The Issue Is the Notice of Violation against Respondent valid; and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On June 7, 2001, DOT issued Notice of Violation 10B ST 2001 412, against a billboard sign located adjacent to Interstate 95 (I-95), approximately 1.3 miles north of the intersection of I-95 and U.S. Highway 1 at Exit 92. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95 and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The sign is a "permanent" one and has never been permitted by DOT. Exit 94 has not applied to DOT for a sign permit for the subject sign or paid any sign permit fees for it. No sign permit has been issued to any entity for the sign. The sign displays the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." The phrases on the sign are displayed on two stacked faces without the slashes. The letters are all capitalized; the size of the letters and the paint colors of yellow and black call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The words "WE DARE TO BARE" and "EXIT 94" are in very large black type and cover most of the two faces of the sign. The phrases "CAFÉ EROTICA," "ADULT TOYS," "GREAT FOOD," and the abbreviation "INC.," are the phrases smallest in size, located at the very top left, middle right, middle left and bottom right of the sign. All the small phrases are in black type and are relatively inconspicuous compared with the rest of the sign. There are no addresses, telephone numbers, arrows, or other identifying information on the sign. Respondent, Cafe Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., is a Florida corporation. It was incorporated in 1998. At all times material, Café Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, president, shareholder, and director of Respondent. Mr. Sullivan chose the name of the company because the words and phrases "get your attention," are memorable, and are words and phrases Mr. Sullivan has used a lot over the years to advertise for the Café Erotica. Exit 94 does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94 is the development of hunting and fishing camps on various pieces of property it owns or leases in Florida and Georgia. Café Erotica of Florida, Inc., d/b/a Café Erotica (Café Erotica), is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica. Exit 94 leases the land where the sign is located from James Grady Wainright, the owner of the property. The rental property consists of approximately ten acres. The lease was signed on April 20, 2001. The annual rent is $3000.00 per year. Mr. Wainright has received all the rent for 2001 from Mr. Sullivan. Mr. Sullivan was reimbursed by Respondent shortly after he paid the rent to Mr. Wainright. The stated purpose of the lease is the construction and maintenance of a hunting and fishing camp. The lease also authorizes Exit 94 to erect advertising signs on the property, states that any such signs will remain the property of Exit 94, forbids Mr. Wainright from obstructing the highway view of such signs, and grants Exit 94 permission to remove any vegetation that may obstruct the view of such signs. Mr. Wainright originally contacted Mr. Sullivan about leasing the property because he was interested in obtaining income from having a sign on his property. However, his interest resulted in the current hunting and fishing camp lease. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR 207), at the intersection of SR 207 and the exit 94 off-ramp from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94. The real property owned by Exit 94, which is the subject of DOT's Notice of Violation, is approximately nine miles from the Café Erotica restaurant. Mr. Sullivan makes the advertising decisions for Café Erotica. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Until about two weeks before the hearing of this matter, Café Erotica maintained a billboard at the café that displayed the words "PRIVATE DANCES," "GREAT FOOD," and "ADULT TOYS." At the time of hearing the billboards at Café Erotica now include words disparaging of the Department. Café Erotica does not own any interest in the subject sign and no citizen testified that the sign had caused him/her to patronize Café Erotica. However, given the similarity of the corporate name of Exit 94 to advertising used by Café Erotica and the location of Café Erotica at Exit 94, it is likely that Respondent's corporate advertising could also be interpreted as intended for Café Erotica and therefore be of incidental benefit to Café Erotica. On the other hand, the sign is intended to advertise Exit 94's hunting and fishing camps. In short, Mr. Sullivan and his corporations receive a dual benefit from the sign at issue here. Exit 94 lists addresses and locations other than the subject property as its business address(es) for various purposes. Mr. Sullivan's and Exit 94's main business address and office is on SR 206 off Exit 93 on I-95. Exit 94 maintains no office or telephone on the subject property. Jerry Sullivan has directed all activity on the Exit 94 property. His son is a licensed hunting and fishing guide. Jerry Sullivan anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp with guide services, if desired, provided by his son. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Currently, Exit 94's only revenues have been payments from other companies owned by Mr. Sullivan or his wife for use of the hunting and fishing camps maintained by Exit 94. The company has operated at a loss since its inception. The loss is made up by Mr. Sullivan as is needed. There is no public access to the property Exit 94 leases from Mr. Wainright. The property is accessible by going through property owned by a timber company. The closest exit off I-95 to get to the property is Exit 92, where U.S. Highway 1 intersects with I-95. As of the hearing of this matter, Exit 94 was not operating a fishing camp open to the public on the property leased from Mr. Wainright. However, such a public enterprise is not required in order for Exit 94 to be a legitimate business. The parties do not dispute the fact that there is a pond on the subject property. The evidence varied as to the size and quality of the pond with the lower estimate by the Department at 1/2 to 3/4 of an acre and the higher estimate of two acres provided by the landowner. Respondent estimated the size of the pond to be slightly less than two acres. The pond was not stocked with fish, but did have some fish present. Respondent has ordered special hybrid bream to stock the pond for "catch and release" by Respondent's customers and guests. The property was not stocked with game animals, although such stocks would not be necessary for hunting since wild game including turkey, boars, and ducks are already present. There was also one very ramshackle deer blind on the property. There were no public restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. A small trailer was located on the premises. The trailer was placed there and is owned by Mr. Wainright. It is unknown if the trailer is available for overnight lodging. However, the trailer is not necessary for the property to function as an overnight camp and no witness testified to having camped overnight on the subject property. Petitioner routinely distributes corn for seeding the woods for deer and other game. Given the location of the subject property, game attraction is certainly feasible. Bill Harry showed DOT personnel around the subject property. The Department's witness, Tom Simmons, was generally critical of the quality of the hunting and fishing facilities. While there were no people using the pond during his brief inspection, Mr. Simmons has no personal knowledge as to whether people actually hunted or fished on the property at any other time. The Department's representative acknowledged that he saw feed corn scattered on the property for use in luring wildlife to the premises. Exit 94 holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the county accepted Exit 94's designation of its business. Exit 94 has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94 produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Exit 94 is a legitimate business. It is in the business of providing and developing hunting and fishing camps for use as directed by Exit 94. No reason was demonstrated to pierce the corporate veil of Exit 94. The sign located on the property at issue here only and primarily contains the name of the corporation and is exempt from the general sign permitting requirements. Therefore, the Notice of Violation should be dismissed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Based upon the testimony received the primary issue is whether the poles wore erected before the highway, I-10, was opened to the public. If so, do such poles constitute signs within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such structures?
Findings Of Fact The subject signs are located 1.37 miles east of State Road 71 on I-10. These signs were inspected on October 22, 1980, by an inspector of the Department of Transportation, who observed that the signs' messages were visible from the main traveled way of I-10 and did not bear the permits required by Chapter 479, Florida Statutes. At the time of this inspection, I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The signs were located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, name plates were attached to the signs. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See files, Cases No. 81-102T and 81-103T. The foregoing facts establish that the subject signs are signs regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the signs. Gene Henderson testified concerning the erection of the poles and the attachment of sign faces to the poles. The sign poles were erected during the latter part of 1975. A sign face advertising "76 Auto Truck Stop" was affixed to the poles on November 1, 1978 (Case No. 81-102T), and a sign face advertising "Holiday Inn" was affixed to the poles on April 1, 1977 (Case No. 81-103T). The signs are owned by Henderson Signs, which erected the poles prior to the time I- 10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject signs are located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 7, an aerial photograph of the section of I-10 along which the subject signs are located. This photograph hears the number PD 1996 and is Sheet 11 of 28 sheets taken on December 29, 1976. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the signs, 1.37 miles east of SR 71 on I-10. The photograph was examined by the Department's engineer, who did not observe the presence of poles or outdoor advertising signs at the location. The photograph was taken nearly one year after the date Henderson stated the poles were erected but does not reveal the presence of the poles.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the sign in Case No. 81-102T within 30 days and without compensation to the sign owner, and directing the removal of the sign in Case No. 81-103T on October 14, 1982, without compensation to the sign owner. DONE and ORDERED this 16th day of September, 1981, 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 16th day of September, 1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
Findings Of Fact Respondent owns a series of light poles that were erected at Respondent's expense at various locations within the city limits of the City of West Miami (the "City") pursuant to a written contract between Respondent and the City (the "contract"). Signs were affixed to eight light poles with the permission of the City pursuant to the contract. Respondent paid for the cost of construction and installation of the light poles. Respondent also pays operating costs for the light poles, including utility and insurance costs. The sign on each light pole is self illuminating. Respondent pays the City a percentage of advertising revenues derived from signs placed on the light poles. Revenue from advertising is derived from signs attached to eight of the light poles erected by Respondent. 1/ Advertising revenues from signs to be affixed on all of the light poles erected by Respondent were projected by Respondent and the City in an amount sufficient to pay for the capital and operating costs of the light poles and provide both the City and Respondent with additional revenue. The five signs at issue in this proceeding are not permanent. Each sign consists of a metal frame approximately three feet high and two feet wide. Each metal frame is attached to the light pole by bolts and clamps. Advertising is provided on heavy duty paper covered with a clear, mylar plastic panel. Advertising can be easily changed by sliding out an old advertising panel and inserting a new advertising panel. The metal frame can be detached from the light pole in a matter of minutes by removing the bolts and clamps. The five signs at issue in this proceeding are attached to light poles erected on State Road 90 which is also U.S. 41, the Tamiami Trail, and Calle Ocho (the "Tamiami Trail"). 2/ The signs are located within 660 feet of the Tamiami Trail where it intersects Southwest 67th Avenue and Ludlam Road and where it intersects Southwest 57th Avenue and Red Road. The portion of the Tamiami Trail on which the five signs are located is designated by Petitioner as part of the federal-aid primary highway system. Some of the eight signs erected by Respondent are within a thousand feet of other permitted signs. The five signs at issue in this proceeding were erected without first obtaining permits from Petitioner. Each sign and sign message is visible from Tamiami Trail. Each sign advertises business activities conducted at locations other than those where the signs are located. None of the five signs at issue in this proceeding are official road signs or traffic control devices. The signs do not: indicate points of historical interest; advertise the sale or lease of the property upon which they are located; advertise only the name or nature of the business being conducted, or products, goods, or services that are sold, supplied, or distributed upon or in the premises upon which the signs are located. The signs were not in place prior to July 3, 1986. The signs are not otherwise within an area where signs are permitted by law. Approximately three or four years ago, Eric Nadel, Respondent's president and founder, conferred on a number of occasions with Mr. William Kenney who is the Outdoor Advertising Coordinator for Petitioner's District 6. Mr. Nadel advised Mr. Kenney of the plan to put signs on light poles. Mr. Kenney told Mr. Nadel " . . . over and over again . . . " which locations on state roads in Dade County would require sign permits and which locations would not require sign permits. Mr. Kenney provided Mr. Nadel with Petitioner's log of the state highway system in District 6, including Dade and Monroe counties. The log identified those roads designated by Petitioner as interstate highways ("FAI"), federal-aid urban highways ("FAU"), and federal-aid primary highways ("FAP"). Mr. Kenney also provided Mr. Nadel with copies of Chapter 479, Florida Statutes. 3/ The light poles and five signs at issue in this proceeding were erected and installed by Respondent subsequent to the time Mr. Nadel conferred with Mr. Kenney. Mr. Nadel was personally responsible for the erection of the light poles and signs. The signs do not carry sign permits and were erected without first obtaining sign permits. After the lights and signs were installed, Mr. Nadel received a Notice to Show Cause for each of the five signs at issue in this proceeding. After a formal hearing was requested in this proceeding, Mr. Nadel met with representatives of the Petitioner including, George Fisher, Enforcement Supervisor, Stanley M. Cann, Director of Operations, and Barbara Hobbs, attorney. Mr. Nadel was accompanied by Mr. Alex Chavez, a commissioner for the City during the period when the contract was negotiated and executed between the City and Respondent. Discussions at the meeting between the parties included the potential violation of Chapter 86-308, Laws of Florida, which designates Calle Ocho as an historic roadway (the "Calle Ocho Statute"). 4/ An agreement of the parties was reached as a result of the meeting between Mr. Nadel and representatives of the Respondent. The agreement was memorialized in a letter dated March 13, 1990, from Mr. Fisher to Mr. Nadel. Petitioner agreed to stay further removal action against existing unpermitted signs for 90 days from March 13, 1990. Respondent agreed not to install any additional signs until proper permits are issued for the existing unpermitted signs. Petitioner agreed to "process" Respondent's applications for sign permits if Respondent secured approval from the Division of Archives for all signs in the area covered by the Calle Ocho Statute. Approval of any applications for sign permits was expressly conditioned upon Respondent's compliance with the current provisions of Chapter 479, Florida Statutes. In the event Respondent was unable to secure approval from the Division of Archives for all signs in the area covered by the Calle Ocho Statute "and" comply with Petitioner's requirements for obtaining valid permits, Petitioner would remove the signs and bill Respondent for the costs incurred. The agreement of the parties expressly provided that the terms of the agreement did not waive any legal rights of the parties. The Division of Archives determined that it had no jurisdiction over any of the signs at issue in this proceeding. After several preliminary letters, the Division of Archives notified Mr. Nadel of its determination by letter dated April 25, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's notices of violation be upheld, and the five signs at issue in this proceeding be removed in accordance with applicable Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of March, 1991. 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 25th day of March, 1991.
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue Did the Department of Transportation properly issue Notice of Violation No. 10B LJM 1997 197 to Respondent pursuant to Chapter 479, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Deron's owns the property located at 4212 Hammond Drive (State Road 542) which is on the east side of Hammond Drive. Deron's business establishment is located at 4212 Hammond Drive. Deron's primary business activities such as screen printing, embroidery, and sales are conducted at 4212 Hammond Drive. Eastwood Self-Storage (Eastwood) is located at 4207 Hammond Drive, which is on the west side of Hammond Drive. Eastwood is in the business of leasing storage spaces to the public for self-storage. Deron's currently leases three self-storage spaces from Eastwood where Deron's primarily stores its excess inventory and supplies. Deron's does not have a business office located at 4207 Hammond Drive and does not conduct any of its business activities such as screen printing, embroidery, and sales at the self-storage units located at 4207 Hammond Drive. The sign subject to this proceeding (sign) is located at 4207 Hammond Drive on property owned by Eastwood. Deron's paid Eastwood to erect the subject sign which sits on top of an on-premise sign owned by Eastwood. Deron's does not pay any rent for the use of the sign to Eastwood or anyone else. The sign advertises Deron's business and the business activities performed by Deron's at its establishment located at 4212 Hammond Drive. Hammond Drive separates the property owned by Eastwood where the sign is located (4207 Hammond Drive) from the property owned by Deron's at 4212 Hammond Drive upon which Deron's business establishment is located. The sign is located within 660 feet of, and is visible to, State Road 542, a jurisdictional highway for purposes of enforcing outdoor advertising. Because of the location of the subject sign (within a 1000 feet of another permitted sign on the same side of Hammond Drive), it does not meet the permitting requirements of Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the subject sign to be in violation of Chapter 479, Florida Statutes; and it is further recommended that Deron's be required to remove the sign from its location. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st of December, 1998. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John G. Wood, Jr., Esquire 3601 Cypress Gardens Road Suite A Winter Haven, Florida 33884
The Issue Whether the sign against which the Department of Transportation issued Notice of Violation 10B ST 2001 502, violates Chapter 479, Florida Statutes, so that the sign must be removed.
Findings Of Fact 1. On January 30, 2001, DOT issued Notice of Violation 10B ST 2001 502, against a billboard sign located adjacent to Interstate 95 (I-95), 7.998 miles north of the Flagler County line in St. Johns County. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. 2. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95, and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. 3. The sign is a "permanent" one and has never been permitted by DOT. 4. Respondent Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name, pursuant to Section 607.0401, Florida Statutes. It will hereafter be referred to as "Exit 94, Inc." 5. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of Exit 94, Inc. Mr. Sullivan is also president and principal of approximately 35 other Florida corporations, including two outdoor advertising companies (sellers and lessors of billboards), named "Sunshine Outdoor" and "Interstate Billboards," and also of Café Erotica of Florida, Inc., d/b/a Café Erotica. Mr. Sullivan has decision-making authority over Exit 94, Inc., and the Café Erotica restaurant. He is knowledgeable about DOT sign permitting requirements. 6. Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. The Café Erotica restaurant is a 24-hour per day, full-service restaurant, accessible from exit number 94 of I-95. It also features dancers clad in bathing suits and sells adult toys. 7. Exit 94, Inc., does not, and never has, provided food, adult toys, or bare people at the subject location or anywhere else. 8. The parties' stipulation herein, incorporating photographs which are also in evidence, demonstrates that the sign which is the subject of this proceeding is a permanent billboard reading, "CAFE EROTICA," "WE DARE TO BARE," "GREAT FOOD," "ADULT TOYS," "EXIT 94, INC." This is not an exact statement of Respondent Exit 94, Inc.'s, authorized corporate name, due to the juxtaposition of the phrases, "Great Food" and "Adult Toys" and the sign's failure to include the slashes separating the phrases. The paint colors on the sign call the viewer's attention to the phrases, "CAFE’ EROTICA," "WE DARE TO BARE," "GREAT FOOD," "ADULT TOYS," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, and relatively inconspicuous. As of the date of hearing, the abbreviation "INC." had been painted a different color than it was at the time the violation notices were issued, but otherwise the sign is the same. 9. Affixed to the bottom portion of two of the five poles supporting the foregoing sign is a bright yellow placard which states, "FISH CAMP," with a telephone number. This placard is not nearly as large as the billboard facing and is less visible, but its message also can be seen from I-95. 10. Exit 94, Inc., owns the subject sign(s), but not the real property on which it is located, as more fully described below. 11. The subject sign is located on real property owned by Leo Giannini. Mr. Giannini's real property is not contiguous to real property owned by Exit 94, Inc. 12. Exit 94, Inc., does own eleven acres of non-contiguous real property located about eight miles distant from the subject billboard, near exit 94 of I-95, where Exit 94, Inc., is currently developing a fishing and hunting camp. See, Department of Transportation v. Café Erotica of Florida, Inc. d/b/a Café Erotica/We Dare to Bare/Adult Toys/ Great Food/Exit 94, Inc., DOAH Case No. 00-4188T, etc. 13. Mr. Giannini's subject property is located in the southeastern quadrant of the exit 93 intersection of SR-206 and I-95. At various times, he has rented all, or some part of, this property to Mr. Sullivan's outdoor advertising corporations, Sunshine Outdoor and Interstate Billboards, for the placement of trucks and/or billboards, and to Exit 94, Inc.? 14. Mr. Sullivan testified that he never intended to develop a hunting and fishing camp on Mr. Giannini's exit 93 southeastern quadrant property because it is completely dry, although he once intended to develop a pond on the northwestern quadrant of exit number 93, part of which quadrant is also owned by Mr. Giannini. 15. According to Mr. Sullivan's testimony, Exit 94, Inc., leases Mr. Giannini's subject property in the southeastern quadrant of exit 93, mainly for the advertising which Mr. Sullivan has painted on the window of the abandoned gas station located on the Giannini property, which advertising includes the large words, "Fish Camp," the smaller words, "Guided Tours," and the same phone number as is on the yellow placard affixed to the subject sign. According to Mr. Sullivan, this phone number is provided so that customers can call Exit 94, Inc., to schedule fishing tours to locations other than the camp owned by Exit 94, Inc., at exit 94, which as yet has no fish or pond suitable for fishing. 16. Mr. Giannini's southeastern quadrant property at exit 93, is made up of two contiguous parcels, which he purchased at different times. One parcel is 2.3 acres and contains the abandoned gas station made of concrete, with pumps (tanks removed), and some cracked and weed-encroached concrete parking areas around them. This parcel's entrance is on SR-206, 150 yards to the northeast of the subject sign, and its address is 955 West SR-206, St. Augustine, Florida. 17. The other contiguous parcel owned by Mr. Giannini is approximately 4.5 acres and contains the poles and unpermitted sign which is the subject of this proceeding. This parcel's entrance also is on SR-206, but it has a different entrance than the one for the abandoned gas station. This parcel also bears a different address on West SR-206 than the abandoned gas station. 18. Neither of Mr. Giannini's parcels bears the same address as Exit 94, Inc.'s, occupational/business license from St. Johns County, which is "985 SR-206 West, St. Augustine, Florida." Assuming Exit 94, Inc.'s, license should have read, "985 West SR-206," that still is not the same address as either of the parcels in Mr. Giannini's southeastern quadrant property, Exit 94, Inc., admittedly does no business out of any "985" address. 19. Although Mr. Sullivan testified that Exit 94, Inc., operates out of both the abandoned gas station location at exit 93 and the non-contiguous camp location north of exit 94, corporate records for Exit 94, Inc., indicate the corporation operates out of a physical location at 7605 Southeast Williston Rd., Gainesville, Florida 32608, with a business address of P.O. Box 1069, Micanopy, Florida, 32667. 20. Mr. Giannini signed the current lease with Exit 94, Inc., at the request of the general manager of the Café Erotica restaurant. He also signed the current Exit 94, Inc., lease at the physical location of the Café Erotica restaurant on April 13, 2000. 21. The Café Erotica restaurant currently advertises in the phone book, on its premises, and on a billboard at exit number 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Café Erotica no longer rents billboards in these locations.? 22. The advertisements for Café Erotica restaurant currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. 23. Mr. Giannini thought that in 1999, he had leased space in front of the abandoned gas station on his smaller parcel, to Exit 94, Inc., as a place to park Exit 94, Inc.'s, trucks, but Mr. Sullivan maintained that in 1999, Exit 94, Inc., had rented the space in front of the abandoned gas station on the smaller parcel and part of the larger parcel where Exit 94, Inc., had erected a billboard displaying exactly the same language as is on the current subject billboard. However, it is undisputed that poles which are now empty, but which abut the subject billboard, previously held a lighted billboard owned by Exit 94, Inc., which previous billboard carried exactly the same language as the sign which is the subject of these proceedings. 24. There currently is a dispute between Mr. Giannini and Exit 94, Inc., as to what portion of Mr. Giannini's two contiguous parcels at exit 93 is currently leased to Exit 94, Inc., under a new lease signed on April 13, 2000. Mr. Giannini contends that he leased only the western half of the concrete gas station to Exit 94, Inc., and gave Exit 94, Inc., no authority to construct the subject sign currently on the larger contiguous parcel. However, Exit 94, Inc., contends that it is currently leasing the western half of the concrete gas station, plus a part or "strip" of Mr. Giannini's parcel upon which the subject sign is located. This dispute is currently the exclusive jurisdiction of the circuit court due to Exit 94, Inc.'s filing of a lawsuit claiming Mr. Giannini has denied the corporation access to the leased property. For that reason, and because the testimony herein of the lessor and lessee does not even agree on which real property descriptions were, or should have been, attached to the lease in evidence (P-7 and R-2), the issue cannot be resolved in this forum. 25. Exit 94, Inc., does not intend to, has not, and cannot, provide fishing on the dry parcel(s) at issue. Exit 94, Inc., has taken steps to provide fishing in the future on its own non-contiguous real property, eight miles away, designated as its "hunting and fishing camp," but to date, the pond there is only being filled and is not stocked with fish. 26. The abandoned gas station building on the subject property is only about 25 by 60 feet. It remains locked at all times. Whether one believes Mr. Sullivan that he recently has been locked out by Mr. Giannini or simply believes his testimony that he kept the building locked himself most of the time, it is clear that the inside of the building has seldom, if ever, been used by Exit 94, Inc., except for the placement of a desk and telephone. This finding is supported by the photographs of most of the interior, showing trash, dust, and a single desk pushed into a corner. It is undisputed that Exit 94, Inc., employees have never regularly manned the "office" at this location. 27. There are no public phones or functioning public rest rooms on the property. 28. Mr. Sullivan testified that the phone number he had painted on the window of the abandoned gas station does not ring 10 at that location. Instead, it rings in his truck. If he is out of town, he "sometimes" has an employee or his wife check truck phone's messages.* One can only conclude that Exit 94, Inc.'s, "business" at the subject property is not full-time, important, or primary. 29. The concrete paving surrounding the abandoned gas station on the subject property is breaking up. It has tufts of grass and brush growing out of its cracks. There is general trash and old tires in the area. The concrete paving presents a danger to most motor vehicles which might enter and cannot be reasonably considered "handicapped parking or access" as suggested by Mr. Sullivan. At the present time, stone barriers bar the entrance to the abandoned gas station parcel or at least impede access by most motor vehicles trying to enter this parcel. The greater weight of the credible evidence shows these barriers may be susceptible of being moved temporarily but that they have been in a position blocking that entrance almost continuously since 1994. 30. Exit 94, Inc., has paid $1500 per month in rent to Mr. Giannini each month since June (not April) 2000. Mr. Sullivan admits that, regardless of which business entity rented all or part of Mr. Giannini's property at any given time, the grass has only been mowed twice in two years. Apparently, only the grass around the subject sign was mowed. 11 31. No Exit 94, Inc., inventory is stored on the subject property. If there once were fishing rods and equipment stored in the abandoned gas station which have recently been stolen, as contended by Mr. Sullivan, these items still were not integral to Exit 94, Inc.'s, business, because there is no evidence they were ever rented or loaned to customers. Mr. Sullivan only testified that these items were stored for use by customers for Exit 94, Inc.'s, fishing tours to locations not owned by Exit 94, Inc. 32. Mr. Giannini uses the eastern end of the abandoned gas station building to store items for his own several corporations. He goes by the location almost daily and sometimes at night. He pays the electricity charges for the whole building so that he can use the premises at night. The electric bill has been in his name as long as he has owned the parcel containing the abandoned gas station. Since signing the April 13, 2000, lease with Exit 94, Inc., he has seen no signs of activity by Exit, 94, Inc., on either parcel. 33. Tom Simmons, DOT sign inspector, inspected the subject location for DOT on several occasions over the 18-19 months prior to issuing the notice of violation herein on January 30, 2001. During this period of time, he afforded the benefit of the doubt that some commercial venture was in development at the site and that any advertising on the premises therefore would 12 constitute an on-premises sign, exempt from DOT permitting and subject to regulation only by St. Johns County. 34. Mr. Simmons became aware of the subject sign when it was under construction about September 8, 2000. At that time, he assumed that the premises would become operational for Exit 94, Inc., because he understood that Exit 94, Inc., had applied for a St. Johns County building permit involving electrical and plumbing connections at that location. However, he inspected the subject location on September 8, 2000, January 3, 2001, January 23, 2001, and January 30, 2001, and never saw any business activity or productive enterprise. 35. James L. Acosta is the Supervisor of Code Enforcement for St. Johns County. He inspected the subject property in September 2000, November 2000, January 2001, and on April 4, 2001. At no time has he observed any business activity or productive enterprise on the property. He has recently issued a violation citation to Mr. Giannini, as the owner of the real property, requiring him to remove the subject sign. 36. St. Johns County has never issued a building permit for the subject sign. 37. Testimony and business records of charges by, and payments to, Exit 94, Inc., demonstrate only that other business entities controlled by Mr. Sullivan or his family members have paid for some use of the real property owned by Exit 94, Inc., 13 and designated as its "hunting and fishing camp," which property is not contiguous to the subject property. (See Finding of Fact 12.) It was not proven that any fishing tours embarked from the subject property to the owned property or to any other location. There was no affirmative evidence of where the other alleged fishing locations might be. The business records bore the Micanopy address of the corporation. (See Finding of Fact 19.) It was not demonstrated that the business records were stored at the subject property. 38. There is no evidence that any member of the general public has utilized Exit 94, Inc.'s, hunting and fishing services, and due to the relationship of Exit 94, Inc.'s, recorded "customers" to Mr. Sullivan and his various corporations, it may be inferred that none of these "customers" were procured, lured, enticed, or secured by the advertising or his telephone number on the window of the abandoned gas station or on the subject sign. 39. Exit 94, Inc., currently operates at a loss, made up as necessary by personal loans from Mr. Sullivan. 40. Exit 94, Inc.'s business records suggest that its only expenditures at the subject location have been for rent and construction of the subject sign and that all its other expenditures have been for its trucks and its owned real property located at exit 94. There was no affirmative 14 demonstration that any other expenditures were specifically linked to the subject location. 41. Exit 94, Inc., failed to demonstrate what the minimal level of meaningful activity customary for a hunting and fishing corporation might be, and further failed to demonstrate that a minimal level of activity had occurred at the subject location. 42. Exit 94, Inc., attempted, through two examples, to show that Mr. Simmons's original determination not to cite the subject sign and DOT's determination not to cite certain other signs in the vicinity constituted a custom and usage of the agency, which custom and usage, if applied in this case, would cause the subject sign to be considered an on-premises sign. "Bulls Chip" signs on Bulls Chip trucks and farm equipment parked on real property owned and contiguous to the Bulls Chip factory, were not charged with sign violations because DOT viewed these as on-premises signs. A "Smiley's" truck parked in a flea market parking lot where the truck owner owned and/or leased space to sell specific items under the name on the truck was originally considered an "on-premises" sign by DOT personnel and not cited. When it was determined that the truck owner no longer had business activity or ownership rights at the site, the "Smiley's" truck was cited. These examples are clearly distinguishable from the instant situation. 15
Conclusions That the Department of Transportation enter its final order declaring illegal the subject unpermitted sign owned and maintained by Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., and ordering removal of the sign in accordance with a reasonable time frame to be determined by the Department. 23 A DONE AND ENTERED this ce day of July, 2001, in Tallahassee, Leon County, Florida. Gilhel deun ELLA ‘JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this Lafy day of July, 2001.
Findings Of Fact SR 37 in the vicinity of Respondent's sign is a federal-aid highway. Respondent's sign consists of panels mounted on steel pipes attached to the bed of a pickup truck which is parked daily near the intersection of Brannon Road on which Respondent's principal place of business is located. This business is not visible from SR 37 and an orange arrow on the sign points in the direction of Respondent's combined factory and store. The sign and truck on which the sign is mounted, at a recent inspection, was located 74 feet north of Brannon Road and 60 feet from an existing, permitted sign on the same side of the highway facing in the same direction. Prior to placing the sign on the pickup truck, Respondent had a fixed sign in the vicinity advertising and pointing to the combined factory and store where outdoor furniture is manufactured and sold. Removal of this unpermitted sign was demanded by DOT. The instant sign serves to replace the former sign. No permit has ever been issued for this sign. Another sign on the same side of the highway and facing in the same direction as Respondent's sign is located within 1000 feet of Respondent's sign. This other sign is a lawfully permitted sign for which tags have been issued. Respondent's owner testified that he pays the owner of the land on which he parks the truck with the sign at issue a monthly rental for the right to use the land. No written lease for use of this site has been executed. The truck providing a platform for the sign at issue is driven to the site each morning and removed at dusk each evening. Respondent contends this truck serves as a retail outlet for the outdoor furniture it makes and that such furniture is sold at the site. Respondent also contends that the site is manned at least one-half of each day. However, this testimony is not credible for the reasons below. Respondent has four employees--the owner, the owner's wife, a sales employee and a factory employee. It is the duty of the factory employee to place the truck on the site, place the furniture near the truck and at dusk remove the furniture and the truck from the site along SR 37. Neither the owner, his wife nor the sales employee man the truck at the site. This leaves the factory employee who, presumably, is the man primarily involved in assembling the furniture to be sold, to put in one-half of each day at the pick- up taking orders for furniture. Exhibit 5 consists of some 51 sales slips for furniture alleged to have been sold from the pickup from May 3 to October 25, 1986. Approximately 6 of those invoices leave blank the space headed SALESMAN. Twenty-nine of those invoices show DZ as the salesman and 17 show DS as salesman. Of those 17 sold by DS 9 sales occurred on October 11 and October 18. All of those invoices show the address of the business to be on Brannon Road. No evidence was presented regarding the identities of DZ and DS. Thomas F. Zink is President of Sunshine Patio Shops. Respondent presented Exhibit 6, an occupational license for a dealer in tangible personal property whose business is located at 553 Brannon Road. Exhibit 4 is a photograph of the truck, sign and furniture displayed alongside the truck which was submitted by Respondent. This photograph shows the furniture all connected by a chain which presumably is fastened to the truck. This has the effect of providing security from theft of the furniture. Such security would not be needed if the site is manned while the furniture is displayed.
The Issue Whether the sign of Petitioner should be removed for violation of Section 479.11(7) and Rule 14-10.07(2)(e), maintaining a sign in an unsafe, insecure or unsightly condition and without face or topic for over twelve months.
Findings Of Fact A notice of violation and notice to show cause alleging violation of the statutes and rules under Chapter 479, Outdoor Advertising, was sent to Petitioner February 16, 1978, citing a structure located .24 miles east of State Road 44 w/s on Interstate 4 with "blank" copy. Petitioner requested an administrative hearing. There was no dispute as to the location of the subject sign or that subject sign had carried no copy for a period of time beginning before October, 1975 and continuing until sometime immediately prior to March 13, 1978, at which time the sign structure was cleaned and an outdoor advertising copy placed thereon. The sign structure carries permit tag number 4836-10, 1974. The proper fee has been paid to keep the tag current. Petitioner contends: that the statute, Section 479.11 (7), is unconstitutional because it is vague; that Rule 14-10.07(2)(e), is a "prospective rule"; and, that Petitioner's sign is not in violation of the rule inasmuch as the effective date of the rule was December 10, 1977, that the sign currently is in violation of no law. Respondent contends: That the sign has stood along the side of the highway in a rusted and unsightly condition, without copy for a period in excess of three years and that the rule is applicable; that the Petitioner's sign has lost its "grandfather status", which allows a sign that does not conform to current laws to stand until compensation for such sign has been paid to the owner.
Recommendation Dismiss the complaint against the Petitioner. DONE AND ENTERED this 21st day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gerald S. Livingston, Esquire 217 North Eola Drive Post Office Box 2151 Orlando, Florida 32802 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to this proceeding, Respondent was a closely held corporation owned and operated by Salvatore Studiale and his family, including his wife, Celia, their son Jack Studiale and their daughter, Caroline Greenlaw. Respondent owns and operates Tropical Acres Steak House, a restaurant located in Broward County, Florida. Respondent erected a sign in 1975 in Broward County ninety feet north of Griffin Road adjacent to I-95 that is the subject of this proceeding. In a 1976 proceeding involving the same parties to this proceeding, Petitioner cited the same sign that is the subject of these proceedings for having been erected without certain permits in violations of Sections 479.02, 470.07(1), and 479.111(2), Florida Statutes (1975). Thereafter the case was referred to the Florida Division of Administrative Hearings (DOAH) and assigned DOAH Case No. 76-473. A formal administrative hearing was held in Case No. 76- 473 by a DOAH Hearing Officer who entered a Recommended Order. The following findings of fact, taken from the Recommended Order entered in Case No. 76-473, are consistent with the evidence presented before me and are hereby adopted as my findings of fact: In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 8, 1975. The property deeded to Broward County was of a value of approximately $18,000. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks [and] Seafood 1/2 Mile". Investigation by Petitioner's representatives in the Spring of 1976 revealed that no state permit had been applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee". The Hearing Officer in Case 76-473 concluded that the subject sign was exempt from Petitioner's permitting requirements: ... because Section 479.16(11)1/ excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" (sic) adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls with the exception stated above. The Hearing Officer in Case No. 76-473 recommended that "the allegations against Respondent be dismissed". Thereafter on August 12, 1976, Petitioner entered a Final Order in Case 76-473 which found that the findings of fact and the conclusions of law contained in the Recommended Order were correct and adopted the Recommended Order as its Final Order. The site of the subject sign had been the location of a gasoline service station before the Studiales purchased the property. When the sign was erected, the site was located in unincorporated Broward County. In July 1990 the site was annexed so that at the time of the formal hearing the sign was located within an incorporated municipality. In 1978, Respondent's sign was damaged by a wind storm. With Petitioner's approval, the sign was restored. On June 13, 1991, Petitioner's investigators inspected the subject sign. At an undetermined time between 1978 and June 13, 1991, a strip was attached to the supporting posts beneath the main faces of the sign so that two additional sign faces, one facing north and the other south, were created. The message that was placed on each face of this smaller sign was "1/2 Mile West" together with directional arrows. This addition was for the purpose of directing traffic to Respondent's restaurant, which was located 1/2 mile west of the sign. The directional message on each face of the smaller sign was removed prior to the formal hearing that was held in this proceeding. No permit for the sign has been applied for by Respondent or the Studiales and no permit has been given by Petitioner. Petitioner does not charge any permit fee for a sign unless a permit has been issued. There was a dispute as to whether Respondent had been charged and had paid annual fees for the subject sign. The greater weight of the evidence establishes that in 1986 and 1987 Respondent received billings from Petitioner for the subject sign as a result of computer error and that Respondent paid those billings. It is clear, however, that the Studiales were aware that no permit had ever been issued for this sign and that they relied on the determination made in Case 76-473 that the sign was exempt from permitting. Respondent has attempted to establish that it has placed great reliance in making its business plans on Petitioner's representations and assurances that the subject sign was a legal structure. Although it is clear that the subject sign is important to Respondent's business because it serves to direct customers to the restaurant location, Petitioner's delay in challenging the legality of the sign has not prejudiced Respondent. Respondent has been benefitted by the continued existence of the subject sign. The size of the sign exceeds 10 square feet. On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for the subject sign, based on its determinations that the sign was not exempt from pertinent permitting requirements, that it did not have a permit, and that it was improperly spaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that the status of Respondent's sign is "nonconforming" and which rejects Petitioner's contention that the sign is illegal. DONE AND ORDERED this 2 day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of April, 1992.
The Issue Based upon the testimony received the primary issue Is whether the poles were erected before the highway, I-10 was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact The subject sign is located one mile east of State Road 71 on I-10. This sign was inspected on October 22, 1980, by an inspector of the Department of Transportation, who observed that the sign's message was visible from the main traveled way of I-10 and did not bear the permit required by Chapter 479, Florida Statutes. At the time of this inspection, I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The sign was located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, a name plate identifying Henderson Signs as responsible for the sign was attached to the sign. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See file, Case No. 81-101T. The foregoing facts establish that the subject sign is a sign regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the sign. Gene Henderson testified concerning the erection of the poles and the attachment of a sign face to the poles. The sign poles were erected during the latter portion of 1975, and a sign face advertising "Shell Food Store" was affixed to the poles on March 30, 1978. In February, 1980, the sign face was changed to one advertising "Jon's Steak House." The sign is owned by Henderson Signs, which erected the poles prior to the time I-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject sign is located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 6, an aerial photograph of the section of I-10 along which the subject sign is located. This photograph bears the number PD 1996 and is Sheet 9 of 28 sheets taken on December 29, 1976. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the sign one mile east of SR 71 on I-10. The photograph was examined by the Department's engineer, who did not observe the presence of poles or an outdoor advertising sign at the location. The photograph was taken nearly one year after the date Henderson stated the poles were erected but does not reveal the presence of the poles. Even if one assumes they were erected, a sign face was not attached until March 30, 1978, several months after I-10 was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within 30 days and without compensation to the sign's owner. DONE and ORDERED this 16th day of September, 1981, 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 16th day of September, 1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
