Findings Of Fact Interstate Highway 95 (I-95) and State Road 16 (SR 16) intersect in St. Johns County, Florida. There is an interchange located at the intersection of I-95 and SR 16 in St. Johns County. The sign in question is the northernmost of three signs constructed by Respondent on properly zoned private property owned by Charles Usina located southwest of the above interchange and adjacent to I- 95, fifteen feet from the DOT right of way. There is an entrance ramp southwest of the interchange that permits traffic traveling eastbound on SR 16 to enter the southbound lane of I-95. Prior to submitting sign applications to DOT, Respondent's President, Robert Harry, met with Helen Hession at the interchange. Ms. Hession is a Property and Outdoor Advertising Inspector employed by DOT in its District II. Mr. Harry requested the meeting with Ms. Hession to obtain her interpretation of where to begin measuring along the southbound lane of I-95 under DOT's "500 foot rule." At that meeting, Ms. Hession gave her interpretation as to how to locate the point of beginning measurement according to Rule 14-10.009 F.A.C. as enforced by DOT through Section 479.02(1) F.S. The relevant language of Rule 14-10.009 F.A.C. provides: Outside incorporated towns and cities, no structure may be located adjacent or within five hundred (500) feet of an interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way, or an interstate highway. Mr. Harry had been in the business of outdoor advertising for many years, but this was his first experience with this type of measurement using the "500 foot rule" at this type of interchange. Mr. Usina was present with Mr. Harry and Ms. Hession for their pre-application meeting on January 19, 1991. At that time, Ms. Hession indicated the point of beginning for them to measure from in order to utilize the "500 foot rule." Ms. Hession testified consistently and credibly that she had told Mr. Harry and Mr. Usina that the point to begin measuring the 500 feet pursuant to the rule was at the southern tip of the "gore" located between I-95 and the southbound entrance from SR 16. The "gore" is an asphalt triangle marked with white lines that is widest at the northern end where vegetation grows between the southbound lane and the entrance. According to her testimony, Ms. Hession stood in the middle of the gore, facing south, and stated that, under the rule, the measurement should start at the point of the triangle. Ms. Hession illustrated her formal hearing testimony by marking "Point 3" on Joint Exhibit 12, a demonstrative sketch of the interchange and environs, to show the location she had indicated to Mr. Harry and Mr. Usina as the point of beginning. Mr. Harry and Mr. Usina testified equally credibly and consistently that during their pre-application meeting, Ms. Hession had indicated to them that the point to begin measuring was located at the northern end of the gore, or the place at which the vegetation and the asphalt met. For purposes of illustration, they identified the point that Ms. Hession indicated during their pre-application meeting as being "Point 2" on Joint Exhibit 12. While it is clear that Mr. Harry was not seeking Ms. Hession's personal interpretation of "the 500 foot rule," but was seeking the agency's interpretation of the rule it has promulgated and is charged with administering, it is equally clear that Ms. Hession and Mr. Harry never had a meeting of the minds on the exact location that she told him to begin his measurements. Ms. Hession was in her bare feet and unwilling to move around with Mr. Harry and Mr. Usina on the roadway during part of their meeting, and Mr. Harry and Mr. Usina are not entirely consistent as to where everyone was standing at crucial times during their discussion. It is easy to see how a misunderstanding occurred. Mr. Harry made the measurements for Respondent's sign permit application beginning at "Point 2," the northern end of the gore where the end of the asphalt gore meets the vegetation between the entrance and the highway. This location is over 400 feet closer to the interchange than the point Ms. Hession testified she had indicated to Mr. Harry. On January 29, 1991, Respondent filed an application for a DOT permit to construct the sign in question and for the two other signs. The application for the sign in question stated that the sign would be located on private property adjacent to the southbound lane of I-95, fifteen feet (perpendicular measurement) from the right of way and .15 miles from the nearest intersection. Simple arithmetic shows .15 miles equals 792 feet. The sign in question was not actually in existence at the time the application was reviewed and approved. For purposes of DOT review and approval of Respondent's permit application, Mr. Harry had placed stakes bearing the FCOA initials on the DOT right of way at locations parallel to where he intended to erect the signs on Mr. Usina's property. 2/ When reviewing Respondent's application prior to permit approval, Ms. Hession did not rely on the location stated in the application, (.15 miles from nearest intersection), but made her own on-site measurements. She measured using a Distance Measuring Instrument (DMI) mounted in Bartley (Bob) Burch's truck. Mr. Burch drove the truck and observed the stakes but did not participate in making the measurements. Use of the applicant's stakes and DOT's own measurements is standard operating procedure for DOT in reviewing/approving permit applications because sometimes the applicants' measurements as made or as stated on the application are incorrect. Use of the DMI is also standard operating procedure for DOT in this process. The DMI in question was calibrated for accuracy by Mr. Burch immediately prior to Ms. Hession taking the measurements. During her pre-approval application review, Ms. Hession measured the distances between stakes bearing FCOA initials and the distance of the first stake from the SR 16 overpass. She also used the southern tip of the gore ("Point 3") as a reference point when taking her measurements. She measured to the first stake from SR 16 and found the first stake to be .3 miles distant therefrom. (TR-44-45, 53) She reset the DMI at zero and then measured 1500 feet south to the next stake; again reset the DMI at zero and measured 1500 feet south to the third and final FCOA stake. During her pre-approval application review, Ms. Hession found the first FCOA stake to be in a location consistent with her understanding that "Point 3" was the correct point of beginning for applying the "500 foot rule." The first stake was 500 feet south of the tip of the gore ("Point 3"). Using the measurements obtained with the DMI during the pre-approval application review, Ms. Hession approved Respondent's application for a sign .3 miles (not the applied-for .15 miles) south of SR 16, the intersection of SR 16 and I-95. Simple arithmetic shows .3 miles equals 1584 feet. Subsequent to the pre-application meeting with Ms. Hession, but prior to the issuance of the DOT sign permits/tags, Respondent entered into a ground lease agreement with Mr. Usina 3/ and also entered into outdoor advertising lease agreements for the sign (two sign faces) involved here. 4/ These advertising lease agreements were later voided due to a stop work order issued by DOT (See Finding of Fact 19). Respondent has subsequently mitigated some of its loss therefrom by entering into other leases at lower figures. Respondent's six applications for outdoor advertising sign permits were approved by Ms. Hession and processed through DOT's main office in Tallahassee. Permits and tags were issued by DOT on February 22, 1991. Issuance of these permits and tags constitutes final agency approval of the application in question. The permits authorized the erection of three signs in the vicinity of the I-95 and SR 16 interchange at .30, .58, and .86 miles respectively south of the SR 16 intersection. Respondent has never challenged the fact that each of these signs was permitted significantly further south and further away from the intersection than each of the locations applied for: .15, .43, and .72 miles, respectively. Respondent has never protested that the permit issued for the sign in question was not for .15 miles (792 feet) from the intersection, but was for .3 miles (1584 feet) from the intersection. Respondent timely and properly affixed the permit tags to the three monopole structures, as they were constructed. After the permits/tags were issued, Respondent borrowed $25,000 to erect the monopole/sign and Mr. Harry obligated himself to repay that loan with interest. Respondent began construction of the sign in question after February 22, 1991. After a monopole support for the sign in question was installed, two of Respondent's business competitors notified Tom Brown, DOT's Outdoor Advertising Administrator for District II and supervisor of Ms. Hession and Mr. Burch, that Respondent's northernmost sign in this location had been placed too close to the intersection/interchange. Mr. Brown reacted by issuing the stop work order on construction on May 2, 1991, which was posted on Respondent's monopole. The stop work order stated that the structure was within 500 feet of an intersection, in violation of Rule 10-14.009 F.A.C., as enforced through Section 479.02(1) F.S. Mr. Brown subsequently notified Mr. Harry by letter that pursuant to the authority of 479.105(1)(a), the stop work order had been issued because of an alleged violation of Chapter 14-10.009(B) SPACING OF SIGNS (2)(b) F.A.C. which is enforced through Florida Statutes Chapter 479.02(1). Respondent completed the sign in question after the stop work order was issued. Subsequent to her approval of the sign permits, Ms. Hession was instructed by Mr. Tom Brown that her interpretation of the agency rule was incorrect and that the proper place to have begun measuring for purposes of the "500 foot rule" was where the outside edge of the interchange entrance lane disappeared into the outside edge of the through lane of I-95. Bob Burch, a District II Outdoor Advertising Inspector of equivalent rank with Ms. Hession, testified that he interpreted the rule in a manner identical to Mr. Brown's interpretation. For purposes of illustration, this location is marked as "Point 1" on Joint Exhibit 12. The testimony of Tom Brown as to why his interpretation should be considered the agency's interpretation of the rule is sketchy but together with the corroboration of Bob Burch that this interpretation has been the standard application, it is accepted that DOT, as an agency, has interpreted the "500 foot rule" language to mean that a sign may not be located within 500 feet of the point at which the outside edge of an entrance disappears into the outside edge of a through lane on an interstate highway. This interpretation ("Point 1," for purposes of the instant case) is also consistent with the language of the rule and is the most reasonable reading of that language. "Point 2" is not consistent with the language of the rule. "Point 1," Mr. Brown's and Mr. Burch's interpretation of the rule's point of beginning, is furthest from the intersection, at the beginning of the through lane for I-95. "Point 3," Ms. Hession's original erroneous interpretation, is next furthest from the intersection, at the tip of the gore. "Point 2," Mr. Harry's mis-understanding of Ms. Hession's erroneous interpretation is closest to the intersection, where the gore meets the vegetation. Naturally, any distance measured from Mr. Harry's understanding of the point of beginning would be further north than, and closer to, the interchange than would be locations measured from either of the other two points. Immediately after the stop work order was issued, the sign in question was inspected and measured by Ms. Hession. This time she measured its location using a 100-foot tape. She used SR 16 and its overpass as her starting point. SR 16 and its overpass are permanent markers. (TR-47-49) She and Mr. Burch found that the monopole in question had been erected several hundred feet north of the location at which they had previously found Respondent's first stake. The monopole as constructed was less than 100 feet south of the tip of the gore, "Point 3," and north of "Point 1". According to these after-the-fact measurements, Respondent's erected monopole is not 500 feet or more south of either "Point 3" or "Point 1" and it is not located .3 miles from SR 16, as specified in the permit or even .3 miles from Points 1, 2, or 3.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order affirming the May 2, 1991 notices, revoking the permit for the single sign in question, and ordering the removal of the sign within 30 days. DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992.
The Issue Petitioner, Republic Media, Inc., seeks an outdoor advertising sign permit for a two-sided sign to be located on Interstate 4 in Orlando, Florida. The permit was denied because the proposed sign would conflict with (violate spacing requirements) a previously permitted sign. The issue for disposition is whether Petitioner’s permit should be granted. More specifically, disposition requires a determination of whether the previously permitted sign is “on” Interstate 4.
Findings Of Fact Republic Media, Inc. (then known as Maxmedia, Inc.) applied for an outdoor advertising permit on April 30, 1996, for a proposed sign site located on Interstate 4 (I-4), 199 feet east of Princeton Street, on the south side of I-4 in Orlando, Orange County, Florida. I-4 is an interstate highway. The proposed sign site is within 660 feet of I-4 and is intended to be visible from I-4. The proposed structure is a rectangular shaped bulletin, 10’6” by 36’, set on a monopole with east and west faces at a V-angle, to facilitate an effective viewing by motorists on I-4. Republic Media has a lease for the proposed site from the landowner, Shell Oil Company. The proposed sign was approved by the City of Orlando and a building permit was issued. POA’s is the nearest DOT-permitted outdoor advertising sign and is located 90 feet east of Princeton Street. The POA sign is on the same side of the interstate and the same side of Princeton Street as Republic Media’s proposed sign, and is less than 1,500 feet from Republie Media’s proposed sign. The POA sign consists of two back-to-back billboards mounted on a monopole facing north and south. The north face, facing I-4 and running parallel to the interstate, bears a Department of Transportation permit tag numbered BG003-35. POA applied for and obtained this permit in 1992. The permitted sign face measures 12’ by 25’ and is located within 660 feet of I-4. The POA sign is visible while traveling in both directions on I-4. It is visible, however, only if the viewer turns his or her head to look down Princeton Street while traveling I-4 on the Princeton Street overpass. Visibility is limited to a few seconds and is impeded by oleander bushes which are maintained and trimmed by the City of Orlando. The POA sign, which advertises Universal Studios, was intended and designed for viewing by traffic on Princeton Street. Republic Media has a sign located within 660 feet of State Road 408 (East-West Expressway) which is positioned similar to the POA sign at issue here. The Republic Media sign also runs parallel to State Road 408 and is actually farther from State Road 408 than the POA sign is from I-4. When State Road 408 became subject to state regulation of outdoor advertising, the Department of Transportation required Republic Media to obtain a permit for the sign face visible from State Road 408. This regulatory action is consistent with the permitting of POA’s Princeton Street/I-4 sign.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Republic Media’s application for sign permit at I-4 and Princeton Street be denied. DONE and ENTERED this 16th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April 1997. COPIES FURNISHED: David H. Simmons, Esquire Julie Walbroel, Esquire Drage DeBeaubian Knight Simmons Romano & Neal Post Office Box 87 Orlando, Florida 32802-0087 Andrea V. Nelson, Esquire Department of Transportation Hayden Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Hayden Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.
Findings Of Fact The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads: The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981. The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue. On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996. On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996. By letter dated August 30, 1994, the City advised Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996. As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995. Stipulation of Fact #2 reads: State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19. The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding. Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60). On May 22, 1974, State Road 60 was designated a Federal- Aid Primary. On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban. Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981. On or about October 1, 1981, Allan J. Stowell was issued state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality. State Road 60 became a part of the national highway system on November 25, 1995. Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state. Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor. Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business. Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating he was delinquent in certain costs and fees for the permits. When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current. The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable. When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981. After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994. After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions. After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997. Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government will issue a permit upon approval of the application by the Department. Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form. On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the property on which it is located in his application. One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years. Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997. The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign. Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute. When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.” There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application. The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve. Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.
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 permits for the maintenance of the signs in issue, and denying compensation for their removal. DONE AND ENTERED this 2nd day of February, 1998, 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998. COPIES FURNISHED: Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
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 Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER 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 4th day of January, 1994.
Findings Of Fact A sign advertising "Kapok Tree" in Daytona Business Park was permitted by the Department of Transportation (Department) at the intersection of Ventress Boulevard and U.S. Highway 92 (hereinafter referred to as the Kapok Tree sign). Lamar-East Florida Outdoor Advertising (Lamar) applied for an outdoor advertising permit for a sign to be located at Bill's Fruit Stand, 380 feet east from the Kapok Tree sign. The Department processed the Lamar application and issued a permit for said sign, although the Lamar sign was within the proscribed distance (500 feet) of the Kapok Tree sign. The Department conducted an on-site inspection, and the inspector failed to notice the Kapok Tree sign. The Department would not have issued the Lamar permit had the Kapok Tree sign been noted. The Kapok Tree sign had its permits displayed. Thereafter, Don Bell and Company (Bell) applied for an outdoor advertising permit for a sign located approximately 30 feet from the intersection of Bayless Avenue and U.S. Highway 92, 480 feet from the Lamar sign location, and 810 feet from the Kapok Tree sign. The Department denied Bell's application because that sign location was less than 500 feet from the Lamar sign location. Neither Lamar nor Bell have constructed signs at the subject locations for which they have applied for permits, although lease payments have been made by both Lamar and Bell. Both the Kapok Tree sign and Lamar have current permits, and Bell challenges the validity of the Lamar permit. But for its distance from the Lamar sign site, the Department would approve the Bell application. All parties stipulate that the Lamar notarized and certified application recites there is no sign within 500 feet of its site, when in fact the Kapok Tree sign was and is 380 feet from Lamar's site. Administration of outdoor advertising is dependent upon the representations made by an applicant in its application and the verification of said data by on-site inspection by the Department's inspector in issuing outdoor advertising permits. The Kapok Tree sign is not an on-premises sign.
Recommendation Having found that there are no valid grounds for denial, it is recommended that the Petitioner's application for an outdoor advertising permit be approved. DONE and RECOMMENDED this 22nd day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Ted Doran, Esquire 100 Seabreeze Boulevard, Suite 130 Post Office Box 2134 Daytona Beach, Florida 32015 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Edward M. Keating, Manager Lamar-East Florida Outdoor Advertising 2801 South Ridgewood Avenue South Daytona, Florida 32019 Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
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
Findings Of Fact Lamar acquired permits AA-634 and 7504 from Peterson Outdoor Advertising Company for a double-faced sign located on U.S. 98, South, approximately one-half mile north of Crystal Lake Drive on a site leased from Mary D. and Billy Allred. The lease (Exhibit 1.), executed in 1978, was for a three-year term with automatic renewal for an additional five year period and thereafter from year to year on the same terms and conditions unless terminated by lessee by giving 30-days notice prior to the end of the lease year. By warranty deed dated June 14, 1983, (Exhibit 2.) Sun State acquired the property on which this sign was located from Allred. Rent on this lease for 1984 was sent to Allred by Lamar, endorsed over to Sun State and cashed by Sun State. A check for rent for 1985 sent by Lamar to Sun State was never negotiated. By letter dated April 3, 1985, (Exhibit 4.) Sun State Homes told Lamar to immediately remove the sign from its property on U.S. 98, South. On May 16, 1985, Sun State applied for a permit for a sign on U.S. 98, 550-feet north of North Crystal Lake Drive. This application was disapproved by DOT on June 7, 1985, in Exhibit 3 because it was in conflict with the sign for which Lamar held tags for the proposed site. On or about the same time, Sun State applied to Polk County for a building permit to erect a sign at this site. Polk County disapproved the application because DOT had denied the permit. By letter dated May 29, 1985, Sun State appealed the denial of their application. On or about May 27, 1985, Lamar removed their sign from Sun State's property. On May 28, 1985, Lamar submitted an application for a permit to erect a sign on U.S. 98, 1,200 feet north of N. Crystal Lake Drive (Exhibit 5.) and simultaneously surrendered tags no. AA-634 and 7504. Lamar had obtained permission from the owner of that property to erect a sign at this site. This application was denied by DOT because of the appeal by Sun State from its denial. DOT will not approve an application for a sign permit when the right of occupancy of the site is contested. Lamar appealed this denial and the two cases were consolidated for hearing. The two applications are mutually exclusive as only one can be granted without violating spacing requirements.
Findings Of Fact In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was $1,055.00. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in Brevard County, Florida, be DISMISSED; and it is further RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED. THIS RECOMMENDED ORDER entered this 16th day of October, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T 86-0452T Rulings on Petitioner's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact. Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 A. J Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
