The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
Findings Of Fact Respondent's sign was erected in 1974 on land leased by Respondent within the city limits of Sebring, Florida. At this time signs within the limits of incorporated towns and cities did not require permits or authorization from Petitioner. In 1975 Chapter 479, Florida Statutes, was changed so as to require signs located on federal-aid primary highways within the city limits to have permits issued by the Department of Transportation at no cost to the sign owner. U.S. 17 is a federal-aid primary highway. By application for outdoor advertising sign permit dated May 31, 1977 (Exhibit 4), Barnett Bank at Sebring applied for a permit to erect a sign along U.S. 17 some 200 feet from Respondent's existing sign. That application was approved by the Department of Transportation on July 12, 1977. Either before or after the Barnett Bank application was approved, Petitioner notified Respondent that its sign was in violation. Respondent is not in the sign business and no evidence was presented that Respondent has other signs. Respondent then submitted an application for permit dated July 25, 1977 (Exhibit 6), which was denied by Petitioner because it was within 500 feet of the Barnett Bank sign. The application stated this sign was within 200 feet of an existing sign. Respondent's sign has remained in its present location from 1974 to present. The structure is concrete block, brick and stucco, cost approximately $2,800 to erect, and resembles the building in which Respondent's insurance business is housed. A second application for a sign permit was submitted by Barnett Bank on April 20, 1978, and was approved by Petitioner on April 27, 1978 (Exhibit 5). The only apparent difference between Exhibits 4 and 5 is the location of the sign on Exhibit 4 is 0.24 mile north of U.S. 27 and Exhibit 5 shows this distance as 0.20 mile north of U.S. 27. No evidence was presented regarding the purpose of the second application by Barnett Bank.
The Issue Whether DOT should void outdoor advertising permits Nos. AT402-35 and AT403-35?
Findings Of Fact On March 20, 1987, (T. 12) DOT issued advertising sign permits to respondent, Nos. AT 402-35 and AT 403-35, authorizing construction of a metal outdoor advertising sign "monopole" 43 feet high with sign boards facing north and south, less than a tenth of a mile south of Alternate U.S. Highway 90, a "federal aid primary road" (T. 11), immediately west of State Road 297 in Escambia County. DOT's Exhibit No. 1. In May of 1988, Outdoor Media, Inc., applied for a permit to construct an outdoor advertising sign at a site five or six hundred feet east of the intersection of State Road 297 and Alternate U.S. Highway 90. Because the site proposed by Outdoor Media, Inc., is visible from and lies within 660 feet of the main traveled way of Alternate U.S. Highway 90 and because it lies within 1,000 feet of the site on which DOT had authorized Salter to erect signs, DOT denied Outdoor Media, Inc.'s, application. When Philip N. Brown, who works in DOT's outdoor advertising section, reported that no sign had ever been built at the site for which Salter had obtained permits Nos. AT402-35 and AT403-35, DOT notified Salter of its intent to void and revoke the permits. DOT's Exhibit No. 2. Some time after June 19, 1988, more than 18 days after DOT sent Salter notice of its intent to void the sign permits, Salter erected a wooden sign on the site. On March 10, 1988, Salter had obtained a building permit from Escambia County for the metal monopole structure, but, because more than 180 days had elapsed without any call for inspection, Escambia County declared the building permit null and void on September 23, 1988.
The Issue Whether the sign of Respondent violates Section 479.07 and Section 479.02, Florida Statutes by violation of the permit and spacing requirements of the Outdoor Advertising Act.
Findings Of Fact An application was made for a permit for the subject sign and the application was denied on the basis that the sign was within the 500 foot spacing requirement, the sign being erected approximately in the middle of the distance between two outdoor advertising sign which are approximately 500 feet apart. The sign advertises Oaks Trading Post. The sign has been erected for many years and has carried messages such as "Elect Askew for Governor" and "Vote Democratic" or other political advertisements. The sign now advertises a commercial establishment and has since, at least, December of 1976. This sign does not bear a permit although the Respondent admitted that it is a commercial sign. 3.. The Respondent has paid the required license fees for the subject sign for more than the last 20 years to the City of Rockledge, Florida.
Recommendation Remove the subject sign. DONE AND ORDERED this 10th day of February, 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: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Anthony Ninos 112 Riverside Drive Cocoa, Florida 32922
Findings Of Fact The Respondent, Empire Outdoor Advertising, Inc., is the owner of a sign located on the westbound or north side of Northwest 54th Street approximately 20 feet east of Northwest 12th Avenue, in Dade County, Florida. Northwest 54th Street is also designated as State Road 25A. The Respondent's sign is a structure or billboard designed to advertise or inform, and its copy is visible from the main traveled way of the adjacent roadway of State Road 25A or Northwest 54th Street. At the site where the Respondent's sign is located, State Road 25A or Northwest 54th Street is a part of the federal- aid primary highway system, and this roadway is open to the public for vehicular traffic. The Respondent's sign is located within 660 feet from the nearest edge of the pavement of State Road 25A. The Respondent's sign is situated within 500 feet from another outdoor advertising structure on the same side of the highway. These two signs face in the same direction and are both visible to westbound traffic on the north side of State Road 25A or Northwest 54th Street. The Respondent's sign has affixed to it copy which advertises Kraft Barbecue Sauce. This structure does not fall within any of the exceptions to the statutory licensing requirements set forth in Section 479.16, Florida Statutes, and it must have a state sign permit. The Respondent has not applied for an outdoor advertising permit from the Department, and no such permit has been issued by the Department for the subject sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the Respondent's sign which is the subject of this proceeding to be in violation of the applicable statutes and rules, and ordering its removal. THIS RECOMMENDED ORDER entered this 25th day of January, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 L. Martin Reeder, Jr., Esquire Post Office Box 2637 Palm Beach, Florida 33480
Findings Of Fact Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property. Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained. A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar. Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site. Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing. By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property. By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department. The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County. The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective. There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising. The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site. The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied. DONE and ORDERED this 28th day of December, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of December, 1984. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Findings Of Fact Petitioner's application to erect an outdoor advertising sign along the east side of U.S. 41, four miles north of CR-54 (Exhibit 1) was disapproved by Respondent because it was within 1,000 feet of a sign on the same side of U.S. 41 and facing in the same direction. U.S. 41 is a federal aid primary highway. The site applied for in Exhibit 1 is 963 feet south of an existing sign on the east side of U.S. 41 owned by Cotee Outdoor Advertising for which permits AE 482-35 and AR 483-35 have been issued. Petitioner's primary objection to the denial is the cost involved in relocating the existing sign some 35 feet to the north which would be necessary to have at least 1000 feet between the proposed site and an existing sign.
Findings Of Fact The district outdoor advertising sign inspector inspected the sign in question alongside SR-10 in July 1979, found no permit on the sign and a permitted sign facing the same direction 440 feet from the offending sign and on the same side of SR-10. A check of the files revealed no application had been received for a permit for a sign at this location. Representatives of Tom West Homes, Inc. were contacted and the ownership of the sign was acknowledged. A representative further acknowledged that notice of this hearing had been received. SR-10 is a federal-aid primary highway.
Findings Of Fact The Respondent, Janet C. Wyatt, owns an outdoor advertising sign which is situated on U.S. 19, .5 mile south of State Road 44 in Citrus County, Florida. One of the faces of this sign faces north and the other faces south. U.S. 19 is a federal-aid-primary highway. The Respondent applied for a permit for the subject sign from the Department of Transportation approximately 15 years ago. The Department did not issue the requested permit, and none has been issued to date. The subject sign is a 16 foot billboard which has been erected at a point which is 80 feet from the center line of U.S. 19. The width of the state's right-of-way is 100 feet from the center line of U.S. 19 at the point where the sign is standing. Thus, the entire sign structure is inside the state right-of-way. There is no identification of the sign's owner on the structure. The Respondent admits that she has no state permit for the subject sign, that her name as owner does not appear anywhere on the structure, and that the sign is situated inside the state right-of-way.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's sign situated on U.S. 19, .5 mile south of State Road 44 in Citrus County, Florida, facing north and south, be removed. THIS RECOMMENDED ORDER entered this 26th day of March, 1985, 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 26th day of March, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Janet C. Wyatt 20 Crooked Branch Road Lecanto, Florida 32661 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner has applied for a permit, and proposes to erect an outdoor advertising sign on the north side of SR 424A, 650 feet east of I-4, in Orange County, Florida. State Road 424A is also known as Fairbanks Avenue. This location is within 660 feet of Interstate 4, and the proposed sign would be visible to traffic on I-4. The Department of Transportation has issued a permit to Peterson Outdoor Advertising for an outdoor advertising sign located approximately 375 feet from the Petitioner's proposed signsite on the same side of I-4, and a sign has been erected by Peterson Outdoor Advertising at this point.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Cory Outdoor Advertising, Inc., for a permit to erect an outdoor advertising sign on the north side of SR 424A, 650 feet east of I-4, in Orange County, Florida, be denied. THIS RECOMMENDED ORDER entered this 28th day of February, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearing The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of February, 1986. COPIES FURNISHED: Gary E. Massey, Esquire 112 West Citrus Street Altamonte Springs, Florida 32714-2579 Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
