Findings Of Fact On or about January 8, 1988, a DOT sign inspector observed two of Respondent's signs along U.S. 19, 50 feet north of C.R. 95 and 300 feet north of C.R. 95 which appeared to be on the right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location is 100 feet east and west of the centerline of U.S. 19 and 50 feet east and west of the edge of the pavement of U.S. 19. Respondent's two signs were 34 feet and 38 feet, respectively, from the edge of the paved surface of U.S. 19. On or about January 13, 1988, a DOT sign inspector observed a sign owned by Respondent along U.S. 19, 50 feet north of Lake Street which appeared to be on the right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location extends 55 feet from the easterly edge of the pavement of U.S. 19. A measurement taken from the edge of the pavement to Respondent's sign showed the sign to be 46 feet from the edge of the pavement. U.S. 19 is a Federal Aid Primary Highway. Respondent presented testimony that when its signs were erected they were located no closer to U.S. 19 than the power pole line which is generally located in the DOT right-of- way line.
The Issue Whether the subject sign, owned by Calusa Campground Condominium Association, Inc. (Calusa), is illegally erected because it is (1) located in the right-of-way of the Florida Department of Transportation (the Department) on U.S. Highway 1 in Monroe County, Florida, and/or (2) it does not have a required permit.
Findings Of Fact The Department is an agency of the State of Florida responsible for regulating outdoor advertising signs within 660 feet of certain road systems, including federal-aid primary highways. Calusa is the owner of the subject sign, which is located in Monroe County, Florida, on U.S. Highway 1. The subject sign is located in the Department's right- of-way. U.S. Highway 1 in Monroe County is a federal-aid primary highway, and it has been designated as a scenic highway. With the exception of an "on-premises sign," a permit issued by the Department is required for signs located within 660 feet of a federal-primary highway. The subject sign is not an "on-premises sign." A permit is required for the subject sign. The subject sign does not have the required permit. Calusa was issued a "Notice of Violation - Illegally Erected Sign in Right of Way" on February 23, 2011, and an "Amended Notice of Violation - Illegally Erected Sign in Right of Way" on July 10, 2012. The violations were based on two reasons: (1) the sign lacks required permits, and (2) the sign is unlawfully in the Department's right-of-way. Both notices contained the following: This sign is illegal and must be removed within 10 days from the date of this Notice, pursuant to s. 479.107(1), F.S. If it is not removed within that time, it will be removed and disposed of by the Department without further notice. PLEASE NOTE: If the sign is removed by the Department, all costs associated with the removal will be assessed against the sign owner. . . .
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that the subject sign is illegal and ordering its removal. DONE AND ENTERED this 6th day of November, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of November, 2012. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Michael Healy, Esquire The Silver Law Group, P.A. Post Office Box 710 Islamorada, Florida 33036 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Gerald B. Curington, General Counsel Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Ananth Prasad, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399
Findings Of Fact On December 9, 1986, Respondent owned a sign that had recently been erected along the west side of U.S. 19 in Pasco County, Florida, 37 feet from the nearest edge of the pavement. The DOT right-of-way at this location extends 88 feet west of the western edge of the pavement of U.S. 19. Upon seeing the DOT sign inspector in the vicinity of the sign, an employee of Respondent came to the scene, saw the violation notice posted and offered to relocate the sign off of the right-of-way. The sign in issue was relocated off of the DOT right-of-way within ten days of the notice of the violation. U.S. 19 at this location is a part of the State Highway System.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Department of Transportation (DOT), is the state agency charged with the responsibility of administering and enforcing the Federal Highway Beautification Act, as amended, which pertains to lighting, design and spacing of signs on the interstate, federal and primary highway systems. Respondent, First Coast Outdoor Advertising, Inc. (First Coast), is an outdoor advertising firm located in St. Augustine Beach, Florida, and is the owner of a sign erected on State Road A1A in Flagler County, Florida. Respondent, Motel Delores, is a motel located at 5992 Oceanside Boulevard (State Road A1A) in Flagler County and has a sign erected near its place of business. Both signs are located on the same side of the highway and are subject to DOT's regulatory jurisdiction. The underpinnings of this controversy began in 1966 when Motel Delores decided it would erect a sign with a message reading "Delores Motel & Restaurant". The actual location of the sign is 385 feet south of the intersection of Malacompra Road and State Road A1A, or 10.2 miles north of the intersection of State Roads 100 and A1A, in Flagler County, Florida. At that time, the property on which the sign was erected was owned by Malcolm Johnson. According to Jerrald D. Schatz, who is one of the motel owners, Motel Delores was given permission by Johnson for the sign to be erected on Johnson's property. In 1970, ITT Development Corporation (ITT) purchased Johnson's land. There is no indication in the record that ITT initially lodged any objections to Motel Delores continuing to have its sign located on ITT's property. The date on which DOT began regulating outdoor advertising signs is not of record. However, Motel Delores first learned of the need to obtain a sign permit in early 1977 when a DOT representative advised it that a permit was necessary. Accordingly, respondent made application with DOT for a permit on March 9, 1977, and was issued tag number 5697-02 on March 16, 1977. Thereafter, the tagged sign remained at the same location until March 1990. In 1984, ITT and DOT became embroiled in a civil action over ownership of land on and near State Road A1A where the two signs are now located. In 1986, the lawsuit was settled when DOT and ITT agreed to exchange land in the immediate area. As a result of that settlement, the land on which Motel Delores' sign was located was deeded from ITT to DOT and now constitutes right- of-way on State Road A1A. Without DOT's written permission, the placement of a sign on state right-of-way is prohibited. In March 1990, Motel Delores' sign and tag were stolen by unknown individuals. Within a few days, Schatz began erecting a new sign a few feet closer to A1A. By chance, a DOT sign inspector, William Terry, happened to be traveling on A1A and observed the new sign. After a preliminary investigation was conducted, including contact by DOT with ITT, Terry concluded that the sign was within fifteen feet of DOT right-of-way on a federal primary highway and the sign owner did not have ITT's written permission to have the sign at that location. The inspector was unaware of the fact that DOT and ITT had exchanged land some four years earlier and was under the impression that the land on which the sign was located belonged to ITT. Accordingly, on March 29, 1990, Terry posted a cease work order on the sign and recommended that a notice of violation be issued. The recommendation was accepted by the district administrator of outdoor advertising and a notice to show cause was issued on April 6, 1990. On April 23, 1990, Schatz filed a request for hearing with the DOT district office. In late February 1990 First Coast began erecting an outdoor advertising sign approximately 523 feet north of where the Motel Delores sign was located. In conjunction with this activity, on March 14, 1990, First Coast filed an application with DOT for a sign permit. However, A1A is designated as a part of the federal-aid primary highway system and state law prohibits two permitted signs from being located within 1,000 feet of one another on such a road. Because the DOT "inventory book" for permitted signs carried the tag number for the sign owned by Motel Delores, which was 523 feet south of First Coast's sign, the application was returned to First Coast on March 21, 1990, with a notation by the district administrator that it was "Dis-Approved" (sic). A short time later, Terry posted a cease work order on First Coast's uncompleted sign, and a notice to show cause was issued on April 6, 1990, on the ground the sign did not meet spacing requirements. However, because at that time Motel Delores' sign was on DOT right-of-way without DOT's permission, there was no lawful, permitted sign on the same side of the road within 1,000 feet of First Coast's sign and thus the notice was improvidently issued. Indeed, a DOT representative acknowledged at hearing that Motel Delores' sign was "illegal" at the time the notice to show cause was issued against First Coast. In view of this, First Coast's application for a sign permit should have been approved. On April 19, 1990, First Coast requested a hearing to contest DOT's preliminary decision. Among other things, First Coast contended that the Motel Delores sign was illegally erected and thus its sign met all spacing requirements. For reasons not of record, DOT did not forward this and Motel Delores' first request for hearing to the Division of Administrative Hearings until more than a year later. During this period of time, both respondents completed construction of their new signs and have continued to use them pending the outcome of these proceedings. Even so, DOT agreed at hearing that respondents should not be charged with violating the cease work orders posted on the two signs. On October 17, 1991, DOT advised Schatz by letter that it was "rescinding all violations issued under the (April 6, 1990) notice" because the notice had incorrectly identified the location of the sign as 385 feet north of Malacompra Road when in fact the actual location was 385 feet south of Malacompra Road. Schatz's happiness was short-lived, however, because DOT then issued another notice to show cause on November 1, 1991, alleging that the sign did not have a valid permit tag and was located on DOT's right-of-way. Motel Delores thereafter requested a hearing on November 8, 1991. On November 20, 1991, Motel Delores filed with DOT an outdoor advertising permit affidavit form in which it represented that its sign tag had been stolen and a replacement tag was necessary. The request was approved by DOT on January 14, 1992, and replacement tag number BF 209-25 was issued. On February 1, 1992, or less than a week prior to final hearing, DOT and Motel Delores executed a five year lease agreement whereby DOT agreed that the motel could keep its sign on DOT's property for $200 per year. According to Schatz, he had requested such a lease from DOT in late 1990 and it took more than a year for DOT to formalize the agreement.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the notices to show cause issued against respondents on April 6, 1990, and November 1, 1991, be dismissed with prejudice. It is further recommended that a sign permit be issued to First Coast Outdoor Advertising, Inc. for its sign erected on State Road A1A in Flagler County. DONE and ORDERED this 30 day of March, 1992, at Tallahassee, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 30 day of March, 1992. Vernon L. Whittier, Jr., Esquire 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Gerald S. Livingston, Esquire Suite 1150 200 East Robinson Street Orlando, FL 32801 Jerrald D. Schatz 5992 North Oceanside Boulevard Hammock, FL 32137-2601 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, Agency Clerk 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458
Findings Of Fact During an inspection of signs along U. S. 19, a DOT sign inspector observed Respondent's signs 1/2 and 3/4 mile south of C. R. 582 which appeared to be on the right-of-way of U. S. 19. U. S. 19 is a Federal Aid Primary Highway and a part of the State Highway System. 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 pavement of U. S. 19. Measurements taken from the edge of the pavement of U. S. 19 to the sign 3/4 mile south of C. R. 582 revealed the sign to be 42 feet from the edge of the pavement. The other sign measured 43 feet from the edge of U. S. 19. Accordingly, both signs were on the right-of-way of U. S. 19. Generally, the telephone poles and power line poles are erected along the DOT right-of-way of roads in the State Highway System, and the line of these poles is usually believed to mark the right-of-way boundary. Photographs of Respondent's signs showed those signs to be erected just touching this pole line, but outside that line. Photographs submitted by Respondent also showed other signs clearly on the right-of-way which were not cited as being in violation. One of these signs advertised Job Services of Florida, a state agency. The DOT inspector testified this sign was not cited because he understood state owned signs were exempt from the-no sign on right- of-way statute.
Findings Of Fact Petitioner issued a violation notice on the 29th day of June, 1977, alleging that a sign owned by Respondent located at the northwest corner of Seminole and Pratt-Whitney Road on State Road 80, Palm Beach County, Florida, violated permit, zoning and spacing laws. No application was made for the erection of this sign and none secured from the Florida Department of Transportation. The sign is approximately 12-15 feet west of an existing sign and is approximately 60 feet from the edge of the right of way of the Federal Aid Primary Road 80. The area in which the sign was erected is zoned agricultural. Petitioner contends that the sign violates the set back and spacing requirements of Section 479 and that it was erected in an agricultural zoned area without a permit. Respondent contends that the area is agricultural and is in a remote part of Palm Beach County and that he should be allowed a variance inasmuch as the sign is necessary for the advertising of his business in the rural section of the county.
Recommendation Remove subject sign for failure to obtain a permit and for violation of zoning and spacing laws. There are no provisions for a variance under the facts of this case. DONE and ENTERED this 19th of December, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Allan Black, President Allan Black Construction Corporation Box 5-73 - Wellington West Palm Beach, Florida 33411
Findings Of Fact On or about January 11, a DOT sign inspector observed two signs owned by Respondent on what appeared to be the right-of-way of U.S. 19 in the vicinity of C.R. 576 in Pinellas County. 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 east and west of the edge she paved surface of U.S. 19. U.S. 19 is a Federal Aid Primary Highway and part of the State Highway System Measurements were taken on the distance from the edge of the paved surface of U.S. 19 to the signs. The sign located 500 feet south of C.R. 576 was 35 feet from the edge of the pavement, and the sign 0.1 mile south of C.R. 576 was 38 feet from the edge of the pavement. On or about January 27, 1988, the DOT sign inspector observed a sign 0.75 mile south of C.R. 592 owned by Respondent on what appeared to be the right-of-way of U.S. 19 in Pinellas County. The right-of-way of U.S. 19 in this location is the same as in Finding No. 2 above. Measurements taken of this sign from the edge of the pavement showed the sign to be 38 feet from the edge of the paved surface of U.S. 19, placing the sign some 12 feet inside the right-of-way boundary. Respondent submitted photographs of other signs which appeared to be on the right-of-way of U.S. 19 in the vicinity of Respondent's signs which were not cited for being on the right-of-way. However, during the past year some 2,000 violations have been issued citing signs, principally along U.S. 19, with being located on the right-of-way.
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
The Issue Whether at least one of three signs located in the area of subject sign is in violation of state and federal law. Which signs, if any, are in violation. Whether the subject sign is in violation of the spacing regulation of Chapter 479, Florida Statutes.
Findings Of Fact There are three signs standing on a strip of land adjoining U.S. 19, a Federal Aid Primary Road approximately six (6) miles North of S.R. 60. The spacing requirement is that there must be at least 500 feet between signs. Copy on the sign advertising "Parkview Terrace by U.S. Home" is a two-faced sign with one side blank and is located between two signs which have a permit to advertise although the spacing between the three signs standing is not the required 500 feet. The cited sign presently advertising "Parkview Terrace by U.S. Home" was formerly in a location owned by Artcraft which company did not apply for a permit and which Artcraft informed Complainant was going to be removed. The Complainant did not prosecute for permit violation inasmuch as the inspector was told the sign would be removed and when removed the other to signs involved herein would be eligible for permits. The site was abandoned but Respondent erected another sign in approximately the same location without a permit.
Findings Of Fact A Department of Transportation (DOT) Outdoor Advertising Inspector was doing an inventory, during May, 1987, on U.S. 231, in Jackson County, Florida, when he observed a sign that was visible from the main traveled way of the highway that was not on the sign inventory as being permitted. U.S. 231 is a federal-aid primary highway. The location is 1.78 miles south of SR 73, on the west side of U.S. 231, (southbound side ), and is 32 feet from the right edge of the southbound lane (U.S. 231). The restaurant the sign is advertising is located to the south of the sign, on the east side of U.S. 231, (northbound side). Mr. and Mrs. Cintron purchased the restaurant in October, 1985, and considered subject sign part of the business. The sign in question was erected during the summer of 1985 by the original owner. The Department's Inspector certified that said sign was removed by 6/11/87. There is one business, within 800 feet of the sign site, on the west side, a Gulf station that contains a convenience store and tire store in the same building on the same premises. The sign site is located in an unzoned area within the city limits of Cottondale, Florida. There is a repair business on the west side of the highway and a septic tank business on the east side of the highway. Both businesses are north and in excess of 1600 feet from the site in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a Final Order finding that the sign in question located on U.S. 231, 1.78 miles south of SR 73 East, in Jackson County, Florida, was in violation of the statutes for not having a state sign permit, was properly removed, and does not qualify for issuance of a permit. DONE AND ORDERED this 27th day of October, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2242T The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DEPARTMENT OF TRANSPORTATION DOT's proposed findings of fact 1-3 are adopted in substance as modified in Findings of Fact 1-3. COPIES FURNISHED: Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Eva F. Cintron, Pro Se Post Office Box 56 Cottondale, Florida 32431 Vernon Whittier, Jr., Esquire Rivers Buford, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
