Findings Of Fact On July 20, 1987, a DOT sign inspector observed a portable outdoor advertising sign along U.S. 19 near the intersection of 108th Street North in Pinellas County which appeared to be located on the DOT right-of-way. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the edge of the paved lane. Measurements taken showed the sign to be 38 feet from the edge of the pavement. Photos taken of the sign at the time the sign was inspected reveal that the sign was damaged with the frame bent. Around noon of the day the sign was inspected, Respondent was notified by the user of the sign that the sign's frame had been bent and the sign damaged. A second call to Respondent around 1:30 P.M. advised that a warning notice had been placed on the sign. When Herb Selak arrived at the scene shortly thereafter, he observed the anchor missing from the sign and the sign damaged apparently having been hit by a construction company vehicle and pushed off of the parking lot where it had been located and anchored. Prior to the unauthorized removal of the sign onto the right-of-way by a third party, the sign was lawfully placed.
Findings Of Fact Respondent is the owner of a sign located alongside I-4 25.03 miles east of U.S. 301 (Exhibit 2). This sign is located outside the city limits of Lakeland, Florida, and is within ten feet of the beginning of the transition of pavement going to the off ramp from the I-4. When inspected in September, 1978, the sign did not have a permit affixed thereto and the records of Petitioner do not indicate this sign has ever been permitted. In 1978 the panels on this sign read "Hilton Inn." When inspected on 25 October 1982, the photograph (Exhibit 1) was taken. This photo shows the panels are missing and the Hilton Inn message does not appear.
Findings Of Fact Respondent, Arrowhead Campsites, owns a sign located one mile east of State Road 71 on Interstate Highway 10 in Jackson County, Florida. The sign is located 139 feet from the edge of the highway, and is clearly visible from the main traveled portion of that highway. At the time of the petition in this case, no permit tag was located on the sign, and, additionally, no permit tag was on the sign when last inspected on October 2, 1978, four days prior to hearing in this cause. Respondent, Arrowhead Campsites, owns a sign located .6 miles west of State Road 69 on Interstate Highway 10 in Jackson County, Florida. This sign is clearly visible from the main traveled portion of the roadway, and is located 188 feet from the edge of the roadway. In addition, the sign is located 240 feet from an interchange on Interstate Highway 10. At the time the petition in this cause was filed on March 28, 1978, no permit tag was located on the sign, and, further, no permit tag was located on the sign on October 2, 1978, four days prior to the hearing in this cause. Both the sign located one mile east of State Road 71 on Interstate Highway 10 and the sign located .6 miles west of State Road 69 on Interstate Highway 10 bear copy advertising Arrowhead Campsites. Both of the signs in question are located outside any incorporated city or town. Any proposed findings of fact submitted by Respondent and not incorporated in this recommended order are specifically rejected.
The Issue Whether Respondent has violated Sections 479.07(1),(4),(6) and 479.11(1),Florida Statutes. At the hearing, it was announced that the signs in question are owned by a partnership known as Henderson Signs, Don Henderson and Gene Henderson being partners thereof. It was stipulated that the above-captioned cases would be consolidated for hearing and that Henderson Signs had been notified of the violations and was prepared to proceed with a hearing. The stipulation was accepted by the hearing officer and the caption of the case amended to show Henderson Signs as Respondent.
Findings Of Fact 1. It was stipulated by the parties that the two signs in question are owned by Respondent and are located as indicated on Exhibit 3 as follows: The Circle D. Ranch sign is located 9/10 of a mile east of the east lane of State Highway 81 and 85 feet south of the right-of-way fence of Interstate Highway I- The Arrowhead Campsite sign is located 1.1 miles east of the east lane of State Highway 81 and 190 feet south of the right-of-way fence of Interstate Highway I-10 (Exhibits 1,2,3 & 4, Testimony of Williams, Jordan). No state permit tags are affixed to the signs and they are not located in a zoned or unzoned commercial area as determined by physical observation (Testimony of Mr. Williams). The signs are located outside any incorporated city or town (Exhibits 3 & 4, late-filed Composite Exhibit 5, Testimony of Mr. Williams, Mr. Jordan).
Findings Of Fact On or about July 31, 1987, a DOT sign inspector observed Respondent's sign apparently on the right-of-way of U.S. 19, 1000 feet south of Sunset Road in Pasco County. The right-of-way of U.S. 19 at this location on the east side of U.S. 19 extends 32 feet from the eastern edge of the paved lane. The sign was located 25 feet from the eastern edge of the paved lane. Respondent admitted that the sign was in the right- of-way the day the inspector was there, but was relocated there without their knowledge or consent by the contractor paving the parking lot. Davis Center gave Respondent permission to place their sign (Exhibit 2 and 3) on its property. The center is in the process of repaving its parking area in stages so as not to block off all parking at one time. To clear the area for the paving equipment the contractor moved Respondent's sign to the grassy area alongside the parking lot. As soon as Respondent learned its sign had been placed on the right-of-way, it removed the sign from the right-of-way.
Findings Of Fact A Department of Transportation (DOT) Outdoor Advertising Inspector was doing an inventory, during May, 1987, on U.S. 231, in Jackson County, Florida, when he observed a sign that was visible from the main traveled way of the highway that was not on the sign inventory as being permitted. U.S. 231 is a federal-aid primary highway. The location is 1.78 miles south of SR 73, on the west side of U.S. 231, (southbound side ), and is 32 feet from the right edge of the southbound lane (U.S. 231). The restaurant the sign is advertising is located to the south of the sign, on the east side of U.S. 231, (northbound side). Mr. and Mrs. Cintron purchased the restaurant in October, 1985, and considered subject sign part of the business. The sign in question was erected during the summer of 1985 by the original owner. The Department's Inspector certified that said sign was removed by 6/11/87. There is one business, within 800 feet of the sign site, on the west side, a Gulf station that contains a convenience store and tire store in the same building on the same premises. The sign site is located in an unzoned area within the city limits of Cottondale, Florida. There is a repair business on the west side of the highway and a septic tank business on the east side of the highway. Both businesses are north and in excess of 1600 feet from the site in question.
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 sign in question located on U.S. 231, 1.78 miles south of SR 73 East, in Jackson County, Florida, was in violation of the statutes for not having a state sign permit, was properly removed, and does not qualify for issuance of a permit. DONE AND ORDERED this 27th day of October, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2242T The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DEPARTMENT OF TRANSPORTATION DOT's proposed findings of fact 1-3 are adopted in substance as modified in Findings of Fact 1-3. COPIES FURNISHED: Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Eva F. Cintron, Pro Se Post Office Box 56 Cottondale, Florida 32431 Vernon Whittier, Jr., Esquire Rivers Buford, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact On December 9, 1986, Respondent owned a sign that had recently been erected along the west side of U.S. 19 in Pasco County, Florida, 37 feet from the nearest edge of the pavement. The DOT right-of-way at this location extends 88 feet west of the western edge of the pavement of U.S. 19. Upon seeing the DOT sign inspector in the vicinity of the sign, an employee of Respondent came to the scene, saw the violation notice posted and offered to relocate the sign off of the right-of-way. The sign in issue was relocated off of the DOT right-of-way within ten days of the notice of the violation. U.S. 19 at this location is a part of the State Highway System.
Findings Of Fact Henderson Signs is a partnership which was initially owned and operated by Ladon Henderson and his wife, Margie Henderson. When Ladon Henderson became inactive, his son, Gene Henderson, became a partner and he now operates the business with Margie Henderson. Henderson Signs has been licensed by the Department of Transportation to engage in the outdoor advertising business since before the year 1976. This license was renewed annually as required, and Henderson Signs now holds Outdoor Advertising License Number 20157 reissued on November 16, 1982. Henderson Signs has operated in Washington, Gadsden and Jackson Counties, but in July of 1981 this business was sold to Tri-State Systems, Inc., and pursuant to the terms of this sale Henderson Signs may not now engage in the outdoor advertising business in these three counties. It may, however, operate elsewhere. Between the years 1978 and 1981 Henderson Signs has received 17 notices of violations from the Department of Transportation charging that signs at 20 locations on Interstate 10 in Jackson County were erected illegally. This resulted in the opening of 22 dockets in the Division of Administrative Hearings to litigate administratively the charges against Henderson Signs. In 14 of these dockets the findings and conclusions resulted in a determination that Henderson was guilty as charged. Some of these guilty findings were appealed to the District Court of Appeals, where they were affirmed on the merits. Some were affirmed by per curiam opinions. Ten other cases have been docketed in this Division involving signs now owned by Tri-State Systems, Inc., pursuant to the sale by Henderson Signs. (This data has been taken from exhibits 1 and 2 offered by the Department.) This evidence demonstrates that the Respondent has repeatedly erected outdoor advertising signs along Inter-state 10 in Jackson County which were found to be illegal signs because of spacing violations, zoning violations, or lack of the required permit authorizing their erection. The legal position of Henderson Signs in many of the cases where administrative hearings were requested subsequent to the service of Notices of Violations, was that no state permits were necessary for varying reasons, one of which was that Interstate 10 had not become a part of the United States Interstate Highway System because it had not been opened to the public. Findings of not guilty were made in one Division of Administrative Hearings docket involving three sign violations, because of a failure of the evidence to prove that Interstate 10 was open to the public. (Data taken from exhibit 2 offered by the Department). The Administrative Procedure Act, Chapter 120, Florida Statutes, affords parties whose substantial interests are affected by actions of Administrative Agencies the right to a hearing to resolve disputed issues. Henderson Signs utilized the provisions of this Act. When the disputes were resolved against the contentions of Henderson Signs, by agency order or by the Court after appeal, it removed the signs that were the subject of these proceedings. The Department of Transportation has never had to remove a Henderson sign for failure of the Respondent to comply with a final order determining it to be illegal. The Respondent contends that a genuine issue existed regarding the necessity of securing a permit prior to the erection of a sign along the site of Interstate 10 in Jackson County, until the time it became a part of the Federal Interstate Highway System by being opened for public traffic. There is no evidence from which a finding of fact can be made as to precisely when Interstate 10 in Jackson County was opened and in use by the public. The formal ceremony opening Interstate 10 was held in November of 1978. During the time between the erection of a sign by the Respondent and the order that it be removed after a determination that it was illegal, Henderson Signs received rental payments from the sign advertiser. Subsequent to July of 1981, when the Respondent sold its sign business in Jackson County, there have not been any notices of violation issued to Henderson Signs by the Department of Transportation.
Recommendation From the foregoing, Findings of Fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Henderson Signs be dismissed. THIS RECOMMENDED ORDER entered on this 21 day of July, 1983, 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 21st day of July, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building; M.S . 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On July 15, 1987, the DOT sign inspector observed a sign owned by Respondent in front of McDonald's restaurant on what appeared to be the right- of-way along the western side of U.S. 19, 800 feet south of Lime, in Pinellas County. The DOT right-of-way along U.S. 19 at this location extends 100 feet eastward of the centerline of U.S. 19. The right-of-way line on the western side of U.S. 19 at this location is 55 feet from the westernmost edge of the southbound lanes. Measurements taken from the pavement edge to the sign located the sign 48 feet from the edge of the pavement, which is 7 feet inside the right of way line. When a permit for this sign was obtained by Respondent from the City of Tarpon Springs Planning Department, a sketch accompanying the application (Exhibit 5) located the sign 30 feet from the edge of the pavement of U.S. 19. When cited for being on the right of way, this sign was located further from the pavement of U.S. 19 than landscaping shrubs planted and tended by McDonald's in front of the restaurant. For these reasons, Respondent assumed the sign was legally positioned. The location of the DOT right of way is not readily determinable by a businessman desiring to erect a sign in front of his business. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of location of the limit of the right-of-way. This is specifically true where additional right-of-way has been acquired by DOT along U.S. 19 and other highways. Upon being notified of the citation of this sign for being located on the right-of-way, Herb Selak, owner of Don's Porta Signs, rode up and down U.S. 19 and observed numerous signs located inside the power pole lines which had not been cited. Photographs of those signs were admitted into evidence as Exhibit A written list of those signs provided by Selak for DOT was admitted as Exhibit 10. Selak also observed a DOT vehicle parked in a restaurant parking, and he pulled in and observed one sign inspector emerge from the restaurant with another person and point out the portable sign in front of the restaurant. A photo of this sign showing it to be inside the power pole line was admitted into evidence as Exhibit 9. This sign was not cited by the inspector. Selak made an appointment and proceeded to Bartow to discuss the citing of his signs for violating the right-of-way. He gave a copy of Exhibit 10 to the chief of the outdoor advertising section for DOT District I. Most of these signs were subsequently cited by the DOT inspector for being on the right- of- way. Where signs are located on newly acquired right-of-way, the department takes the position that the sign owner be notified that the sign is in the right-of-way, and he is entitled to a reasonable time in which to remove the sign therefrom.
Findings Of Fact A DOT sign inspector observed a portable type sign in front of Respondent's automobile dealership on what appeared to be the right-of-way along the east side of U.S. 19. The arrow on the sign pointed to Respondent's business and electrical lines to the sign emanated from Respondent's property. The right-of-way along U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19. The easterly edge of the right-of-way at this location is 50 feet from the easterly edge of the north bound traffic lane. Measurements made by the inspector revealed the sign to be located 38 feet from the easternmost edge of the northbound lane of U.S. 19, thereby locating the sign 12 feet inside DOT's eastern right-of-way line.
