The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
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 Respondent's sign, a nonconforming sign, was destroyed under the provisions of Chapter 479, Florida Statutes, and the federal laws so that said sign could not be repaired without first securing a permit from the Department of Transportation.
Findings Of Fact A sign owned by the Respondent with Permit No. 168-14 for 1974 with a copy: Silver Springs; location: 1 1/2 miles west of Grand Ridge City, limits; Highway: U.S. 90, was destroyed by a storm in January of 1975. The face of said sign was blown down and the structure was scattered over the north side of U.S. 90 which is across the street from the site of the original sign. Said sign was re-erected by the Respondent without first obtaining a permit and the copy on the sign was changed from the copy advertising Silver Springs to the present copy which advertises Salt Springs Campgrounds. The sign is in violation of Section 479.11(1), F.S., for the reason that it is nearer that 660 feet from the nearest edge of the right of way of a federal aid primary road.
Recommendation Remove subject sign. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 E. Morris Boulevard Winter Park, Florida
Findings Of Fact Objections to time involved in the Notice of Hearing was wavied by the parties. The parties were present. Respondent admitted that he had erected a sign near State Road 71, 1 8/10 miles south of the Calhoun County county line, with copy: Cypress Lodge - Fish Camp - Motel, a double faced sign. He admitted that he had no permits for 1974, 1975 nor for the current year. Respondent admitted that he had made no application to the Petitioner, Florida Department of Transportation, before employing a man to erect the sign. Respondent had no written lease agreement with the owners of the property upon which the sign is erected. The Petitioner claims a 33 foot right of way by maintenance and there is no controversy as to whether the State actually owns the 33 foot right of way it claims by maintenance although the State has no deed for said right of way. The subject sign is 12 feet from the nearest edge of the 33 foot right of way claimed by the State. Said 12 feet is 3 feet less than the required 15 feet from the nearest edge of the right of way of State Road 71.
Conclusions RECOMMENDATION: Inasmuch as the violation is the difference between 12 feet and 15 feet and the reerection of subject signs would destroy a wooded area; and the secondary road is now cluttered with nonconforming signs'. and it is the testimony of the owner that he intends to remove and redo the subject signs eventually but not this year; it is recommended that a permit be issued for subject signs upon payment of permit fees for the past years and upon a date certain after 1976 for removal of subject signs. The Department adopts the Findings of Fact and the Conclusions of Law of the Hearing Officer, but is unable to accept her Recommendation that the sign be permitted to remain in place. Once the determination is made that the subject sign violates the setback requirements of Chapter 479, Florida Statutes, it becomes the duty of the Department to follow the provisions of the law and order the Sign removed. IT IS ORDERED, therefore, that the subject sign be removed thirty-five (35) days from the date of mailing a copy of this Order to Respondent, provided no petition for review of this Order has been filed with a court of competent jurisdiction, in which event thus Order will be stayed. IT IS ORDERED this 18th day of January, 1977. TOM WEBB, JR. SECRETARY STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA Copies furnished: Philip S. Bennett, Attorney Office of Legal Operations Department of Transportation Haydon Burns Building John W. Scruggs, Attorney District III Office Department of Transportation Chipley, Florida Delphene C. Strickland, Hearing Officer Division of Administrative Hearings Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 John C. Dill Route 3, Box 172 Wewahitchka, Florida 32465 Mr. O. E. Black, Administrator Outdoor Advertising Section Right of Way Bureau Department of Transportation Tallahassee, Florida
Recommendation Inasmuch as the violation is the difference between 12 feet and 15 feet and the reerection of subject signs would destroy a wooded area; and the secondary road is now cluttered with nonconforming signs; and it is the testimony of the owner that he intends to remove and redo the subject signs eventually but not this year; it is recommended that a permit be issued for subject signs upon payment of permit fees for the past years and upon a date certain after 1976 for removal of subject signs. DONE and ORDERED this 13th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Scruggs, Jr., Esquire Philip S. Bennett, Esquire Staff Attorney Office of Legal Operations Department of Transportation Department of Transportation Chipley, Florida Haydon Burns Building Tallahassee, Florida 32304 John C. Dill, Respondent Route 3, Box 172 Mr. J.E. Jordan Wewahitchka, Florida 32465 District Sign Coordinator Department of Transportation Post Office Box 607, US Highway 90 Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: DEPARTMENT OF TRANSPORTATION, NOT FINAL UNTIL TIME EXPIRES TO FILE FOR JUDICIAL REVIEW Petitioner, AND DISPOSITION THEREOF IF FILED vs. CASE NO. 75-1936T JOHN AND JUANITA DILL, Respondent. /
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
Findings Of Fact A sign advertising "Kapok Tree" in Daytona Business Park was permitted by the Department of Transportation (Department) at the intersection of Ventress Boulevard and U.S. Highway 92 (hereinafter referred to as the Kapok Tree sign). Lamar-East Florida Outdoor Advertising (Lamar) applied for an outdoor advertising permit for a sign to be located at Bill's Fruit Stand, 380 feet east from the Kapok Tree sign. The Department processed the Lamar application and issued a permit for said sign, although the Lamar sign was within the proscribed distance (500 feet) of the Kapok Tree sign. The Department conducted an on-site inspection, and the inspector failed to notice the Kapok Tree sign. The Department would not have issued the Lamar permit had the Kapok Tree sign been noted. The Kapok Tree sign had its permits displayed. Thereafter, Don Bell and Company (Bell) applied for an outdoor advertising permit for a sign located approximately 30 feet from the intersection of Bayless Avenue and U.S. Highway 92, 480 feet from the Lamar sign location, and 810 feet from the Kapok Tree sign. The Department denied Bell's application because that sign location was less than 500 feet from the Lamar sign location. Neither Lamar nor Bell have constructed signs at the subject locations for which they have applied for permits, although lease payments have been made by both Lamar and Bell. Both the Kapok Tree sign and Lamar have current permits, and Bell challenges the validity of the Lamar permit. But for its distance from the Lamar sign site, the Department would approve the Bell application. All parties stipulate that the Lamar notarized and certified application recites there is no sign within 500 feet of its site, when in fact the Kapok Tree sign was and is 380 feet from Lamar's site. Administration of outdoor advertising is dependent upon the representations made by an applicant in its application and the verification of said data by on-site inspection by the Department's inspector in issuing outdoor advertising permits. The Kapok Tree sign is not an on-premises sign.
Recommendation Having found that there are no valid grounds for denial, it is recommended that the Petitioner's application for an outdoor advertising permit be approved. DONE and RECOMMENDED this 22nd day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Ted Doran, Esquire 100 Seabreeze Boulevard, Suite 130 Post Office Box 2134 Daytona Beach, Florida 32015 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Edward M. Keating, Manager Lamar-East Florida Outdoor Advertising 2801 South Ridgewood Avenue South Daytona, Florida 32019 Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
