The Issue The issue is whether a billboard structure is in compliance with Chapter 479, Florida Statutes.
Findings Of Fact The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the nearest edge of the State Highway System, interstate, or Federal-Aid Primary system in accordance with Chapter 479, Florida Statutes. Lamar is in the business of providing outdoor signs for entities wishing to advertise. Lamar owns the sign at the northeast corner of the intersection of Betton Road and Thomasville Road in Tallahassee, Leon County, Florida. The sign was built in 1980 and rebuilt in June 1997. The sign has two sides. One side faces Betton Road, and is visible only to persons on Betton Road. The Department does not assert that a permit is required for that side. The other side of the sign, facing to the west, is within 660 feet of Thomasville Road, which is also referred to as State Route 61, and is visible from Thomasville Road. In 1974, State Route 61 was known as U. S. Highway 319. It was a Federal-Aid Primary route. On June 24, 1974, a road denominated Capital Circle located on the outskirts of Tallahassee, was designated U.S. Highway 319. Thomasville Road although no longer a part of U.S. Highway 319, continued to bear the name State Route 61 and remained a Federal-Aid Primary route. In 1983 the Federal Highway Administration listed both Capital Circle and State Route 61 as Federal-Aid Primary routes. In 1991, the Federal Highway Administration created the National Highway System and ceased using Federal-Aid Primary designations. State Route 61, also known as Thomasville Road, nevertheless remained a Federal-Aid Primary road for outdoor advertising classification purposes at all times pertinent to this case. For federal highway identification purposes, the road is currently in the Surface Transportation Program. Prior to May 23, 1996, Lamar held an outdoor advertising permit pursuant to Section 479.07, Florida Statutes, for this sign. The sign was assigned tag number BG 518-35. On May 23, 1996, the Department issued a "Notice of Violation--Signs for Which Permits Have Been Issued," addressing permit number BG 518-35. This notice indicates that it was sent to Lamar via registered mail, return receipt requested. It informed that the sign was in violation of Chapter 479, Florida Statutes, or Florida Administrative Code Chapter 14-10 because the sign: "May not be maintained without permission of the person lawfully controlling site (479.11(9), FS)." On July 31, 1996, in a letter signed by District Outdoor Advertising Manager Vicki L. Davis, the Department notified Lamar that, because the Department had received a statement of loss of landowner's permission for the sign bearing tag number BG 518-35, Lamar was required to remove the sign. The Department included a "certificate of cancellation" with the letter. Lamar admits that it voluntarily canceled its permit for the sign in August 1997. Subsequently, the sign remained with its permit tag attached, unmolested by the Department for approximately 11 years. In January 1997, Lamar acquired a separate monopole structure bearing two signs with tag numbers BN 504 and BN 505. These signs are less than 200 feet to the north of the subject sign. During a 2007 inspection, an agent for the Department observed the subject sign. It still bore tag number BG 518-35. On March 14, 2007, the Department issued the "Notice of Violation-Illegally Erected Sign" addressed above. As noted before, the violation was based on the sign's having no permit.
Recommendation Based upon 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 is a public or private nuisance and requiring that it be removed as provided in Subsection 479.105(1)(a), Florida Statutes, and dismissing case number 08-1137. DONE AND ENTERED this 16th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Respondent?s Outdoor Advertising Permits should be revoked pursuant to section 479.08, Florida Statutes, because the associated sign has not remained substantially the same, has been disassembled and re-erected, or has been destroyed, as set forth in the Amended Notice of Intent to Revoke.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the State Highway System, the Interstate, and portions of the Federal-aid Primary System. Green?s Wrecker Service, begun in 1947, was one of the first wrecker services in Alachua County. Mr. Allen Green was the owner and operator. There was no precise testimony as to when Mr. Green first erected the advertising sign at issue here, but Mr. Green?s daughter, Pamela, vaguely remembered that happening: Well, I was seven or eight years old. I remember Daddy and Grandpa going down there after they opened up the road. It was woods there and we used to play on our bikes and I remember my Grandmother coming out and sitting beside the road because she was scared we was gonna get onto 301 because it was always woods back there before, and we could ride and we didn?t have her bothering us, you know. So when the woods got cleared out to 301, then, you know, Granny was sitting out there and daddy and grandpa went down there and done something, put that sign up, I guess. Based upon Pamela?s current age and her recollection, it can be roughly calculated that the sign was put up over 40 years ago. It is a small sign, about three feet by six feet, and has the words “Green?s Garage” in red letters and a smaller “Pennzoil” logo in yellow, along with a large arrow pointing toward the business. The sign sits at the intersection of US Highway 301 and 165th Avenue, the business being located about a hundred yards down 165th Avenue. The sign is important to the business because, due to the trees, one cannot see the actual building or cars at the business location from US Highway 301 until one is already at the 165th Avenue intersection, where one can finally see them through the area that has been cleared out for the road. Mr. Green turned the business over to Pamela before he died, and she has operated the business ever since. She subsequently married Mr. Gary Keen. Mrs. Pamela Green Keen incorporated the business as “Green?s Garage and Wrecking Service, Inc.” There was no evidence as to when the subsequent provision of state law or local ordinance with which the sign fails to comply was passed, but the parties stipulated that the sign is nonconforming, so it is clear that the sign was lawful when erected but could not be put up today. The sign was permitted as a wooden sign with a back-to- back configuration and two supports. That configuration has never changed. The sign was assigned tag numbers BE893 and BE894 by the Department. These tags look like small license plates that are posted on the sign and must be visible from the main travel-way. Mr. Tom Simmons is a senior outdoor advertising inspector for Cardno TBE Consultants (Cardno TBE), a contractor for the Department. Cardno TBE manages the outdoor advertising program for the State of Florida. Mr. Simmons has been employed with them for 12 years, and, before that, performed a similar job for four years with the Department. Mr. Simmons oversees 16 counties in northeast Florida, including Alachua County. Mr. Simmons was very credible in his testimony. Mr. Simmons testified that he was aware of the sign: In the due process of traveling from point A to point B on 301, I had seen it before. Like I stated earlier, after you have been out here a long time like I have, when structures disappear and go away, you pick up on it because it?s something that you are looking for constantly. On September 7, 2011, Mr. Simmons took a picture of the sign. It was down on the ground and was not erect. Mr. Keen testified that shortly before this, he had been having problems with vandals. The windshield of his tow truck had been shattered by a man whose car had been towed to Green?s Garage. That man was caught and ultimately paid restitution. A vehicle had also been stolen from Green?s Garage in June, and Mr. Keen or his wife had requested increased sheriff?s patrols at the business address in August, as evidenced by records from the Alachua County Sheriff?s Department. Mr. Keen testified that people often became upset when their cars were towed and that some were vindictive and would resort to vandalism. He said it was an unavoidable consequence of the business, since he towed cars for the Sheriff?s Department and the Florida Highway Patrol. Mr. Keen testified that he goes down 165th Avenue to US Highway 301, right past where the sign is located, almost every day. His testimony that the sign was not down for more than a day is accepted. Mr. Keen?s first action was to look for signs as to who had knocked it down, but he could not find any evidence such as cigarette butts, or cans, or footprints, so he decided it would do no good to call the police. Mr. Keen re-erected the sign. He did not have to reassemble or add to the materials on the sign in any way, since it was still intact. He just put it back up. The Department issued its original Notice of Intent to Revoke Sign Permit for Violation, dated October 26, 2011, alleging that the sign had been abandoned. Respondent denied this in its response to the Department and requested an administrative hearing. The Department did not request an administrative law judge within 15 days of Respondent?s request. Green?s Garage and Wrecker Service is substantially affected by the Department?s intended action to revoke the permits for the sign. If the permit is lost, the sign must be taken down and no new sign can be erected. Almost a year later, on October 18, 2012, Mr. Simmons took a picture of the sign which showed that it was back up in its original location. He testified that it appeared to be the same sign, constructed of the same materials as before. On March 28, 2013, the Department issued Green?s Garage an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules. At all times relevant to this proceeding, the sign remained substantially the same as it was on the date it became nonconforming. Even if it was determined that the sign did not remain substantially the same simply because it was down for a day or two, simply re-erecting the sign when no assembly or construction was required constituted reasonable repair and maintenance of the sign. The sign was never disassembled throughout the time relevant to this proceeding. Less than 60 percent of the upright supports of the sign were physically damaged at any time relevant to this proceeding. One pole was not damaged at all; the other had only very minor damage. The minor damage to one pole was not such that the normal repair practices of the industry would call for that pole?s replacement. Respondent never had an intention to abandon or discontinue the sign at any time relevant to this proceeding. The facts did not show that the sign structure ceased to exist. All the interrelated parts and material -- including the beams, poles, and stringers -- which were constructed for the purpose of supporting or displaying the message remained completely intact and never ceased to exist as an integrated structure.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Amended Notice of Intent to Revoke Sign Permit for Violation and allow the outdoor advertising permits to continue. DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2013.
The Issue Whether the Respondent is in violation of Section 479.07, Section 479.11(5) and Section 479.11(1), Florida Statutes, which statutes provide that permits must be obtained from the Florida Department of Transportation before an outdoor advertising sign is erected and which prohibits the erection of an outdoor advertising sign within 660 feet within the nearest edge of the right of way of all portions of the interstate system or the federal primary aid system and which is placed on the inside of a curve or in any manner that may prevent persons using the highway from obtaining an unobstructive view of approaching vehicles.
Findings Of Fact Subject sign was erected without a permit in 1973 and was nailed to a tree. The sign is located in a zoned residential area approximately ten feet from the nearest edge of the right of way of a federal aid primary highway, State Road 61.
Recommendation Remove subject sign and remove any re-erection of 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 C. A. Miller Auto Truck Service 806 Westway Road Tallahassee, Florida
The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statute 479.11(1), sign erected without a state permit. Whether subject sign is a new and different sign inasmuch as it has new facings, is erected on new poles and is materially elevated from the location of the previous sign. Whether subject sign is in violation of federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued the Respondent, Peterson Outdoor Advertising Corporation, notice of alleged violation of Chapter 479, F.S., on October 27, 1975 with respect to the following sign: Highway: S.R. 8 (I-95) Location: Junction I-95 and U.S. 17 Copy: 76 Truck Stop Pursuant to this notice the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. This request was made by John T. Graczol, vice president of leasing, by letter dated November 6, 1975. Respondent is the owner of the sign referred to in paragraph 1 of these findings. A sign with similar copy was erected by the Respondent prior to 1970 at the approximate location of subject sign. The Respondent owned and maintained the sign from time of erection up until January of 1975 when such sign was removed and the subject sign built. Subject sign is erected in a nonconforming area both in zoning and on a ramp outside of the city limits on an interstate highway. It is nearer than 660 feet from the nearest edge of the right of way of an interstate highway system in an open rural zoning area and can be read by persons traveling on the interstate highway system. The sign that was removed was in the approximate location with similar copy but with an elevation of under 10 feet. Subject sign is a replacement sign in the approximate location as the replaced sign with the same type of copy. The replacement sign is on different poles and at a more elevated height (from under 10 feet to over 16 feet) than the replaced sign. The replacement subject sign is much more visible to the traveling public than the old sign because of the materially increased elevation. No part of the old sign is standing and the replaced sign has been removed The Petitioner testified that the value of the sign increased by $484.00 and it is the finding of the Hearing Officer that the replacement sign is of more monetary value than the replaced sign. The new facing materials, the replacement of poles and the decided increase in elevation, make subject sign a different sign within the meaning of Chapter 479, F.S. and the federal regulations, thus, becoming a new sign requiring a permit rather than qualifying as nonconforming with the customary maintenance or repair of existing signs allowed under Section 479.01(12), F.S., infra. The owner of the sign was given written notice of the alleged violation and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject sign if said sign has not been received by the owner within ten (10) days after entry of the final order herein. DONE and ENTERED this 30th day of June, 1976, 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 Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire P. O. Box 539 Winter Park, Florida Mr. O. E. Black Administrator Outdoor Advertising Section Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. F. S. Whitesell District Sign Coordinator South Marion Street Lake City, Florida 32055
Findings Of Fact The Petitioner, Carter Signs is in the business of outdoor advertising which includes the installation, repair and maintenance of signs, billboards, or displays on real property. Pursuant to a twenty-year term lease that began on March 1, 1988, the Petitioner has leased the real property described as: Strap No. 344525-00- 00002.000 lying east of 1-75, in Lee County, Florida. The lease describes the specific intended use of the real property under the lease. The lessee has agreed to use and occupy the premises solely for the purpose of outdoor advertising. The real property is located in Lee County, Florida, within 660 feet of Interstate Highway 75, a highway in the interstate highway system. The property is approximately 1.5 miles south of the Daniel Road interchange on the east side of the highway. The Lee County Comprehensive Plan, which has been enacted by the county, designates the area in which real property is located as "Airport Commerce." Under the plan, this land is approved for "mixed use developments consisting of light manufacturing or assembly, warehousing and distribution facilities; offices; ground transportation and airport related interconnection activity; and hotels/motels, meeting facilities and other hospitality services." The Petitioner's application to Lee County for a permit to erect the proposed sign on the property was approved. The county permit shows that the property is zoned "agricultural." If the "agricultural" zoning classification is violated, the county permit becomes void. The application for permit to the Department was denied because Section 479.111(2), Florida Statutes, allows signs within a controlled portion of an interstate highway only if the sign is within a commercial-zoned area, an industrial-zoned area, a commercial-unzoned area or industrial-unzoned area. In this case, the proposed sign was to be placed in an agriculturally zoned area.
The Issue The issue is whether Petitioner is maintaining signs illegally as alleged in a Notice of Violation issued to Petitioner.
Findings Of Fact Respondent, Department of Transportation (DOT), is the state agency that regulates outdoor advertising signs located within 660 feet of the State Highway System, interstate, or federal-aid primary system, as provided in Section 479.105, Florida Statutes (2008). On January 3, 2008, DOT issued Notice of Violation T117MB alleging that eight signs on the Shiver Property (Shiver) in Florida City, Florida, were erected illegally, and requiring the owner to remove or to pay DOT to remove the signs. There is no dispute that the permits to erect the signs have not been issued by DOT. The signs are mounted on top of the Shiver building located at 12 Northeast 3rd Street, Florida City, Dade County, Florida, and are from 16 to 27 feet apart from each other. The property is managed by Roy Dan Shiver (Mr. Shiver) who operates Shiver Glass and Mirror Company at the same location. Other tenants are the Frito Lay Company, a tax preparation service, and a real estate business. One of the signs on the Shiver building advertises for "Captain Shon's Seafood Grill & Pub Fish and Chips MM 103 - Key Largo." Another sign reads "The Big Chill Waterfront Dining 24 miles to Sports Bar Tiki Bar Pool MM 104 - Key Largo - Bayside." A third sign advertises "Sunset - Seafood Marker 88." Captain Shon's Seafood Grill & Pub Fish and Chips, Big Chill Waterfront Dinning, and Sunset - Seafood Marker 88 do not operate businesses on the Shiver property. The remaining five signs are various advertisements for The Shell Man including the following: "The Shell M Windchi T-shirt 32 miles on left * 70 on" (with apparent damage cutting off some of the words); "The Shell Man Unique Gifts * Full Service * Gas Station * Free Shell Necklace 32 miles on left;" "The Shell Man Take Home A pet! Hermit Crabs 32 miles on left * 70 miles on left;" "The Shell Man Come Blow A Conch Horn 32 miles on left;" and "The Shell Man Shark Necklaces Jaws & Gifts 32 miles on left * 70 miles on left." Mr. Shiver testified that The Shell Man has operated a business in the Shiver building for more than seven years, and currently operates in an office shared with Mr. Shiver after having moved from a separate office that is now occupied by a real estate company. His testimony regarding the length of time The Shell Man has operated a business at that location is not supported by the one lease he has with The Shell Man, dated January 1, 2008, with no other evidence of prior agreements. According to Mr. Shiver, The Shell Man operates a business by having brochures and samples of shells, that "they could sell" or "could give them away," in the Shiver office, but The Shell Man has no sign on the door and its owner comes and goes with no regular hours. Petitioner's claim that The Shell Man operates a business on the premises is not supported by the credible evidence. In response to questions concerning the zoning and any special designations for the area in which the Shiver building is located, Mr. Shiver was "sure it's zoned commercial," believed it was part of a community redevelopment area, and testified that it was "very possible" that it is in an empowerment zone. The signs on the Shiver building in Dade County all advertise for businesses located in Monroe County, and are oriented facing north to be seen by traffic heading south. Mr. Shiver testified that drivers on U.S. 1, a federal-aid primary highway, have to turn their heads and look back to see the signs on his building. A permitted billboard north of the Shiver property has two signs on it, one faces north and the other faces east. Petitioner takes the position that, (1) the eight signs are not on U.S. 1 but on the Florida Turnpike off-ramp leading onto U.S. 1; (2) that the evidence does not clearly show that the signs are within 660 feet of and visible from a federal-aid primary highway or interstate; (3) that the signs are not too close together or to the nearest permitted billboard that has signs facing in different directions; (4) that the local government, not DOT, has the authority to regulate the signs under an agreement with the federal government; and (5) sign regulations are inapplicable in the "distressed area." Mack Barnes, the DOT outdoor advertising inspector, who reported the possible sign violations to DOT testified that the signs are approximately 150 feet from the state right-of-way and are visible from U.S. 1. Mr. Barnes took a picture of the building with the signs to submit with his report. He could only submit one or two pictures with his report and to get the best vantage point, he took that picture from the Turnpike off ramp. Mark Johnson, the DOT regional advertisement inspector, also photographed the signs on the Shiver building. Like Mr. Barnes, he took some photographs from the Turnpike ramp, but he took one, Respondent's Exhibit 7, while he was standing on southbound U.S. 1. That picture shows the Shiver building and five of the signs on top of it. Based on Mr. Johnson's measurements, the signs are from 16-to-27 feet apart, and the distance to the nearest permitted billboard, with tag numbers BC367 and CG754, is 445 feet. The measurements were taken with a Nightstar Distance Measuring Instrument and are more exact than an earlier DOT estimate of 491 feet based on the milepost locations. On December 31, 2007, Mr. Johnson checked each door of the Shiver building to see if any of the businesses advertised on the signs were operating on the premises and they were not. He did not go inside any of the offices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the eight signs that are the subject of Notice of Violation T117MB are a public or private nuisance, and requiring that they be removed as provided in Subsection 479.105(1)(a), Florida Statutes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009. COPIES FURNISHED: Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A. 411 Meridian Place Tallahassee, Florida 32303 Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelouso, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
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 the Department of Transportation (hereinafter "Petitioner") properly issued Notices of Violation to Respondent as alleged in Notice Numbers 09 BU720, 09 BU721, 09 BU723, 09 BU724, 09 BU726, and 09 BQ032 for outdoor advertising billboard structures located adjacent to US 1 and I-95 in Brevard County, Florida. Specifically at issue is whether Respondent's outdoor advertising signs: (1) were removed from the locations for which they were permitted and re-erected at the same locations; (2) are nonconforming and cannot be relocated; were destroyed by an act of God; and (4) are destroyed nonconforming signs which cannot be re-erected (the signs have been re-erected), all in violation of Rule 14-10.007, Florida Administrative Code.
Findings Of Fact Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation ("Respondent"), owns and maintains four off- premise outdoor advertising signs located along Interstate 95 in Brevard County, Florida. Respondent also owns and maintains two off-premise outdoor advertising signs located along U.S. Highway 1 in Brevard County, Florida. These six off-premise outdoor advertising signs are generally hereinafter referred to as the "signs." Outdoor advertising is a lawfully recognized business which is regulated under the provisions of Chapter 479, Florida Statutes, by Petitioner. Respondent is licensed by Petitioner in the business of outdoor advertising. The Division of Forestry of the Department of Agriculture and Consumer Services ("DOF") is governed by Chapter 590, Florida Statutes, and is responsible for fire protection, fire control, and land management. DOF is charged with the protection of life, property, and natural resources. Petitioner classified the signs as "non-conforming" outdoor advertising signs at all times relevant to this proceeding. The six signs were maintained under the following Department of Transportation ("Department") sign permit tag numbers and were located as follows at all times relevant to this proceeding, each within 660 feet of the first named highway or interstate and each within Brevard County, Florida. Sign Permit # Location BQ 032-55 West of Interstate 95, 3.725 miles north of NEB700136/060 State Road 46 BU 726-55 West of Interstate 95, 1.572 miles north of NEB700138/066 Aurantia Road BU 723-55 West of U.S. Highway 1, 0.324 miles north of County Road 5A BU 724-55 West of U.S. Highway 1, 0.339 miles north of County Road 5A BU 721-55 West of Interstate 95, 3.601 miles north of NEB700136/060 State Road 46 BU 720-55 West of Interstate 95, 3.667 miles north of NEB700136/060 State Road Each of the signs was lawfully permitted by Petitioner at the described location during the relevant time period. Each of the six signs was used for leasing advertising space to third parties and each individually generated income to Respondent. The signs located along Interstate 95 were erected in 1971 and the signs located along U.S. Highway 1 were erected in 1964. The signs located along Interstate 95 were located less than 1,000 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department. Each of the signs located along U.S. Highway 1 was located less than 500 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department. None of the signs were located in an area designated for commercial or industrial use. Interstate 95 is an interstate highway and U.S. Highway 1 is a federal primary highway. The upright supports of each of the six signs were wood, and such signs are structures. In June and July of 1998, an extensive wildfire burned in the area of Brevard County located generally north of State Road 46. During the evening of June 26, 1998, a thunderstorm passed through the area of Brevard County west of the signs. The weather conditions at that time were extremely dry. An event constituting an act of God is any sudden manifestation of the forces of nature without human intervention. The best evidence for the cause of the fire is that lightning during the storm started two wildfires in remote areas west of the signs. The fires were identified by DOF as the Freshwater and Break 5 (or Break 10) fires. Each fire initially spread west. DOF began efforts to combat the Freshwater Fire and the Break 5 fire on June 27, 1998. However, the fires expanded as a result of weather conditions. Because of the hot, dry weather conditions and erratic winds, and despite the continuing efforts of DOF, the fires continued to expand and burned together on June 29, 1998. The combined fires were referred to as the Farmington Fire. On the evening of June 30, 1998, rapid winds from the west caused the Farmington Fire to expand and travel to the east and northeast. As the fire continued to rapidly expand on July 1, 1998, DOF determined that it was unsafe to locate firefighting equipment in the path of the fire. On or about July 1, 1998, the Farmington Fire burned through the area where the signs that Respondent maintained under sign numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55 were located. On or about July 2, 1998, the Farmington Fire burned through the area where the sign that Respondent maintained under sign permit number BU 726-55 was located. On or about July 1, 1998, the Farmington Fire substantially burned all of the upright supports of each of the signs that Respondent maintained under sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55. On or about July 2, 1998, the Farmington Fire substantially burned all of the upright supports of the sign that Respondent maintained under sign permit number BU 726-55. None of the six signs was struck by lightning prior to their destruction. The Farmington Fire spread through the areas where the six signs were located as a result of drought conditions and weather factors. Interstate 95 and U.S. Highway 1 were closed to the public before the signs were destroyed. Respondents attempted to access each of the six signs but could not reach the signs because of road closures by governmental authorities. A burnout is a way of fighting a fire wherein fire is deliberately set and used in a countering measure to burn the fuel in front of a wildfire. The purpose of a burnout is to establish control over a wildfire by eliminating fuel in the existing fire's path. If a burnout is unsuccessful, more strength is added to the wildfire because the wildfire has gained momentum. It is possible for a prescribed burn to become a wildfire. DOF set a fire to "burn out" an area of land involved in the Farmington Farm on the evening of June 28, 1998. This "burnout" fire was set by Ranger Weis in his capacity as an employee of DOF. The fire continued to travel after the burnouts were conducted. The burnout did not contribute to the spread of the Farmington Fire, but temporarily helped to impede the it. The Farmington Fire spread over 5,000 to 6,000 acres. Approximately 200 firefighters were involved in fighting the Farmington Fire. Bulldozers, fire engines, helicopters, retardant, and tankers were used in the firefighting efforts. Many homes, businesses, and other property in the area of the Farmington Fire were saved from fire damage. Some were not saved. The only fire in the area of the Farmington Fire that was set by someone other than Ranger Weis did not contribute to the spread of the Farmington Fire or burn the signs. The Farmington Fire was contained on July 2, 1998. If the same measures that had been used to protect other property from damage had been used on the billboards, the billboards could possibly have been saved from fire damage. The measures that were taken on homes, businesses, and other structures to protect them from fire damage were not used around the subject signs. The steps taken by DOF and firefighting crews to save homes and businesses included creating defensible space around the structures by clearing vegetation and spraying the structures with water. House Bill 1535, which contains amendments to Chapter 590, Florida Statutes, allows for nonconforming buildings, houses, businesses, or other appurtenances to property destroyed by the wildfires of June and July 1998 to be re-erected in kind. House Bill 1535 (Section 24 to revised Chapter 590, Florida Statutes) is applicable to Respondent's signs because each sign constitutes a business which, on its own, would require a state license under Chapter 479, Florida Statutes, and which individually generates advertising revenue. Nonconforming signs destroyed by vandalism or tortious acts may be re-erected in kind. The term "tortious acts" is not defined in Chapter 479, Florida Statutes, or in Chapter 14-10, Florida Administrative Code. After the signs were destroyed, Respondent re-erected each of the six signs with substantially the same type of materials as had previously composed the structure of each sign, and at the same location as the destroyed signs. The materials used to re-erect the signs were not part of the sign structures immediately before the signs were destroyed by the Farmington Fire. Respondent's signs were re- erected in kind. Respondent does not own the property where any of the six signs are located. Under the terms of each agreement with the property owners under which Respondent has the right to maintain the signs, upon expiration or termination of the agreement, Respondent may remove all of its sign materials from the property, and may, unless otherwise agreed, no longer maintain the signs. Excluding the signs, Respondent conducts no other business activities on the property upon which the signs are located. Petitioner's witness, Ronald Weis, a Senior Forest Ranger with the Division of Forestry, had personal knowledge of the wildfires that occurred in Brevard County during June and July 1998 and participated in the investigation, management, and fighting of the wildfires in Brevard County in the areas where the subject signs are located. Respondent's witness, Dennis R. Dewar, based upon his years of experience and education in various fire fighting and teaching capacities, is qualified as an expert to testify in the areas of fire fighting training, fire fighting operations, the spread of fires, and the cause and origin of fires. The opinion testimony of Mr. Dewar, concerning the cause of the damage to the signs and the cause, origin, and spread of the Farmington Fire, was not persuasive. DOF regulates prescribed burns. However, it cannot mandate prescribed burns on private property. A prescribed burn is the controlled application of fire to property. One of the primary purposes of prescribed burning is to reduce the fuel load and, therefore, reduce fire hazard. The failure to prescribe burn increases the possibility of a wildfire. It is foreseeable that if prescribed burns are not done in an area over time the possibility of the spread of wildfire is foreseeable. A wildfire is any fire over which DOF has no control. Typically, a fire started by lightning can be controlled and contained. When a lightning strike starts a fire, the spread of that fire is influenced by human intervention. Property usually can be protected from damage as a result of a fire started by lightning.
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 that the outdoor advertising signs maintained by Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation, under outdoor advertising sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, BU 724-55, and BU 726-55 are illegal and must be removed pursuant to law. DONE AND ENTERED this 28th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Gerald S. Livingston, Esquire Livingston & Reilly, P.A. 612 East Colonial Drive, Suite 350 Post Office Box 2151 Orlando, Florida 32802 Thomas F. Barry, Secretary ATTN: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statutes 479.07(1), sign erected without a state permit; Whether the subject signs were in violation of Florida Statutes 479.11(1), sign erected within 660 feet of the right of way of a federal aid highway; Whether subject signs are new and different signs inasmuch as they have new facings, are erected on new poles and are materially elevated from the location of previous signs. Whether subject signs are in violation of the federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued to the Respondent, Stuckey's of Eastman, Georgia, notices of alleged violations of Chapter 479 and Section 335.13, Florida Statutes, on July 28, 1975 with respect to five (5) signs at five (5) different locations, to-wit: .14 miles south of Volusia County on Interstate Highway 95; .75 miles south of Volusia County on Interstate Highway 95; 1.58 miles south of Volusia County on Interstate Highway 95; and 3.51 miles south of Volusia County on Interstate Highway 95. Pursuant to these notices, the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. Respondent is the owner of five (5) signs referred to in paragraph (1) of these findings Five signs with similar copy were erected by the Respondent in May of 1971 at the approximate location of subject signs. The Respondent owned and maintained the five (5) signs from April of 1971 until April-June of 1975 when such signs were removed and the subject signs built. Each of these signs is within 660 feet of the nearest edge of the right of way of an interstate highway system, but each of the signs have a permit attached, first issued in 1971 and reissued through 1974 inasmuch as the former signs were owned by Respondent and lawfully in existence on December 8, 1971, and became nonconforming on December 8, 1971, under Section 479.24(1), Florida Statutes. Between April-June, 1975, the Respondent replaced the signs existing since 1971 to better advertise its products along 1-95, south of Volusia County, Florida. Said replacement signs are in the approximate location as the replaced signs and said replacement signs have the same size facing as the replaced signs. The replacement signs are on different poles, wood being substituted for metal and at a more elevated height (between 16 and 20 feet higher) than the replaced signs. The replacement subject signs are much more visible to the traveling public than the old signs because of the materially increased elevation. The charge in the location of the subject signs, although only a short distance, the new facing materials, the replacement of metal poles with wooden poles and the decided increase in elevation make these different signs within the meaning of Chapter 479, F.S., and the federal regulations, thus, becoming new signs requiring permits rather than qualifying as nonconforming with the customary maintenance or repair of existing signs, allowed under Section 479.01(12), F.S., infra. The owner of the signs was given written notice of the alleged violations and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject signs if said signs have not been removed by the owner within ten (10) days after entry of the final order herein. DONE and ORDERED this 28th day of May, 1976, 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 Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Benjamin F. Wren, III, Esquire 0. Box 329 Deland, Florida 32720
