The Issue The central issue in this case is whether the Respondent is entitled to a sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether the sign which has been erected at that location is in violation of applicable provisions of Chapter 479, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs. The Respondent owns or controls an outdoor advertising sign (subject sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the centerline of I 4. The sign face and direction of the subject sign are visible from I 4 following that route as it is normally traveled, i.e. on the main-traveled way. The subject sign is no more than 480 feet from the interchange at Fairbanks and I 4. The subject sign was erected in June, 1979, when SR 424 was not designated a federal aid primary road and a state permit was not required. On May 17, 1979, the Department's then district sign coordinator issued a letter to Respondent in response to Creative Media's sign permit application which provided that "a state permit is not required at this time." (e.s.) The Respondent's application in 1979 specified that the sign location was not within city limits which is presumed true for purposes of this record. Further, the 1979 application specified that the sign would be located .1 of a mile (presumably 528 feet) from the intersection. That description of the proposed sign is also presumed true. Subsequently, Fairbanks became a part of the state highway system and a requirement for outdoor advertising permits for signs erected along that roadway became effective. The sign face for which the present permit is sought is within 500 feet of the I 4 interchange. On January 30, 1990, Inspector Dollery photographed the subject sign which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental Apartments at Heathrow". When Inspector Dollery visited the location on January 3 and 4, 1991, the sign face was painted white with only a telephone number (425-5100) depicted. On February 5, 1990, the Department's current district outdoor advertising administrator issued a notice of alleged violation regarding the subject sign. On February 26, 1990, the Respondent filed an application for a permit for the sign face in dispute. The 1990 application acknowledged that the sign was 480 feet from the I 4 intersection. The Department returned the application as not meeting the spacing requirements for signs facing I 4 and for being less than 500 feet from the interchange. POA Acquisition, an outdoor advertising company, holds permits for signs located on I 4 which are within 1500 feet of the subject sign.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign in violation of the rule as set forth in the notice of alleged violations dated February 5, 1990, and denying the permit application of the Respondent. DONE and ENTERED this 22nd day of April, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1991. APPENDIX TO CASE NO. 90-2193T RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 3 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: The six unnumbered paragraphs are addressed in the order presented. The first paragraph is accepted. The second paragraph is accepted. The first sentence of the third paragraph is accepted. The second sentence of the third paragraph is rejected as contrary to the weight of the credible evidence or irrelevant if intended to establish that a DOT official told Mr. Fekete to retain paperwork. The fourth paragraph is rejected as contrary to the weight of the credible evidence. If the sign had been constructed as represented on the application, the fifth paragraph could be accepted; however, Respondent did not build the sign as stated in the 1979 application nor can it be determined from this record whether the spacing requirements along I 4 could have been met in 1979. Certainly, for a sign facing on Fairbanks, the spacing requirements could have been met. The distance from the interchange is ultimately why Respondent's application would have failed in 1979 if accurately requested. Consequently, as drafted, the fifth paragraph must be rejected as contrary to the weight of the evidence. The sixth paragraph is accepted. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida 32801 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S.58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On September 1, 1980, Bill Salter Advertising, Inc., executed a lease agreement with Edward M. Chadbourne to erect outdoor advertising signs facing north and south on the Chadbourne property 190 feet east of the intersection of State Road 742 and State Road 291 in Escambia County, outside the city limits of Pensacola. This lease was renewed for calendar year 1981-1982 and calendar year 1982-1983. The third renewal expires on August 31, 1983. On August 4, 1981, Bill Salter Advertising, Inc., applied to the Department of Transportation for permits to erect outdoor advertising signs located 190 feet east of the intersection of State Road 742 and State Road 291 facing north and south. At the time of this application, Bill Salter Advertising, Inc., held the property under the above lease. On August 17, 1981, the Department of Transportation approved the application for permits. On April 15, 1982, Bill Salter Advertising, Inc., executed an affidavit to cancel its permits at the location 190 feet east of State Road 742 and State Road 291 facing north and south in order to get a more advantageous position for the erection of an outdoor advertising sign. On February 23, 1982, Bill Salter Advertising, Inc., executed a lease agreement with Felix Bell to erect outdoor advertising signs on the Bell property at a location on State Road 291, 190 feet east of the intersection of State Road 742 and State Road 291 in Escambia County, outside the city limits of Pensacola. On April 12, 1982, Bill Salter Advertising, Inc., applied to the Department of Transportation for permits to erect signs facing north and south on State Road 291, 190 feet east of the intersection of State Road 742 and State Road 291. At the time of this application, Bill Salter Advertising, Inc., held the property under the Bell lease. On April 27, 1982, the Department of Transportation approved this application for permits. On October 12, 1982, the Petitioner, Lamar Advertising Company, applied to the Department of Transportation for permits to erect outdoor advertising signs on State Road 291, 218 feet north of State Road 742. This location is not a Federal-Aid Primary or Interstate Highway, and it is outside the city limits of Pensacola, in Escambia County. As such it is subject to the spacing requirements of the Escambia County ordinance regulating outdoor display advertising. Such application was submitted by the Petitioner, Lamar Advertising Company, after Bill Salter Advertising, Inc., had cancelled its permits at the location, 190 feet east of the intersection of State Road 742 and State Road 291, and after the Department of Transportation had approved the application for permits submitted by Bill Salter Advertising, Inc., for locations 190 feet east of the intersection of State Road 742 and State Road 291 on the Felix Bell property. The location for which Lamar Advertising Company seeks permits is less than 500 feet from the permitted locations of Bill Salter Advertising, Inc., at 190 feet east of the intersection of State Road 742 and State Road 291.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Lamar Advertising Company for permits to erect signs facing north and south on State Road 291, 218 feet north of State Road 742, in Escambia County, Florida, be DENIED. DONE and RECOMMENDED this 18th day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1983. COPIES FURNISHED: P. Michael Patterson, Esquire 905 West Moreno Street Pensacola, Florida 32501 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32501 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Respondent owns a sign within 660 feet of the I-4 erected alongside SR 424A (Fairbanks Avenue) outside the corporate limits of Orlando or Winter Park, Florida, on the east side of I-4, an interstate highway. The sign is visible from the I-4 and the face of the sign is nearly parallel to the I-4. The sign is located within the interchange of the I-4, i.e., it is located within two lines running easterly and perpendicular to the commencement of the off ramp and end of the on ramp of the I-4 at the Fairbanks Avenue intersection. The I-4, which is considered to be an east-west highway, runs in a northwesterly-southeasterly direction where it crosses over Fairbanks Avenue, which runs generally east and west at this point. Respondent's sign is located in the vicinity (within 200 to 500 feet) of several signs erected by Peterson Advertising Company before 1971 and which are now permitted as nonconforming signs. These signs are erected along the curve of the eastbound (which at this location moves in a northwesterly direction) off ramp and are at varying angles with the I-4, but all can be seen from the I-4. Respondent's sign can be seen by both east and westbound traffic on the I-4; however, it is closer to the eastbound lane of traffic. Before the construction of this sign was completed, Respondent was advised the sign would not be permitted because it was within 1,000 feet of another sign on the same side of the I-4 facing in the same direction and within 500 feet of the interchange.
The Issue Whether Petitioner, National Advertising Company, is entitled to the issuance of a vegetation control permit for its south-facing advertising billboard located West of Interstate I-75, in Lee County, Florida.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system, including interstate highways. Construction of Interstate 75 in the relevant area of Lee County, Florida, was completed and accepted by the DOT on or about February 22, 1979. On March 10, 1980, the Florida Department of Transportation issued an outdoor advertising sign permit to Florida Outdoor for a billboard to be located adjacent to I-75, .25 miles north of the intersection of I-75 and State Road 82 in Lee County. The billboard was constructed and the billboard structure, together with the sign permit, was acquired by Petitioner in May of 1982. Petitioner holds a current valid sign permit, DOT sign permit number AB-118-10, for the above sign. Said sign is a non-conforming sign under the Rules of the DOT and cannot be moved or raised. Petitioner submitted a properly completed application for a vegetation control permit to the DOT on February 4, 1991. Petitioner's sign board does not have five hundred feet of exposure along the interstate highway within a one thousand foot window and is therefore a screened board under the provisions of the DOT's rules. Following review of the application by the District Roadway Maintenance Engineer, it was determined that the area covered by the vegetation control permit was within an area specifically preserved during the construction process which prohibits any pruning, trimming, or removal of trees, shrubs, or vegetation in that area. Based on that determination, the permit was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the vegetation control permit requested by National Advertising Company on I-75 (S.R. 93) in Lee County, Florida, should be GRANTED, pursuant to the provisions of Chapter 14-13, Florida Administrative Code. DONE AND ENTERED this 30th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th December, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. National Advertising's Proposed Findings of Fact: Accepted in substance: paragraphs 1,2,3,4 (in part) 5,6 (in part), 8,10. Rejected as irrelevant or immaterial: paragraph 4 (in part-coverage in Preliminary Statement), 6 (in part), 7,9,11. Rejected as a conclusion of law: paragraph 12,13. Department of Transportation's Proposed Findings of Fact: Accepted in substance; Stipulation of Facts; paragraphs 1 (in part), 2 (in part). Rejected as conclusions of law: paragraphs 1 (in part), 2 (in part). Copies furnished: Gerald S. Livingston, Esquire Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact The Petitioner has applied for a permit, and proposes to erect an outdoor advertising sign on the east side of Interstate 110, 1.5 miles north of Fairfield Drive in Escambia County, Florida. This sign would face east and west, with the copy on the face which is the subject of this proceeding facing west. Interstate 110 is a north-south highway at the point where the Petitioner's sign is proposed to be erected. The Department of Transportation has issued two permits to Lamar Advertising for an outdoor advertising sign located on the east side of I-110, approximately 320 feet north of the site of the Petitioner's proposed sign. These Lamar Advertising permits are for the north face and the south face of the Lamar sign which can be read by traffic traveling both north and south on I-110. Although the Petitioner's proposed sign would face west, the copy would be visible to northbound traffic on I-110 and to some extent to southbound traffic there. The Petitioner's sign as proposed could be seen by the same traffic as can see the Lamar Advertising sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of A. Barry Shuck, d/b/a Designs Custom Signs, for a permit to erect an outdoor advertising sign on Interstate 110, 1.5 miles north of Fairfield Drive in Escambia County, Florida, be DENIED. THIS RECOMMENDED ORDER entered this 16th day of September, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 132301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1985. COPIES FURNISHED: Mr. A. Barry Shuck Designs Custom Signs 102 Pine Court Pace, Florida 32570 Charles G. Gardner, Esquire Haydon Burns Bldg. M.S. 58 Tallahassee, Florida 32301-8064 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1670T and 81-1671T are located on the south-facing wall of the "27th Avenue Market" at 2742 SW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) investigated the signs at the 27th Avenue Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling north on 27th Avenue and are located near the right-of-way. Both signs bear the logo "Empire", and Respondent acknowledges owning the signs. The inspector's investigation of the 27th Avenue Market signs also revealed the existence of a permitted outdoor advertising sign owned by another sign company, which is located approximately 117 feet south of the Empire signs and also faces south. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the 27th Avenue Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal- Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. A lease was entered into between Peppi Advertising Company and the owner of the property on May 2, 1958, to place signs on the wall at 2742 SW 27th Avenue. The firm obtained a building permit on May 5, 1958, for the erection of two signs six by 12 feet on the side of the building located at 2742 SW 27th Avenue. The Vice President testified it was company procedure to erect signs a week or two after the lease was entered into, but he did not observe the signs in question being put up. He further testified the signs were up when he went back to post them. The signs in question were erected in 1958, and have been in existence since that date. No permits for the signs in question were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question on July 15, 1982, showing advertising copy to consist of Newport Cigarettes and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Strohs Beer and EverReady Energizer Batteries. The above items are products of national companies who pay Empire to advertise their products. Empire pays the 27th Avenue Market for the privilege of placing the signs in question on the side wall of the market. The signs in question are not on-premise signs. Patrick D. Calvin, the Department's Administrator for outdoor advertising, testified concerning agency policy. It is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department's admitted policy is that a lawfully erected sign may lose its grandfathered status as a nonconforming sign under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days' period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Petitioner owns the sign located on the west side of and adjacent to U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for a permit to maintain a sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied. DONE and ENTERED this 5th day of June, 1991, at Tallahassee, Florida. DIANE CLEAVINGER 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 5th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate. The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence. The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate. COPIES FURNISHED: William K. Jennings 119 E. Park Avenue Tallahassee, Florida 32301 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1994.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Billboard Consultants for permits to erect outdoor advertising signs on Prudential Drive (U.S. 1), 90 feet south of Flagler Avenue, facing south, in Jacksonville (Duval County), Florida, be denied. THIS RECOMMENDED ORDER entered this 22nd day of April, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1985.
Findings Of Fact On September 1, 1981, the Department received in its district office in Chipley, Florida, the Respondent's application for a permit to erect an outdoor advertising sign adjacent to I-10, approximately 1.62 miles east of SR 69S in Jackson County, Florida. This permit application stated that the location requested was in a commercial or industrial area within 800 feet of a business. The Department's outdoor advertising inspector visited the site after having reviewed the Respondent's application and being told by Harry Fuqua that he would find a business called Branch's Garage there. He found a house with a tin farm-type building like a barn in the back. Inside this tin barn were some tools and welding equipment. There was a sign on the door stating the business hours, and another sign on the side of this tin building stating the name Branch's Garage. None of this was visible from I-10, however; all that could be seen from the interstate was the roof of the residence and part of the tin barn; there was no indication to traffic on the interstate that any commercial activity was being conducted at this location. The inspector's supervisor and the Department's Right-of-Way Administrator both visited the site prior to approval of the subject permit. The supervisor had also been told that he would find a business known as Branch's Garage there, and he was looking for it. At the site he observed what appeared to be a garage and some work being done. This could not be seen from I-10, and from the interstate he could not see anything that would indicate to traffic that a garage was at this location. The Respondent's representative, Harry Fuqua, admits that no business activity was visible from I-10, and that there was nothing to indicate to traffic on the interstate that any commercial activity was being conducted at this location. The site where Branch's Garage is located cannot be reached from I-10 directly. It would have to be approached from one of the side roads after traffic had exited the interstate. Based upon his inspection of the site, coupled with the Respondent's representation that a business called Branch's Garage existed there, the inspector approved the Respondent's application for a sign permit. Thereafter, both the supervisor and the Right-of-Way Administrator also approved the application. The permit was issued on or about September 8, 1981, because of the proximity of the proposed site to the nearby business known as Branch's Garage which had been observed by the inspector, his supervisor, and the Right- of-Way Administrator. Subsequently, after the permit had been issued, the Respondent erected its sign which is the subject of this proceeding. In late 1984 and early 1985 there was no business activity at the subject site and there continues to be nothing there to indicate to traffic on the interstate that any commercial activity exists at this location. The Respondent through its agent Harry Fuqua, submitted the application for the subject permit, and designated thereon that the proposed location was in an unzoned commercial area within 800 feet of a business. This application also certified that the sign to be erected met all of the requirements of Chapter 479, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AF191-10 held by Fuqua & Davis, Inc., be revoked, and the sign which was erected pursuant to this permit be removed. THIS RECOMMENDED ORDER entered this 11th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1985. COPIES FURNISHED: Maxine C. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 James J. Richardson, Esquire P. O. Box 12669 Tallahassee, Florida 32317-2669 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
