Findings Of Fact On July 15, 1987, the DOT sign inspector observed a sign owned by Respondent in front of McDonald's restaurant on what appeared to be the right- of-way along the western side of U.S. 19, 800 feet south of Lime, in Pinellas County. The DOT right-of-way along U.S. 19 at this location extends 100 feet eastward of the centerline of U.S. 19. The right-of-way line on the western side of U.S. 19 at this location is 55 feet from the westernmost edge of the southbound lanes. Measurements taken from the pavement edge to the sign located the sign 48 feet from the edge of the pavement, which is 7 feet inside the right of way line. When a permit for this sign was obtained by Respondent from the City of Tarpon Springs Planning Department, a sketch accompanying the application (Exhibit 5) located the sign 30 feet from the edge of the pavement of U.S. 19. When cited for being on the right of way, this sign was located further from the pavement of U.S. 19 than landscaping shrubs planted and tended by McDonald's in front of the restaurant. For these reasons, Respondent assumed the sign was legally positioned. The location of the DOT right of way is not readily determinable by a businessman desiring to erect a sign in front of his business. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of location of the limit of the right-of-way. This is specifically true where additional right-of-way has been acquired by DOT along U.S. 19 and other highways. Upon being notified of the citation of this sign for being located on the right-of-way, Herb Selak, owner of Don's Porta Signs, rode up and down U.S. 19 and observed numerous signs located inside the power pole lines which had not been cited. Photographs of those signs were admitted into evidence as Exhibit A written list of those signs provided by Selak for DOT was admitted as Exhibit 10. Selak also observed a DOT vehicle parked in a restaurant parking, and he pulled in and observed one sign inspector emerge from the restaurant with another person and point out the portable sign in front of the restaurant. A photo of this sign showing it to be inside the power pole line was admitted into evidence as Exhibit 9. This sign was not cited by the inspector. Selak made an appointment and proceeded to Bartow to discuss the citing of his signs for violating the right-of-way. He gave a copy of Exhibit 10 to the chief of the outdoor advertising section for DOT District I. Most of these signs were subsequently cited by the DOT inspector for being on the right- of- way. Where signs are located on newly acquired right-of-way, the department takes the position that the sign owner be notified that the sign is in the right-of-way, and he is entitled to a reasonable time in which to remove the sign therefrom.
The Issue Whether the application contains knowingly false or misleading information; or Whether the Department is estopped to revoke the permits.
Findings Of Fact By application for outdoor advertising sign permits dated December 19, 1989 (Exhibit 1), Dolphin Outdoor Advertising requested permits for a sign to be located along I-4 in Polk County, Florida 100 feet west of Kraft Road. The application stated that the proposed sign was 1600 feet from the nearest permitted sign. The District DOT sign inspector to whom this application was referred for processing checked the records for signs located within 1000 feet of the proposed location under the mistaken understanding that the minimum spacing requirement for signs along interstate highways was 1000 feet. After determining there were no valid conflicting signs, the inspector, who had been employed by the department approximately six months, approved the application and tags numbered AY 108-35 and AY 109-35 were issued on February 24, 1989. In the interim, the applicant, upon learning that his application would be approved, contacted the landowner and entered into a lease for the property and on February 17, 1989, paid Florida Log and Timber $5000 for the first year's lease (Exhibit 11) on this property. The applicant also paid the finder of the site some $4300 for services and expenses in November, 1988. (Exhibits 7 and 8) In mid-March 1989, while discussing these permits with her supervisor, the inspector who had issued the permit to Respondent learned that the required spacing between signs along interstate highways is 1500 feet instead of 1000 feet which is the minimum spacing along federal-aid primary highways. By letter dated March 17, 1989 (Exhibit 3) the Department advised Respondent that permits AY 108-35 and AY 109-35 were issued in error because of a valid existing permit for a sign located 1056 feet west of Respondent's proposed sign. The permits were therefore stated to be no longer valid, and these proceedings followed. Petitioner's letter of March 17, 1989 was received by Respondent before construction on the sign started but after Respondent received a building permit from Polk County dated February 27, 1989 at a cost to Respondent of $101.20.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued revoking permits AY 108-35 and AY 109-35 issued to Dolphin Outdoor Advertising for a sign along I-4 100 feet west of Kraft Road in Polk County. DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Scott Hill, Pro Se 1718 Golfside Drive Winter Park, Florida 32972 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.
Recommendation It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. COPIES FURNISHED: Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58 Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Frank J. Seiz 4811 Palmetto Point Road Palmetto, FL 34221-9721 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact Respondent, Henderson Sign Service, erected and owns a sign located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida. The sign is visible from the main traveled portion of Interstate Highway 10. At the time of the filing of the petition in this cause, and as recently as October 2, 1978, no permit tag was affixed to the sign structure. In addition, the sign structure is located 123 1/2 feet from the white line on the highway at the outside edge of the eastbound lane. At all times material to this proceeding the sign in question bore advertising copy which read "Plantation House, pool, bus tour, restaurant, Quality Inn". Respondent had not applied to DOT for the issuance of a permit for the sign in question as of the date of the hearing in this cause. Any proposed finding of fact submitted by the Respondent and not incorporated in this Recommended Order was either rejected or deemed irrelevant.
Findings Of Fact On July 24, 1987, a DOT outdoor advertising sign inspector observed a portable sign in front of Respondent's business establishment along U.S. 19 just north of SR 696A. The right-of-way along the west side of U.S. 19 extends 54 feet from the western edge of the pavement of U.S. 19. The sign was located 42 feet from the western edge of the pavement of U.S. 19. Thus the sign was clearly within the right of way. Respondent presented testimony that the widening of U.S. 19 had already led to the taking of half its property including a large sign advertising the business, and the development of sink holes had caused the sign to be moved closer to the highway.
The Issue Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this controversy, Petitioner, Department of Transportation (DOT), seeks to revoke a permit (No. BP844) for an off-premise outdoor advertising sign owned by Respondent, National Advertising Company (Respondent), an entity now known as "Infinity Outdoor," on the grounds that the original sign was destroyed by a hurricane in October 1999, the sign has lost its nonconforming status, and Respondent cannot lawfully rebuild the structure. In response to these charges, Respondent contends that after the sign was damaged, unknown persons stole the damaged structural pieces that were going to be used in part to rebuild the sign. Under a theory first disclosed at hearing, Respondent went on to contend that if those materials were still available, it could qualify for a seldom, if ever, used exception found in Rule 14-10.007(1)(d), Florida Administrative Code, which would otherwise allow it to reconstruct the sign. That rule provides in part that a sign will not be considered destroyed if the owner can demonstrate that "the replacement material costs to reerect the sign would not exceed [fifty percent] of the value of the structural materials in the sign, immediately prior to destruction." Using that provision, Respondent argues that much of the sign's structure could have been rebuilt with the now- stolen materials, and the remaining "replacement material costs" would not exceed the threshold in the rule. The sign was erected in 1968 before spacing requirements for signs were first adopted in 1972; therefore, unless it is destroyed, the sign can continue to qualify for nonconforming status as long as it remains substantially the same as it was as of the date it became nonconforming. Because the sign is situated on U.S. Highway 1 in Brevard County, a federal-aid primary highway, and another permitted sign lies approximately 200 feet away, under current spacing requirements, a sign cannot be rebuilt on the same site. This is because current spacing requirements prohibit two signs from being closer than 1,000 feet apart on a federal-aid primary roadway. The sign in question is located adjacent to U.S. Highway 1, 0.341 miles north of Florida Memorial Gardens in Brevard County, Florida. In October 1999, Hurricane Irene tracked northward along the eastern coast of Florida causing extensive wind damage, including substantial damage to Respondent's sign. Photographs received in evidence as Petitioner's Composite Exhibit 3 show the condition of the sign on October 26, 1999, or shortly after it was damaged by the hurricane. Among other things, two of the five support poles (which were buried to a depth of eight feet) were "splintered" approximately two to three feet above ground level, while the other three were "knocked over" and "broken" at ground level. The wooden facing of the sign "had been knocked up against a pine tree" and the wooden plywood "panels [on which the sign message is printed] were split." The "stringers," whose numbers were variously described in the record as nine and sixteen, and which measure 2 x 4 x 20 feet and support the backside of the structure between the poles, were also damaged. The condition of the sign is corroborated by similar photographs taken on October 18 and 22, 1999, by a code enforcement officer of Brevard County. In the judgment of the DOT inspector who visited the site shortly after the hurricane, none of the damaged structural materials (poles and stringers) could be reused due to the amount of damage caused by the hurricane's winds. However, the inspector was unable to assign a replacement cost for any of those structural materials, or the replacement value of the sign immediately prior to its destruction. On an unknown date, but after the photographs were taken by DOT on October 26, 1999, Respondent's operations manager, Billy Nichols (Nichols), instructed a subcontracting crew to inspect each of the company's signs and to drop off at each sign location "what they thought we may have needed" to repair the signs. After inspecting the sign in question, the crew deposited five brand new poles at the site. Respondent takes the position that it always intended to use a combination of old and new materials, rather than all new materials, to repair the damaged sign. The date on which this decision was made by Respondent is not apparent in the record. In addition, despite a lack of clarity in the record, in its post-hearing filing, Respondent represents that the new poles were deposited at the site before the damaged materials were removed. However, it can be reasonably inferred from the evidence that based on the subcontractor's actions, Respondent originally intended to replace virtually the entire structure since five new poles were dropped off at the site of the sign; after a Citation was issued, Respondent apparently decided to reerect the sign under the theory proposed at hearing. Sometime after November 8, 1999, when DOT issued its Citation, Respondent maintains that much of the debris from the site, including the damaged poles and stringers, was unlawfully removed by unknown persons, resulting in Respondent being forced to rebuild the sign with all new materials. The new poles, however, were not removed and remained at the site. Because of the Citation, no work has occurred pending the outcome of this proceeding. In applying the terms of the rule relied upon by Respondent, DOT ascertains the cost of the sign and the replacement materials by utilizing cost data from retail stores, such as Home Depot or Lowe's, on a date as close to the date of destruction as is possible. In this case, that date would fall in September or October 1999. In addition, even if a sign owner decides to repair his sign with used or recycled materials, those materials would still be valued as if they were new. Further, only items such as supporting braces (stringers) or members of the sign structure (support poles) qualify as structural materials. This means that the sign facing would not be considered a structural component within the meaning of the rule. Finally, any old materials from the original sign that were reused would not be a part of the overall cost. Apart from the cost issue, in reconstructing the sign, the owner must return the sign to substantially the same configuration as before the damage. Thus, any change in the height or width of the sign facing, the number of feet that the sign sits above the ground, the structural safety of the sign, or the size of the replacement materials, might constitute a substantial change and prohibit reerection. In the case at bar, the testimony establishes that if Respondent proposes to change the height of the sign, the type of structural materials used, or the number of support poles, this would constitute a substantial change in the sign and disqualify Respondent from utilizing the exception in the rule. Although the rule does not specifically require such information, to prove that materials were stolen by unknown persons, historically DOT has required that the owner submit a police report confirming that materials were stolen. In this case, no police report was ever filed by Respondent, nor did it file a claim with its insurance company for the value of the materials allegedly stolen. Respondent submitted cost data from three local "supplier[s]" confirming that the value of the structural components of the sign just prior to its being damaged was not greater than $1202.00. This figure was derived by taking the cost of five new poles at $202.00 per pole, or $1010.00, and sixteen new stringers at a cost of $12.00 per stringer, or $192.00. Respondent's suggestion that the cost of plywood for the new sign facing ($636.00) should also be counted as a structural material has been rejected since that component does not qualify as such a material under the rule. Respondent's operation supervisor (Nichols) offered two alternatives for repairing the sign. First, he suggested that by lowering the structure below its previous height, he could reerect the sign using only two new poles. This alternative, however, would substantially change the sign's configuration and violate the terms of the rule. Second, in order to keep the sign at its original height, Nichols stated that he would purchase three new poles and "stub" two of the damaged poles by adding two more stringers. The second option would cost only $630.00, but under this alternative, the value of the replacement materials would exceed fifty percent of the cost of the structure ($1202.00) just prior to the sign being damaged. Then, too, the record shows that by making this type of repair, the sign facing would be weaker, making it less safe; its wind load would be changed; and the sign height would be lower. Thus, these modifications would constitute a substantial change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by National Advertising Company under Permit No. BP844 has been destroyed, is nonconforming, and cannot be reerected. The permit should also be revoked. DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 day 12th of May, 2000. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation Attn: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact On or about August 11, 1987, a DOT sign inspector observed a portable sign opposite Respondent's place of business advertising Respondent's business and exhibiting Respondent's telephone number, which appeared to be on the right- of-way of U.S. 41 in Pasco County. The right-of-way of U.S. 41 at this location extends fifty feet east and west of the centerline of U.S. 41 and 38 feet from the edge of the paved lane on the east side of U.S. 41. Respondent's sign was located 28 feet from the edge of the northbound lane of U.S. 41, some 10 feet inside the eastern right-of-way line at this location. Respondent has occupied the same building for the past 10 or 11 years and the sign, which is portable, has been in the same location since she opened her salon. No one ever told Respondent that the sign was located on the DOT right-of-way before the sign was cited for the violation. As soon as she was advised the sign was illegal Respondent relocated the sign off the right-of-way.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 3115 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
Findings Of Fact On July 20, 1987, a DOT sign inspector observed a portable outdoor advertising sign along U.S. 19 near the intersection of 108th Street North in Pinellas County which appeared to be located on the DOT right-of-way. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the edge of the paved lane. Measurements taken showed the sign to be 38 feet from the edge of the pavement. Photos taken of the sign at the time the sign was inspected reveal that the sign was damaged with the frame bent. Around noon of the day the sign was inspected, Respondent was notified by the user of the sign that the sign's frame had been bent and the sign damaged. A second call to Respondent around 1:30 P.M. advised that a warning notice had been placed on the sign. When Herb Selak arrived at the scene shortly thereafter, he observed the anchor missing from the sign and the sign damaged apparently having been hit by a construction company vehicle and pushed off of the parking lot where it had been located and anchored. Prior to the unauthorized removal of the sign onto the right-of-way by a third party, the sign was lawfully placed.
The Issue As to DOAH Case Nos. 14-4926 and 14-4927, the issues are whether the billboards identified in the notices of violation are located on the premises of Respondent's business and, thus, exempt from licensure; and, if not, whether the billboards are eligible for licensure pursuant to section 479.07, Florida Statutes, or, alternatively, the "grandfather" provision set forth in section 479.105, Florida Statutes. With respect to DOAH Case No. 14-4928, the issue is whether Respondent engaged in, or benefitted from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact I. DOAH Case Nos. 14-4926 & 14-4927 The Parties The Respondent in these proceedings is I-10 Pecan House, Inc. ("Pecan House"), an entity currently owned and managed by Olan Q. Nobles. As discussed in greater detail below, Pecan House is a small country store that has conducted business in Jefferson County, Florida, for nearly 40 years. The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 600 feet of, and visible from, interstate highways. The Events In or around 1976, Erma Jean Walker (Mr. Nobles' sister) and her husband, Lyman Walker, III, purchased three tracts of land that are relevant to this proceeding. The first such parcel, upon which the Walkers quickly constructed an open- air market, comprises one acre and is located on State Road 257, immediately north of the intersection of that roadway and I-10. The second relevant parcel, .18 acres in size and located a short distance to the southeast of the first tract, is situated adjacent to the westbound lanes of I-10. Upon their acquisition of this parcel, the Walkers constructed a billboard that advertised the open-air market and the related business activities conducted on the third parcel. The third parcel, which is roughly 2.3 acres in size and likewise adjoins the westbound lanes of I-10, is located less than 1000 feet to the east of the second tract. It is upon this tract that, in mid-to-late 1976, the Walkers built a concrete structure to be used for the purpose of manufacturing candy and jelly——products the Walkers offered for sale at the nearby open-air market. By the end of 1976, the Walkers also constructed (upon the third parcel) a billboard advertising the open-air market and jelly/candy manufacture. Although the billboards referenced above were visible from I-10 and located within 600 feet of the roadway——and, thus, within the Department's "controlled area"——the Walkers did not apply for outdoor advertising permits. This is because, as the Department concedes, the billboards were exempt from licensure from 1976 until the mid-1990s (or perhaps later, as Mr. Nobles asserts) under the "on premises" exemption set forth in section 479.16, Florida Statutes. Under the definition of "premises" in effect during that period, the land upon which a sign was located did not need to be contiguous to the advertised business in order for the exemption to apply. For reasons that will soon be apparent, it is necessary to inject a third billboard into this discussion: in 1993, the Walkers constructed on the third tract of land a "double-stack" billboard, which is situated less than 200 feet and 1000 feet, respectively, from the signs erected in 1976 upon the third and second tracts. Although the double-stack billboard would have ostensibly satisfied the on-premises exemption, the Walkers nevertheless applied for——and were granted——an outdoor advertising permit. For all that appears, the Department has never initiated any proceedings to revoke the permit, which remains valid to this day. In 1995, Mrs. Walker transferred control of Pecan House to Mr. Nobles, who until that time had assisted the Walkers on an as-needed basis. Soon thereafter, Mr. Nobles upgraded the open-air market (on the first parcel) to a secure building and, of particular relevance here, ceased all manufacturing activities at the concrete building (on the third parcel). At or around that time, the Legislature amended the definition of "premises" to include a contiguity requirement.3/ This is significant, for the second and third parcels——the locations of the two billboards at issue herein——are not contiguous to the first parcel but, rather, are separated by a tract in which neither the Walkers nor Mr. Nobles holds a leasehold or ownership interest. Further, there is no recorded easement connecting Mr. Nobles' three parcels. Thus, although the two billboards constructed in 1976 lost their on-premises status in the mid-1990s, this fact apparently went unnoticed by the Department for roughly 13 years. Then, in March of 2008, the Department issued notices of violation in connection with both billboards. Among other things, the notices alleged that "outdoor advertising permit[s] [were] required, but ha[d] not been issued" for the billboards, which Mr. Nobles was instructed to remove within 30 days. A short time thereafter, an inspector or other agent of the Department conducted, in Mr. Nobles' presence, an examination of the 1976 billboards and Pecan House's business operations. At the conclusion of her inspection, the Department employee erroneously opined that, in fact, there was "no problem"4/ with the billboards in question, which Mr. Nobles reasonably took to mean that the signs continued to satisfy the on-premises exemption and, thus, were exempt from licensure. The reasonableness of this understanding was bolstered by the fact that, subsequent to the inspection, Mr. Nobles heard nothing more from the Department concerning the March 2008 notices of violation.5/ More than four years later, on December 17, 2012, the Department issued new notices of violation in connection with the 1976 billboards: notice 1352, relating to the billboard constructed upon the third parcel, which presently reads "Exit Now" and bears a Shell gasoline logo (hereinafter "Exit Now"); and notice 1487, relating to the billboard erected upon the second parcel, which presently reads "Welcome to Big O's / We Appreciate Your Business" (hereinafter "Big O's"). The parties thereafter engaged in settlement negotiations, in the course of which Mr. Nobles' counsel struggled mightily to convince the Department that the billboards continued to satisfy the on-premises exemption. When the Department rejected this argument, Mr. Nobles applied for an outdoor advertising permit for each billboard. The applications were ultimately denied, prompting the Department to refer the matters to DOAH for further proceedings. Based upon the evidence adduced at final hearing, it is evident that the billboards in question no longer meet the on-premises exemption and, thus, are subject to removal unless the signs meet either the current statutory requirements for a permit or, alternatively, the "grandfather" provision set forth in section 479.105, which authorizes licensure if the billboards satisfy earlier statutory criteria and certain other conditions. Eligibility for Licensure – "Exit Now" Beginning first with the "Exit Now" billboard, the record makes pellucid that the current statutory requirements for licensure cannot be satisfied. Among other things, the sign is located a mere 190 feet from the permitted, double-stack billboard erected in 1993, a distance far less than the minimum spacing requirement of 1500 feet. See § 479.07(9)(a)1., Fla. Stat. As for the potential applicability of the grandfather provision to the "Exit Now" billboard, it is critical to observe that the Department's delay of nearly five years (March of 2008 through December of 2012) in pursuing removal has placed Mr. Nobles at a significant disadvantage. In particular, had the Department moved forward in 2008——instead of inexplicably abandoning the action, which, along with the statements of its inspector, led Mr. Nobles to believe, incorrectly, that no permit was required——Mr. Nobles likely would have applied for a permit,6/ which the Department would have evaluated pursuant to the version of the grandfather provision in effect at that time. This is significant, for the 2008 codification of the grandfather provision, which remained unchanged until July 1, 2014, did not preclude licensure in situations where a billboard had previously enjoyed on-premises status or some other recognized exemption from the permitting requirement. Further, the pre-July 1, 2014, grandfather provision was quite favorable in that it allowed a potential licensee to demonstrate that the billboard would have met the criteria for licensure in effect "[a]t any time during the period in which the sign has been erected." § 479.105(1)(e)2., Fla. Stat. (2013)(emphasis added). The current version of the grandfather provision is quite a different animal. For one thing, grandfather status can only be granted if the billboard at issue "has never been exempt" from permitting. § 479.105(1)(c)2., Fla. Stat. (2014) (emphasis added). For another thing, the current grandfather provision looks not at "any" time in which the sign has been erected but, rather, at the criteria in effect during the initial seven years in which the sign was subject to the Department's jurisdiction. § 479.105(1)(c)2.b., Fla. Stat. (2014). As Mr. Nobles readily acknowledges, his effort to obtain a permit for the "Exit Now" billboard is a nonstarter under the 2014 version of the grandfather provision, whose plain language prohibits the issuance of a permit where, as here, the sign was previously exempt from licensure. This does not end the matter, however, for the undersigned finds that the Department's unjustified delay in pursuing removal——along with its agent's erroneous statement that the billboard was legal, upon which Mr. Nobles relied——requires that the "Exit Now" application be evaluated under the version of the grandfather provision that was in effect from 2008 until July 1, 2014. Pursuant to the pre-2014 codification of section 479.105, "grandfathering" was authorized if the owner could demonstrate: 1) that the sign in question had been unpermitted, structurally unchanged, and continuously maintained at the same location for at least seven years; 2) that, at any time during the period in which the sign has been erected, the sign would have satisfied the criteria established in chapter 479 for issuance of a permit; 3) that the Department did not file a notice of violation or take other action to remove the sign during the initial seven-year period in which the sign was unpermitted, structurally unchanged, and continuously maintained at the same location; and 4) that the sign is not located on a state right-of-way and is not a safety hazard. § 479.105(1)(e), Fla. Stat. (2013). Upon such a showing, the Department was authorized to treat the sign as conforming or nonconforming and issue a permit. Turing to the merits, the first prong is easily satisfied, as the "Exit Now" sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for 39 years, far longer than the seven-year period the statute requires. The third prong is also met, for the record makes clear that the Department took no action to pursue removal during the initial seven-year period, i.e., 1976 through 1983, in which the sign was unpermitted, structurally unchanged, and continuously maintained. In addition, the Department stipulates that the sign neither poses a safety hazard nor is located upon a state right-of-way, thereby satisfying the fourth prong.7/ This leaves only the second prong, which asks if the sign would have met the criteria for licensure at any time after it was erected. The selection of any time period subsequent to 1993 would surely doom the application, as the sign would be unable to satisfy the minimum spacing requirement due to its close physical proximity to the double-stack billboard——which, as noted previously, was issued a permit in 1993 and remains licensed. Prior to 1993, however, there does not appear to be any spacing conflict that would preclude licensure in this instance.8/ With the spacing concern resolved (and the relevant period of inquiry narrowed to "any" time between 1976 and 1993), the undersigned turns to the only other criterion for licensure that appears to be in dispute: section 479.111(2), Florida Statutes, which authorizes the issuance of a permit only if the sign is located in "commercial-zoned and industrial-zoned areas or commercial-unzoned or industrial-unzoned areas." Unfortunately, this issue cannot be resolved on the instant record, for there is a dearth of persuasive evidence concerning the zoning designation of the third parcel (the location of the "Exit Now" sign) during the critical period of inquiry. Indeed, the record contains only the Department's speculative assumption that, because the area is presently unzoned, it therefore must have been unzoned at all times in the past.9/ Further, even accepting the Department's assumption at face value, it is impossible to determine whether the business activities conducted on the parcel from 1976 until the mid- 1990s——namely, the manufacture of candy and jelly and the sale of pecans——would satisfy the use test at any time between 1976 and 1993.10/ Under ordinary circumstances, such an absence of evidence would necessitate an adverse result for the permit applicant. Owing, however, to the unusual history and posture of this case, as well as the undersigned's conclusion that the pre-2014 grandfather provision should govern, it is recommended that the Department reevaluate Mr. Nobles' application to determine if the third parcel could have satisfied the requirements of 479.111(2) at any point between 1976 and 1993. Eligibility for Licensure – "Big O's" The undersigned turns next to the "Big O's" sign, which, like the "Exit Now" billboard, is unable to satisfy current licensing criteria due, among other reasons, to its close proximity to the double-stack billboard.11/ Further, as with the "Exit Now" billboard, the fact that the "Big O's" sign was previously exempt from licensure (owing to its on-premises status from 1976 through the mid-1990s) renders it ineligible for licensure under the 2014 codification of the grandfather provision. However, in sharp contrast to the "Exit Now" billboard, the "Big O's" sign is positioned within 500 feet of an interstate exit ramp, thereby constituting a safety hazard. This distinction is fatal to Mr. Nobles, as every codification of the grandfather provision from the mid-90s (when the sign lost its on-premises status) onward has prohibited the licensure of billboards that present a safety issue. The short of it, then, is that the sign was no more eligible for licensure in the past than it is today, which obviates the need for any further analysis under the pre-2014 version of the grandfather provision. For the reasons articulated above, Mr. Nobles has failed to prove that the "Big O's" sign is exempt from licensure by virtue of the "on-premises" exception. Further, the evidence conclusively demonstrates that, due to safety concerns, the sign would not have been eligible for licensure at any point in time. Accordingly, the undersigned is constrained to recommend the sign's removal pursuant to section 479.105. II. DOAH Case No. 14-4928 As noted earlier in this Order, DOAH Case No. 14-4928 involves an allegation that Mr. Nobles engaged in——or benefitted from——the unpermitted removal, cutting, or trimming of vegetation. The relevant facts are recounted below. On January 21, 2013, Mr. Nobles executed a lease agreement with Michael McDougal, who owns a parcel of land adjacent to the eastbound lanes of I-10, approximately .6 miles from County Road 257. In relevant part, the terms of the lease authorized Mr. Nobles to place on the property a pickup truck, attached to which was a billboard that advertised the I-10 Pecan House. Shortly thereafter, in late January 2013, Mr. Nobles relocated the truck to a position on Mr. McDougal's property a short distance to the south of the fence line that separates the parcel from the Department's right-of-way. But trouble soon followed: in late February or early March, the Department received several reports of unusual vegetation removal in the general area of Mr. Nobles' truck sign. In response, the Department requested one of its contractors, Metric Engineering, Inc. ("Metric"), to conduct a field inspection of the area. The inspection was performed on or about March 12, 2013, by Bill Armstrong, a certified arborist employed by Metric. During the course of his inspection, Mr. Armstrong observed, first, an area that the Department had previously cleared to facilitate the installation of a new fence, which had yet to be installed. This particular area, which ran along the length of the fence line and had been cleared within the preceding six months, had a width (as measured from the fence toward the roadway) of approximately 12 feet. Immediately beyond this 12-foot zone, however, Mr. Armstrong noticed evidence of other activity that had occurred much more recently. Specifically, Mr. Armstrong observed, on the side of the fence immediately opposite Mr. Nobles' truck, an area 120 feet in length (parallel to the fence line) and approximately 25 feet in width that had been cleared of vegetation. Within this 120 by 25 foot area, Mr. Armstrong discovered 30 tree stumps, which, upon close examination, exhibited signs of having been recently cut. Such indications included the presence of sawdust; the fact that the stumps were bright in color and relatively clean; and the observation of fresh debris at both ends of the swath. These findings were recorded in a report dated March 25, 2013, which Metric promptly forwarded to Morris Pigott, the Department's Project Manager of Vegetation and Resource Management. Several weeks later, Mr. Pigott conducted his own site visit, during which he examined the particular area that had concerned Mr. Armstrong. Consistent with the findings contained in Metric's report, Mr. Pigott observed, within the 120 by 25 foot area, numerous, freshly-cut tree stumps. Mr. Pigott further concluded, quite reasonably, that this activity had not been performed by the Department or one of its contractors, for the stumps had not been cut to ground level, the vegetation immediately to the east and west of the area was "very dense," and the area had not been "grubbed."12/ (As explained during the final hearing, "grubbing" involves the removal of the top six inches of surface material, an action designed to prevent regrowth.) To cinch matters, Mr. Pigott observed that the selective clearing of the 120 by 25 foot area had enhanced the visibility of Mr. Nobles' truck-mounted billboard for eastbound traffic. Thereafter, on April 14, 2013, Mr. Pigott cited Mr. Nobles for violating section 479.106(7), which provides that any person who engages in or benefits from the unauthorized removal of vegetation shall be subject to an administrative penalty. Mr. Pigott further notified Mr. Nobles that, pursuant to Florida Administrative Code Rule 14-10.057, the Department intended to assess mitigation in the amount of $8,304.25. Mr. Nobles promptly denied any and all involvement in the removal, claiming that a road crew had cleared the vegetation two years earlier. In response, Mr. Pigott contacted Mr. Armstrong, disclosed Mr. Nobles' explanation, and asked that a follow-up inspection be performed. Mr. Armstrong conducted his second inspection on August 8, 2013. At that time, Mr. Armstrong observed that Mr. Nobles' truck-mounted billboard was still present, and that the stumps within the 120 by 25 foot area had sprouted and grown to a height of two to three feet. Samples of the sprouts were collected, which Mr. Armstrong later examined for evidence of internodes——i.e., rings that denote growth, with one ring forming during each growing season. Due to the absence of internodes, Mr. Armstrong concluded that the stumps were in their first growing season, thereby eliminating any possibility that the vegetation had been cleared several years earlier.13/ Finding that the evidence proves clearly and convincingly that Mr. Nobles benefitted from the unauthorized vegetation removal, the undersigned turns finally to the question of mitigation. As noted above, the Department seeks mitigation in the amount of $8,304.25, a figure derived from Mr. Armstrong's use of the formula referenced in rule 14-10.057. It is at this juncture that the Department's case falters. Although Mr. Armstrong offered credible testimony concerning the number and species of trees (water oaks, Florida maples, and the like) that were removed from the area, the record evidence regarding their market value consists entirely of hearsay. Indeed, the Department called no witness who possessed any firsthand knowledge as to the market value of the trees; instead, it presented only the testimony of Mr. Armstrong, who explained that he had telephoned three nurseries, obtained price quotes over the phone, averaged the three figures, and plugged the averages into the formula. To be clear, the undersigned has no quarrel with either the formula or Mr. Armstrong's initial reliance upon the price quotes. The problem is that, in the absence of a stipulation from Mr. Nobles concerning the amount of mitigation, the Department was obligated to adduce at least some non-hearsay evidence of the market values——the starting point of the calculations. Inasmuch as the record is devoid of such evidence, the Department's request for mitigation must be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: DOAH Case No. 14-4926 RECOMMENDED that the Department of Transportation enter a final order finding that the billboard identified in Notice of Violation 1487 ("Big O's") is illegal and subject to removal pursuant to section 479.105, Florida Statutes. It is further recommended that the Department enter a final order denying the related application for an outdoor advertising permit. DOAH Case No. 14-4927 RECOMMENDED that the Department of Transportation take no further action on Notice of Violation 1352 until such time that it reevaluates (under the pre-July 1, 2014, codification of section 479.105) the related application for an outdoor advertising permit. If the application is granted, the Department should enter a final order dismissing Notice of Violation 1352. In the event, however, the application is once again denied, the Department should afford Respondent a point of entry into the administrative process. DOAH Case No. 14-4928 RECOMMENDED that the Department of Transportation enter a final order finding Respondent guilty of violating section 479.106, Florida Statutes, and imposing an administrative fine of $1,000.00 DONE AND ENTERED this 4th day of May, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 4th day of May, 2015.
