structural materials in the sign, immediately prior to destruction." Using that provision, Respondent argues that much of the sign's structure could have been rebuilt with the now- stolen materials, and the remaining "replacement material costs" would not exceed the threshold in the rule. The sign was erected in 1968 before spacing requirements for signs were first adopted in 1972; therefore, unless it is destroyed, the sign can continue to qualify for nonconforming status as long as it remains substantially the same as it was as of the date it became nonconforming. Because the sign is situated on U.S. Highway 1 in Brevard County, a federal-aid primary highway, and another permitted sign lies approximately 200 feet away, under current spacing requirements, a sign cannot be rebuilt on the same site. This is because current spacing requirements prohibit two signs from being closer than 1,000 feet apart on a federal-aid primary roadway. The sign in question is located adjacent to U.S. Highway 1, 0.341 miles north of Florida Memorial Gardens in Brevard County, Florida. In October 1999, Hurricane Irene tracked northward along the eastern coast of Florida causing extensive wind damage, including substantial damage to Respondent's sign. Photographs received in evidence as Petitioner's Composite Exhibit 3 show the condition of the sign on October 26, 1999, or shortly after it was damaged by the hurricane. Among other things, two of the five support poles (which were buried to a depth of eight feet) were "splintered" approximately two to three feet above ground level, while the other three were "knocked over" and "broken" at ground level. The wooden facing of the sign "had been knocked up against a pine tree" and the wooden plywood "panels [on which the sign message is printed] were split." The "stringers," whose numbers were variously described in the record as nine and sixteen, and which measure 2 x 4 x 20 feet and support the backside of the structure between the poles, were also damaged. The condition of the sign is corroborated by similar photographs taken on October 18 and 22, 1999, by a code enforcement officer of Brevard County. In the judgment of the DOT inspector who visited the site shortly after the hurricane, none of the damaged structural materials (poles and stringers) could be reused due to the amount of damage caused by the hurricane's winds. However, the inspector was unable to assign a replacement cost for any of those structural materials, or the replacement value of the sign immediately prior to its destruction. On an unknown date, but after the photographs were taken by DOT on October 26, 1999, Respondent's operations manager, Billy Nichols (Nichols), instructed a subcontracting crew to inspect each of the company's signs and to drop off at each sign location "what they thought we may have needed" to repair the signs. After inspecting the sign in question, the crew deposited five brand new poles at the site. Respondent takes the position that it always intended to use a combination of old and new materials, rather than all new materials, to repair the damaged sign. The date on which this decision was made by Respondent is not apparent in the record. In addition, despite a lack of clarity in the record, in its post-hearing filing, Respondent represents that the new poles were deposited at the site before the damaged materials were removed. However, it can be reasonably inferred from the evidence that based on the subcontractor's actions, Respondent originally intended to replace virtually the entire structure since five new poles were dropped off at the site of the sign; after a Citation was issued, Respondent apparently decided to reerect the sign under the theory proposed at hearing. Sometime after November 8, 1999, when DOT issued its Citation, Respondent maintains that much of the debris from the site, including the damaged poles and stringers, was unlawfully removed by unknown persons, resulting in Respondent being forced to rebuild the sign with all new materials. The new poles, however, were not removed and remained at the site. Because of the Citation, no work has occurred pending the outcome of this proceeding. In applying the terms of the rule relied upon by Respondent, DOT ascertains the cost of the sign and the replacement materials by utilizing cost data from retail stores, such as Home Depot or Lowe's, on a date as close to the date of destruction as is possible. In this case, that date would fall in September or October 1999. In addition, even if a sign owner decides to repair his sign with used or recycled materials, those materials would still be valued as if they were new. Further, only items such as supporting braces (stringers) or members of the sign structure (support poles) qualify as structural materials. This means that the sign facing would not be considered a structural component within the meaning of the rule. Finally, any old materials from the original sign that were reused would not be a part of the overall cost. Apart from the cost issue, in reconstructing the sign, the owner must return the sign to substantially the same configuration as before the damage. Thus, any change in the height or width of the sign facing, the number of feet that the sign sits above the ground, the structural safety of the sign, or the size of the replacement materials, might constitute a substantial change and prohibit reerection. In the case at bar, the testimony establishes that if Respondent proposes to change the height of the sign, the type of structural materials used, or the number of support poles, this would constitute a substantial change in the sign and disqualify Respondent from utilizing the exception in the rule. Although the rule does not specifically require such information, to prove that materials were stolen by unknown persons, historically DOT has required that the owner submit a police report confirming that materials were stolen. In this case, no police report was ever filed by Respondent, nor did it file a claim with its insurance company for the value of the materials allegedly stolen. Respondent submitted cost data from three local "supplier[s]" confirming that the value of the structural components of the sign just prior to its being damaged was not greater than $1202.00. This figure was derived by taking the cost of five new poles at $202.00 per pole, or $1010.00, and sixteen new stringers at a cost of $12.00 per stringer, or $192.00. Respondent's suggestion that the cost of plywood for the new sign facing ($636.00) should also be counted as a structural material has been rejected since that component does not qualify as such a material under the rule. Respondent's operation supervisor (Nichols) offered two alternatives for repairing the sign. First, he suggested that by lowering the structure below its previous height, he could reerect the sign using only two new poles. This alternative, however, would substantially change the sign's configuration and violate the terms of the rule. Second, in order to keep the sign at its original height, Nichols stated that he would purchase three new poles and "stub" two of the damaged poles by adding two more stringers. The second option would cost only $630.00, but under this alternative, the value of the replacement materials would exceed fifty percent of the cost of the structure ($1202.00) just prior to the sign being damaged. Then, too, the record shows that by making this type of repair, the sign facing would be weaker, making it less safe; its wind load would be changed; and the sign height would be lower. Thus, these modifications would constitute a substantial change.
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 National Advertising Company under Permit No. BP844 has been destroyed, is nonconforming, and cannot be reerected. The permit should also be revoked. DONE AND ENTERED this 12th day of May, 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 12th of May, 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 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact Emerald applied for an outdoor advertising sign permit for a location approximately 778 feet west of the location for which a permit had previously been issued to Lamar. If the permit previously issued to Lamar were not in spatial conflict with the permit site sought to be used by the Petitioner, the Petitioner's permit could be granted. The Petitioner's proposed site, however, is in statutorily prohibited proximity to Lamar's site, if Lamar's permit is deemed valid. The Department denied Emerald's application because its proposed application was, in the view of the Department, in spacing conflict with the site related to Lamar's permit. The controversy at issue relates to a parcel of land in Destin, Florida, owned by members of the family of Kathleen Jones. Herman Jones owned a portion of the property, and Mildred Castro owned a portion of the property. Kathleen Jones held a life estate to Mildred Castro's portion of the property. Permits were issued to Lamar on June 25, 1981 for a sign at the Jones/Castro site. The sign was erected in August of 1981 and was supported by leases of the real estate involved between Lamar and the Joneses. That sign was maintained continuously until May of 1992. Herman Jones sold his portion of the property in 1992 to Frank J. Roberts and Destin Renaissance, Inc. A survey in conjunction with that sale revealed that the sign was partially on the parcel sold to Roberts and partially on the parcel retained by the Jones family. Lamar, accordingly, moved its sign, since it encroached on the Roberts parcel and executed a release of its lease as to the real estate which Herman Jones had sold to Roberts. Ever since the 1981 erection of the sign, the lease for the site had been between Lamar and Kathleen Jones. It was a written lease and provided for annual renewals. The annual lease payment had been increased in 1985 and again in 1987. On July 27, 1990, the lease was again re-written to increase the annual rental payment. On March 11, 1992, Mr. Roberts sent a letter to the Department's Chipley office stating that he and his corporation had purchased the property from Herman Jones and that he did not have a lease with Lamar. Acting upon that letter, the Department sent a letter to Lamar on April 6, 1993 which stated: This office has received information to the effect that you no longer have permission from the land owner to erect or maintain signs on the South side of US 98, 6.3 miles East of SR 85. The permits numbers are AE678-06 and AE679-06. If, in fact, this information is true and correct the permits issued for these sites are invalid pursuant to Section 479.07(7) Florida Statutes. You are hereby notified that the Department's determination of invalidity will become con- clusive and the subject permit(s) will be revoked unless you elect to challenge this action by requesting an Administrative Hearing pursuant to Section 120.57, Florida Statutes, within thirty (30) days from receipt of this letter. The request should be addressed to: Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 In the interim, if you can furnish documentary evidence of current permission from the present property owner to refute this information, it may be possible to resolve this matter to mutual satisfaction. Lamar replied to that letter on April 15, 1993 stating: We do have landowner permission for the referenced site as evidenced by our recorded lease of 8/07/90 and our amended lease for the same site dated 12/16/92. In addition the referenced tags were replaced by tags BG796-35 and BG797-35 on 2/15/93. This should be substantial evidence to refute any claim that we do not have landowner permission. Please indicate to me in writing the effect this will have on the need for an administrative hearing. In conjunction with the submittal of that letter of April 15, 1993, Lamar submitted a copy of its recorded lease with Herman Jones dated August 7, 1990 and a copy of its lease with Kathleen Jones dated December 16, 1992. Upon receipt of those documents, the Department concluded that Lamar did have written permission from the landowner to erect a sign at a location for which the permits described in paragraph three above were issued. The Department took no further action to revoke Lamar's permit, and Lamar, therefore, did not apply for an administrative hearing. The Department rejected Emerald's application by letter dated February 9, 1993, and Emerald requested an administrative hearing to contest that initial decision. The rejection of Emerald's permit application was due to the fact that the proposed permit was located less than 1,000 feet (778 feet) from Lamar's permit location. The Department took the position that Lamar's permits were still valid because it had provided satisfactory evidence to the Department that it still had landowner permission for the subject Lamar sign, by presenting a valid lease for the property in question, the Jones/Castro parcel.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that the applications of Emerald Outdoor Advertising, Inc. for outdoor advertising permits in Destin, Florida, be denied. DONE AND ENTERED this 1st day of February, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2668T Petitioner's Proposed Findings of Fact Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and as constituting a conclusion of law instead of a proposed finding of fact. Respondent Department's Findings of Fact The Respondent, Department of Transportation, adopts the proposed findings of fact submitted by the Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc. Thus, those proposed findings of fact are accepted. Proposed finding of fact number nine submitted by the Department, in addition to those submitted by Lamar, is rejected as being unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent Lamar's Proposed Findings of Fact The Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc.'s proposed findings of fact are accepted in their entirety as are the facts stipulated to by the parties. COPIES FURNISHED: Martin B. Daniel, Esq. 47 North Third Street Memphis, TN 38103 Robert P. Gaines, Esq. BEGGS & LANE Post Office Box 12950 Pensacola, FL 32576 Paul Sexton, Esq. Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The three major issues for consideration in this hearing are whether the sign structure in issue has been moved or removed from the location for which it was permitted and improperly re- erected; whether the sign in issue is being operated and maintained without the required proper state permits; and whether the sign in issue is a conforming or nonconforming structure.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Department of Transportation (Department), was the state agency responsible for the permitting and regulation of advertising signs adjacent to federal-aid primary highways in Florida. Respondent, National Advertising Company, now known as Infinity Outdoor (Infinity), is the owner and operator of the outdoor advertising sign in issue here, which is located near the corner of Hudson Lane and North Dale Mabry Highway in Tampa, Hillsborough County, Florida. The two back-to-back faces of the 1levated sign bear Department permit numbers AF461 and AF462. The sign structure was erected in 1981. It was originally permitted to be located in the south 50 feet of the lot on which it is located, but when erected, was not placed at the permitted site but at a site 17 feet from the north property line of the parcel. The lot on which the sign is erected runs 186.80 feet from north to south along the western lot line. Sometime after being erected, in order to accommodate the replacement of underground storage tanks on the property, and without applying to the Department for a permit to do so, the sign was moved from its then location to the location where it currently stands. To effect the move, the mast upon which the signs are located was cut off near ground level and, through the use of a crane, the entire superstructure, including mast and sign facings, was moved to the current site approximately nine- and-one-half feet to the northwest of the former site. The faces of the sign structure are facing the same way as they did before the move, and are in substantially the same air space. The procedure followed in the movement of this sign structure is consistent with that generally followed and approved by the Department. This change in location resulted in the sign being erected at least 100 feet north of the permitted location in the southern 50 feet of the parcel. It was actually located adjacent to and within 660 feet of the right-of-way of Dale Mabry Highway, a federal-aid primary highway. At the time the sign was erected, existing regulations relating to signs located adjacent to federal-aid primary highways required a minimum of 500 feet spacing between signs. The Department contends that when the sign was constructed in 1981, it did not meet the required 500 foot spacing from the then existing sign to the north. Department records from 1983 show that at the time the instant sign was erected, Infinity's permit application called for it to be erected in the south 50 feet of the property, which would have placed it more than 500 feet from the existing Foster and Kleiser sign to the north. However, the sign was not erected in the south 50 feet of the property but near the north property line, and that location resulted in less than 500 feet separating the subject sign structure and the Foster and Kleiser sign to the north. The Foster and Kleiser sign had not been permitted and was an illegal sign, however. The Department claims that Infinity erected its sign on the northern portion of the property knowing the Foster and Kleiser sign was up, and that Infinity therefore knew that it did not meet spacing requirements. At the time the sign was originally erected, a representative of Infinity wrote to the Department indicating a need to actually erect the sign 150 feet north of the site listed on the permit. No evidence was produced either by Infinity or the Department to indicate whether the request to move the erection site was approved. The permit calls for erection in the southern 50 feet, and when Infinity registered the sign with Hillsborough County in 1984, it cited the location as being in the south 50 feet of the property. Department records from the same period indicate there was no sign within 500 feet to the south at the time the sign in issue was erected. A sign was subsequently erected 497 feet to the south of the instant sign. At the present time it is 505 feet from the closest sign to the south.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order revoking sign permit numbers AF461 and AF462, and requiring removal of the signs which are located at the corner of North Dale Mabry Highway and Hudson Lane within 30 days of the date of the Final Order. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 28th day of July, 2000. COPIES FURNISHED: Jodi B. Jennings, Esquire Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Gerald S. Livingston, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether the Department of Transportation (“Department”) properly issued a Notice of Denied Outdoor Advertising Permit Application for the eastward face of the Monument Sign owned by Kathryn Hogan Pereda and Margaret Hogan Marker, d/b/a/ HFT Advertising (“Petitioner” or “HFT”).
Findings Of Fact In 1979, Petitioner’s family acquired the property at 2930 Southwest 30th Avenue, Pembroke Park, Florida. The family’s parcel is part of a subdivision of several smaller parcels, which houses a number of different businesses. Subsequently, Petitioner’s grandparents purchased the sign parcel, which was conveyed to Petitioner in 1989. The original sign on the sign parcel was the Coral Base Sign (“Coral Base Sign”). The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 660 feet of, and visible from, interstate highways. In approximately 1991, Petitioner replaced the Coral Base Sign. HFT retained a contractor to construct the new sign (“Marquee Sign”). HFT made sign space available to other Southwest 30th Avenue businesses on the Marquee Sign. The Marquee Sign was built as a free-standing sign that was 10 feet wide and 15 feet high and was permitted through the Town of Pembroke Park. When the contractor built the Marquee Sign, he did not remove the footings from the original Coral Base Sign to build the new sign. Instead, footings for the new sign were placed immediately contiguous to the Coral Base Sign footings on the CSX railroad property. In 1994, HFT went back before the Town of Pembroke Park and obtained approval through a variance proceeding for a permit to add another section to the Marquee Sign and made it with two faces 15 feet high and 20 feet wide. The expansion allowed more businesses in the subdivision to advertise. In 2010, the Department notified Petitioner that the Marquee Sign was located within the Department’s right-of-way. By letter dated May 28, 2010, the Department informed Petitioner “per Florida Statutes, signs are prohibited to be within the right-of-way and will need to be relocated onto property owned by Margaret Claire Hogan and Kathryn Anne Hogan.” Petitioner believed the Marquee Sign was on their family’s sign parcel but found out after a survey that the sign was not on their property but on the right-of-way. In 2011, Petitioner complied with the Department’s request to relocate the sign. HFT obtained another permit from the Town of Pembroke Park and removed the Marquee Sign from the Department’s right-of-way. Petitioner spent approximately $50,000.00 permitting, designing, and erecting the current HFT Monument Sign (“Monument Sign”) back in the location east of the sign parcel where the Coral Base Sign had stood originally. The only viable use of the parcel on which the Monument Sign is located is the operation and maintenance of the Monument Sign. Space on the Monument Sign is leased by Petitioner to the owners/operators of the Southwest 30th Avenue businesses for the purpose of identifying the location of their respective businesses to their customers and potential customers. The Monument Sign does not identify any businesses other than the Southwest 30th Avenue businesses. The Monument Sign is located within the controlled area of both Hallandale Beach Boulevard and I-95. I-95 is part of the interstate highway system. The eastward face of the Monument Sign is visible from the main-traveled way of I-95. A Clear Channel Sign is on the same side of I-95 as the Monument Sign. The Clear Channel Sign was permitted by the Department in 1984. It is located approximately 250 feet to the south of the Monument Sign. On August 2, 2013, Mark Johnson (“Johnson”), a Regional Outdoor Advertising Inspector with the Department, performed an inspection of the Monument Sign and determined that it is an illegal and unpermitted sign. Johnson posted a Notice of Violation on the Monument Sign stating the sign was in violation of the permitting requirements of section 479.07, Florida Statutes (2015). On August 5, 2013, the Department issued four Notices of Violation-Illegally Erected Sign to the Town of Pembroke Park and the four businesses advertised on the Monument Sign. The Notices of Violation apprised the owners that the Monument Sign was in violation of section 479.105 and that within 30 days the sign either needed to be removed or an outdoor advertising permit application needed to be filed with the Department. Administrative hearing rights and permit application instructions were also made available in the Notices of Violation. However, no request for an administrative hearing was received by the Department. On September 4, 2013, HFT submitted two outdoor advertising permit applications numbers 59865 and 59866 for the eastward and westward faces of the Monument Sign, which was erected in 2011. On September 6, 2013, the Department returned HFT’s applications as incomplete. On October 15, 2013, HFT submitted two outdoor advertising permit applications numbers 60016 and 60017 for the eastward and westward faces of the Monument Sign. On November 12, 2013, the Department denied Petitioner’s applications for permit. The Notice of Denied Outdoor Advertising Permit Application provided the following basis for denial: Sign does not meet spacing requirements (1500’ for interstates, 1000” for FAP). In conflict with permitted sign(s), tag#(s): CG242/243. Held by: Clear Channel Outdoor- South Florida Division. [s. 479.07(9)(a), 1.,& 2, FS] On December 17, 2013, HFT timely filed a Request for Formal Administrative Hearing contesting the Department’s exercise of permitting jurisdiction and the denial notice. HFT does not dispute that: (i) I-95 is an interstate highway within the Department’s permitting jurisdiction; (ii) the HFT Monument Sign is within 660 feet of the nearest edge of I-95; or (iii) the HFT Monument Sign is located within 1500 feet of another permitted sign on the same side of I-95. On January 6, 2014, the Department determined the westward face of the Monument Sign was not visible from I-95 and met the spacing requirement for Hallandale Beach Boulevard. The Department issued permit number 56688 for the westward face of the Monument Sign but did not permit the eastward face.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order upholding Petitioner HFT’s Notice of Denied Outdoor Advertising Permit Application for the eastward face of the Monument Sign. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 14th day of September, 2015.
The Issue Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact The City of Clearwater Land Development Coded as it applies to this case, was adopted and took effect on August 29, 1965. Petitioner owns and manages Belleair Cove Shopping Center located at 1451 U.S. 19 South, in the City of Clearwater. In mid-October, 1965, Petitioner replaced a panel in the shopping center's pole sign to identify a new tenant, Broyhill Furniture Rentals, at a cost of approximately $2500. Several months later in early 1986, Petitioner was notified by Respondent that sign "alterations" are governed by the terms of the Land Development Coded and that the replacement of panels in an existing sign was an "alteration" which would require a variance if the existing pole sign did not conform to Code provisions. On or about March 6, 1986, Petitioner applied for a variance since its existing pole sign with the Broyhill panel did not conform to the provisions of the Land Development Code. Petitioner applied for a variance of 188 square feet to permit a 300 square foot sign; and of 12 feet to permit a 32 foot high pole sign at 1451 U.S. 19 South. The property is zoned "CH", highway commercial. The Land Development Code permits shopping centers, to have one pole sign to identify the shopping center, but it cannot exceed 112 square feet, and 20 feet in height without a variance. Nonconforming signs which were existing on the effective date of the Land Development Coded such as Petitioner's may remain for a period of seven years, but must be brought into conformance either at the end of that seven year periods or whenever they are altered or otherwise changed within this seven year period. On March 27, 1986, the Development Code Adjustment Board denied Petitioner's application for variance, and Petitioner timely filed this appeal. There is no dispute that the only alteration made by Petitioner in its sign was the replacement of one panel. Petitioner's property manager, William Dufrechou testified that shopping centers such as the one in this case experience a 15 percent turnover in tenants per year. According to the terms of its lease with its tenants, Petitioner is required to place the tenant's business sign on the shopping center pole sign. Tom Webber an installer of business signs who erected Petitioner's pole sign in December, 1963 testified that changing panels in such pole signs is a routine matter, and a common activity for those who work on shopping center signs. He also stated that it would be impossible to modify Petitioner's pole sign to bring it into conformance with Code provisions as to height and square footage. Webber testified that this sign would have to be removed and replaced to meet Code provisions. This testimony was unrefuted.
Recommendation Based upon the foregoing, it is concluded that Petitioner has met the criteria for the granting of a variance in this case, and therefore it is ORDERED that the March 27, 1966 decision of the Development Code Adjustment Board is hereby REVERSED, and Petitioners' application for variance is GRANTED. DONE and ORDERED this 2nd day of October, 1986, at Tallahassee, Florida. Hearings Hearings DONALD D. CONN 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 2nd day of October, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1473C Rulings on the City of Clearwater's Proposed Findings of Fact. Adopted in Finding of Fact 2, 4. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 1, 2, and 3. Adopted in Finding of Fact 2. 6-8. Rejected since these paragraphs set forth conclusions of law rather than findings of fact. 9. Rejected as not based on competent substantial evidence requested and otherwise irrelevant to the variances herein. 10-19. Rejected since these paragraphs set forth conclusions of law rather than findings of fact. Rulings on Belleair Associates' Proposed Findings of Fact. 1-2. Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. 6-7. Rejected as irrelevant. Adopted in Finding of Fact 1. Rejected as a conclusion of law rather than a finding of fact. Rejected as irrelevant. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. 13-16. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 6. Adopted in part in Findings of Fact 2 through 6, but otherwise rejected as cumulative and unnecessary. COPIES FURNISHED: Rhea F. Lawn, Esquire 501 East Kennedy Boulevard Tampa, Florida 33602 Miles Lancer, Assistant City Attorney Post Office Box 4740 Clearwater, Florida 33510 Cynthia Goudeau, City Clerk Post Office Box 4740 Clearwater, Florida 33510
The Issue Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code. The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge. The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida. The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign. The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida. Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west. The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction. The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads: "479.07 Individual device permits; fees; tags.-- Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04." The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit. The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway. The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy. In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence. Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs. (In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.) The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected. Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign. Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.) Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814. Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement. It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states: "14-10.04 Permits. Permit Approval Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant. The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature. Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser. Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states: "14-10.04 Permits. Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within 30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible but not readily accessible by the general public." At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
Recommendation It is recommended that the signs located at State Road 814 and State Road 84 that are the subject matter of this dispute be removed. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Nancy Severs, Esquire Miller, Squire & Braverman 500 Northeast Third Avenue Fort Lauderdale, Florida 33301 =================================================================
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
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
