Recommendation That the allegations against Respondent be dismissed. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562, Haydon Burns Building Tallahassee, Florida 32304 Regis Reasbeck, Esquire 6011 Rodman Street Hollywood, Florida
The Issue Whether a sign owned by Respondent and located on the southbound side of I- 95 north of Pembroke Road in Broward County, Florida, violates Chapter 479, Florida Statutes, as alleged in the notice dated August 8, 1991; and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes. Chapter 479 regulates outdoor advertising structures along the state highway system. Respondent is the owner of a sign located adjacent to the southbound side of Interstate 95 ("I-95") near Pembroke Road in Broward County, Florida. Respondent maintains the sign on the side of the trailer portion of a so-called 18 wheel tractor-trailer (an "18 wheeler") in a stationary position. No truck or tractor is affixed to the trailer. The sign and 18 wheeler were situated on property owned by Air Stern. Air Stern is an air conditioning company. Petitioner's Outdoor Advertising Inspector (the "inspector") first observed the sign in August, 1991. The sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary location. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. The advertising message was clearly visible from I- 95. A light facing the sign was affixed to the ground and positioned to illuminate the sign on the side of the 18 wheeler at night. An expired 1990 Florida license plate was affixed to the back of the trailer. Grass had grown up around the tires of the trailer and the trailer had been in its same position for several months. The inspector issued a Notice of Violation by physically attaching it to the trailer on August 8, 1991. The inspector determined that the printed advertisement on the trailer's side was an unpermitted sign that violated Section 479.07(1), Florida Statutes. The inspector based his determination upon his observation of the trailer on the premises, its position in relation to I- 95, and the type and content of the message printed on the side. Another copy of the Notice of Violation was mailed to Respondent. After more than 30 days had elapsed with no action by Respondent, Petitioner had the first sign removed by Sal's Towing on September 23, 1991. The sign was stored at Petitioner's maintenance facility in Ft. Lauderdale, Florida. On November 9, 1991, Respondent paid the towing charge for removal of the sign and then returned the sign to its original location adjacent to I-95 near Pembroke Road in Broward County, Florida. In addition to placing the sign in its original location, Respondent placed a second sign next to the first sign. The second sign was substantially similar to the first sign. The second sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary position with no truck or tractor attached. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. A sign permit has not been applied for by Respondent nor issued by the Department for either of the signs located adjacent to I-95.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent shall have ten days from the date of the Final Order to comply with Notice of Violation No. 4-369 by removing the sign or be subject to the cost of removal and imposition of an administrative fine. DONE and ENTERED this 6th day of April 1992, in Tallahassee, Florida. DANIEL MANRY 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 6th day of April 1992.
Findings Of Fact In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That: Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed. DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Covered in Findings of Fact 1, 3, 4 and 7. Incorporated in Findings of Fact 5 and 6. Incorporated in Findings of Fact 7 and 8. Incorporated in Findings of Fact 2 and 7. Rulings on Proposed Findings of Fact Submitted by Respondent Incorporated in Findings of Fact 1 and 2. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 5. Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 7. Paragraph 1 - approved. Paragraph 2 - approved. Paragraph 3 - approved. Approved. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Rejected as conjecture after the fact. Rejected. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151
Findings Of Fact Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property. Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained. A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar. Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site. Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing. By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property. By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department. The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County. The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective. There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising. The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site. The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied. DONE and ORDERED this 28th day of December, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of December, 1984. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the Notice of Illegal Sign dated September 17, 1987; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On September 17, 1987, the Department issued a Notice of Illegal Sign on Right-of-Way for an outdoor sign located in the water and adjacent to U.S. 1 approximately 1.39 miles north of Jewfish Creek Bridge, Monroe County, Florida. The sign in dispute was visible from the road and stated the following: Egan's Waterway Restaurant Gas Good Fast Food. Tourist Info M M 107 1/2 (Right after bridge) The sign did not have a state outdoor advertising permit attached to it. The sign was located approximately 85 feet from the centerline of the road. U.S. 1, also known as State Road 5, is designated as a federal aid primary highway in Dade and Monroe Counties. Egan Adams is manager and president of Egan's Waterway. Mr. Adams admitted he is the owner of the sign in dispute. The sign was mounted on a pontoon-type vessel and was anchored in knee- deep water. The vessel had been registered as a boat and identified by Florida 7454 FG. Prior to issuing the Notice of Illegal Sign, the Department's employee had warned Mr. Adams that the sign was located within the right-of-way. On or about September 19, 1987, Mr. Adams moved the sign further away from the road and removed the orange violation sticker which had been posted on it. The right-of-way in the vicinity of the sign in dispute is 200 feet wide. The centerline of the right-of-way corresponds to the centerline of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a Final Order assessing a fine of $75.00 against Egan Adams pursuant to Section 479.107, Florida Statutes (1987). DONE and RECOMMENDED this 1st day of April, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4495T Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted. Paragraphs 2-6 are accepted. The first sentence of paragraph 7 is accepted. The rest of paragraph 7 is rejected as a conclusion of law, argumentative. Paragraphs 8 and 9 are accepted. COPIES FURNISHED: Charles G. Gardner, Esquire 605 Suwannee Street Tallahassee, Florida 32301 Egan Adams Manager/President of Egan's Waterway Box 2, M.M. 107.5 Key Largo, Florida 33037 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 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
Findings Of Fact By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg installed a sign on U.S. 301, 7.19 miles south of I-4 in violation of Rules 14- 10.04 and 14-10.05, Florida Administrative Code. The sign in question is an outdoor advertising, sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years. The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road. Until 1976, the road on which the sign borders was a federal-aid secondary road. Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979. Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign. Both parties agreed to submit the legal issue to the Hearing Officer for determination.
The Issue Should certain outdoor advertising signs owned by Respondent, Lamar East Florida (Lamar) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Lamar?
Findings Of Fact Lamar is licensed pursuant to Chapter 479, Florida Statutes, to conduct the business of outdoor advertising. The Department regulates the outdoor advertising business in accordance with that law. In 1964, outdoor advertising signs that are the subject of the proceeding were constructed along US Highway 1 in Volusia County, Florida. Subsequently, in 1971, outdoor advertising signs which are the subject of the proceeding were constructed along Interstate 95 in Volusia County, Florida. The signs in both places are subject to permits issued by the Department to Lamar. The signs were legally erected but became nonconforming based upon their spacing in relation to other permitted outdoor advertising signs. The Lamar signs and their spacing are described as follows: Permit No. BN674-55, East of Interstate 95, 3.183 miles north of NEB790079 Hull Road is 881 feet from a permitted sign to the north. Permit No. BJ689-55, East of Interstate 95, 2.588 miles north of NEB790079 Hull Road is 343 feet from a permitted sign to the north. Permit No. BN681-55, East of US Highway 1, 0.088 miles north of Pine Tree Drive is 216 feet from a sign under Permit No. BU855. Permit No. BN682-55, East of US Highway 1, 0.027 miles north of Hull Road is within 332 feet of a permitted sign to the north. Permit No. BV232-55, East of US Highway 1, 0.0129 miles north of Pine Tree Drive is 216 feet from a permitted sign to the north. Each of the Lamar signs is within 660 feet of the first named highway or interstate, within Volusia County, Florida. Lamar owns and maintains the outdoor advertising signs that have been identified. On June 19, 1998, under dry weather conditions, a series of lightening strikes started a wildfire in a remote swampy area. Before the fire ended in July of 1998 its dimensions were extensive. The wildfire burned in Volusia and Flagler counties, Florida, west of Daytona Beach and Ormond Beach, Florida, and extending into the city of Ormond Beach. Eventually, it consumed the Lamar signs that have been described to the extent that the up-right wooden supports of each of the signs were substantially burned. This destruction took place on July 1, 1998. The degree of destruction was within the definition of "destroyed" set out in Rule 14- 10.007(1)(d), Florida Administrative Code. Before their destruction the signs had been lawfully permitted by the Department. Interstate 95 and US Highway 1 had been closed to the public before the Lamar signs were "destroyed." The attempt by Lamar to gain access to the outdoor advertising signs was not successful because of the road closures by government authorities. Following their destruction, Lamar re-erected the structures by reinstalling the signs at the same locations using substantially the same type of materials as had been previously found in the structures being replaced. None of the materials used to re-erect the signs were part of the sign structures immediately before the destruction of the original signs by the wildfire. When re-erected the signs were the same size, shape, and height of the destroyed signs. Lamar does not own the property where the signs are located. Lamar operates pursuant to agreements with property owners by which Lamar has the right to maintain the signs. Upon the expiration or termination of the agreements with the property owners, Lamar may remove all of its sign materials from the properties and absent an agreement no longer maintain the signs. Lamar has no other business interest in the properties where the signs are located. The purpose of the outdoor advertising signs is to lease advertising space to third parties for advertising purposes which generates income to Lamar. Each outdoor advertising sign in question provides that income. The suppression effort directed to the fire was limited due to the remoteness of the swampy area in which the fire originated and a paucity of manpower and equipment. As a consequence, the firefighting effort did not begin in earnest until June 20 or 21, 1998. The fire was combated through efforts of the Florida Department of Agriculture, Division of Forestry and other national, state, and local firefighting organizations. The fuel for the fire, that is, bushes and trees, was dry. The weather conditions were highlighted by low relative humidity and a very high dispersion index. The smoke from the fire rose in the atmosphere and carried its embers from the west to the east. The fire came out of the Hull Cypress Swamp and the embers picked up by the wind crossed fire control lines and continued to spread to the east. Eventually, the two main fingers of the fire burned together on July 2, 1998. Before it was suppressed the fire, known as the Rodeo Road Fire, would consume 61,500 acres. The progress of the fire is depicted in Petitioner's Exhibit No. 1, a map of the area in question, to include the area in which the subject signs were located. Petitioner's Exhibit No. 3 portrays the location of the signs more precisely. More specifically, the conditions in the swamp were extremely dry at the time the fire commenced as evidenced by the available dry fuel load in the swamp, which fuel load would normally be wet. Under wet conditions the fire would either not have burned or would have meandered. Given the dry conditions in the swamp in June 1998, there was a lot more fuel available to burn. East of the swamp the land that was burned was constituted of pastures, range land, and forest lands. Some areas had been subjected to prescribed burning to control available fuel loads in an incidence of wildfire but other areas had not been subjected to prescribed burning before the wildfire. Had property owners in the area affected by the wildfire conducted prescribed burning before that event it would have reduced the fuel load available for incineration. In some places in the advance of the wildfire the fuel loads were heavy, in other places less so, in that the property was constituted of pastures. In addressing the fire, the firefighters' priorities, in turn, included their safety; the safety of the public; the protection of property, to include structures; and finally the protection of resources such as timberland. By their efforts in addressing this incident the firefighters managed to save homes and businesses by creating defensible space around those structures against the on-set of the fire. The area of defensible space necessary is at least 30 feet, which reduces the chance of direct flame impact on the structure. Another technique that was employed to address the consequences of the wildfire was backfiring or imposition of the "black line concept." This is a nationally recognized firefighting technique. It is used when a fire is burning in an area that is inaccessible or has a potential to overrun a fire control line in a setting in which unburned fuel exists between the main fire and the control line. The unburned material is then deliberately burned before the main fire reaches that area to protect the control line from the main fire. The backfire is best employed when the weather conditions are conducive to its use, including wind direction and levels of humidity. During the time that the Rodeo Road Fire took place the use of backfires was not especially successful due to the dryness of the fuels. In the course of the Rodeo Road Fire, Georgia Pacific now known as the Timber Company, used a backfire to protect its property against the northward and eastward progress of the wildfire. The backfire was lit on June 28, 1999. The backfire by the Timber Company did not control the wildfire. It was successful on the west flank of the wildfire but unavailing on the east flank where the backfire by the Timber Company intersected the wildfire and the wildfire continued its eastward progress which had already begun. The setting of the backfire by the Temper Company was an appropriate tactic. Its outcome was inconsequential when considering the progress of the wildfire and its eventual destruction of the signs. Nor is the decision of a California fire crew to use a backfire to protect itself and its equipment found to have meaningful significance in promoting the forward progress of the wildfire to the east where the wildfire would destroy the signs. The backfire lit by the fire crew occurred on July 1, 1998. Backfiring to secure safety is an approved tactic for firefighters in making an independent judgment to protect their lives.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which revokes the sign permits that have been described and requires the removal of those signs within 30 days of the entry of the final order. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings 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 this 21st day of October, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Petitioner's outdoor advertising sign on the east side of U. S. Highway 441, 1.2 miles north of State Road 46, in Lake County, Florida, can be maintained on the ground it is exempt from permitting requirements.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At issue in this case is whether Petitioner, Donald E. Stevens, is entitled to maintain an existing outdoor advertising sign located on the eastern side of U. S. Highway 441, 1.2 miles north of State Road 46, in Lake County, Florida. In proposed agency action issued on October 17, 1994, Respondent, Department of Transportation (DOT), denied Petitioner's application for a permit on the ground the sign was located "only 818' North of location - Tag BJ630.25. [It] [m]ust be at least 1,000' to be a conforming location." Petitioner now concedes that he cannot qualify for a permit, but he maintains that the sign is an "on- premise sign" and is therefore exempt. Petitioner owns certain real property bordering on U. S. Highway 441, in Lake County, Florida, on which is located a commercial building and a large billboard sign. The structure has been located on the property since 1968. The building contains a large, walk-in cooler, while two portable coolers are located just outside the building. An occupied mobile home sits on the rear part of the property. On September 1, 1994, Petitioner received a Notice of Violation - Illegally Erected Sign from DOT indicating the sign was not properly permitted. In response to this notice, Petitioner submitted an application to DOT on September 15, 1994. After reviewing the application, on October 17, 1994, DOT denied the same on the ground the sign violated statutory spacing requirements by being within 1,000 feet of another permitted sign. In an effort to informally resolve the matter, Petitioner met with DOT representatives in Tallahassee and eventually executed a stipulation on March 13, 1995, in which he agreed that by March 20, 1995, he would "provide [DOT] with written documentation (e.g., a lease) that the business being advertised on the subject sign is on the same business' premises as the subject sign." Petitioner also agreed to "safely cover over or paint out that portion of advertising copy on the subject sign which refers to an off-site business location." The stipulation further provided that if these conditions were met, DOT would enter a Final Order dismissing the petition for hearing and allowing Petitioner to maintain the sign as an off-premise sign. If, however, Petitioner failed to comply with the agreement, DOT would refer the matter to the Division of Administrative Hearings for a formal hearing. Contending that Petitioner has failed to meet the terms of the agreement, and that his sign is now unlawful, DOT has initiated this proceeding. In order for the sign to qualify as an on-premise sign under the terms of the stipulation, there would have to be business activity inside the building related to the business advertisement on the sign. In other words, the lessee would have to utilize a portion of the building on Petitioner's property for its business. To fulfill his side of the agreement, Petitioner provided DOT with a lease agreement dated January 5, 1995, between he and Vic Donahey, under which Donahey agreed to rent the "on-site bill board and walk in cooler in the building" for a fixed sum of $150.00 plus tax each month. Donahey operates a restaurant in Leesburg, Florida, known as Vic's Embers, which is approximately fifteen miles from the location of the sign, and a catering business at three locations in Sumter and Lake Counties. Pursuant to the lease agreement, Petitioner has allowed Donahey to carry the following message on his sign: "Vic Embers - Great Steak! Fresh Seafood! Perfect Pasta!" Accordingly, the sign meets the definition of an outdoor advertising sign. Within a few weeks after the stipulation was executed by the parties, a DOT inspector attempted to inspect the commercial building to determine whether Donahey was actually using the cooler for his business activities. At that time, the inspector found the building with a "for rent" sign and could not gain access to the cooler area. In the following months, the inspector attempted to inspect the cooler on several occasions but was never given access to that part of the building. As recently as a week prior to the hearing, the inspector again visited the premises but found the building closed and could not gain access to the premies. When the lease was executed, Petitioner was under the impression that Donahey would use the cooler to store foodstuffs (such as vegetables) for his restaurant and catering business. However, he has no knowledge as to whether Donahey has ever used the facility for storage purposes and says he has never inspected the coolers since 1995 to ascertain if Donahey actually uses them. In view of the complete absence of proof that there is any business activity in the building that is related to the message on the sign, it is found that the terms of the stipulation have not been satisfied by Petitioner, and that his existing sign cannot qualify for an exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order determining that Petitioner's outdoor advertising sign is in violation of Chapter 479, Florida Statutes, and should be removed. DONE AND ENTERED this 2nd day of December, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this day 2nd of December, 1998. COPIES FURNISHED: Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-00458 Michael A. Croak 14229 U. S. Highway 441 Tavares, Florida 32778 Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
