Findings Of Fact Petitioner, Elgie Products (Elgie), is a partnership whose general partner is Richard J. Connolly, Sr. The mailing address of the business is 3000 Southwest 26th Terrace, Fort Lauderdale, Florida. At the present time, Connolly and his wife are engaged in the business of raising bees, making draperies and installing plexiglass under the name of Elgie Products. They also reside at the same location. Elgie's property consists of slightly more than four acres and lies one block south of State Road 84 and two blocks west of Interstate 95 in a small unincorporated pocket of Broward County, Florida. It is less than one-half mile from the Fort Lauderdale-Hollywood International Airport. The area is zoned M1 (light industrial, small manufacturing) and has only a few residential dwellings in the area including that of petitioner. A metal dump yard for wrecked automobiles lies just east of petitioner's property, a Days Inn Motel is on its north side, and DOT construction material and equipment associated with Interstate 595 lie to its south. By its application, petitioner seeks to place an outdoor sign on its property. The sign will be leased to an air carrier, and the revenues derived therefrom used to supplement the Connolly's income. After reviewing the application, respondent, Department of Transportation (DOT), issued proposed agency action on May 21, 1986 denying the application on the ground the sign would be within 500 feet of a restricted interchange. The denial prompted the instant proceeding. Through unknown and perhaps unfortunate circumstances, DOT decided to locate and construct Interstate 595 on an east-west alignment less than 1000 feet south of petitioner's property. In fact, the entrance ramp to I-595 will be situated less than 500 feet from the proposed site of petitioner's sign. Moreover, the sign will be visible to traffic using I-595. It is also located within 660 feet of I-595 right-of-way. Such a placement of the sign is impermissible under DOT's rules and governing statutes. Petitioner contends that DOT made an exception to its rules almost seven years ago when it approved an application filed by 3-M National Advertising Company to place an outdoor advertising sign at the intersection of State Road 84 and I-95 even though the sign was less than 150 feet from I-95 and was visible to traffic using that highway. In this regard, a DOT outdoor sign administrator acknowledged that he may have been in error when he approved the application in late 1979. However, the City of Davie has subsequently annexed the area where 3-M's sign is located, and 3-M is now exempt from DOT enforcement action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Elgie Products be DENIED. DONE and ORDERED this 9th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1986.
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2001.
Findings Of Fact Clare A. Guenther is the sole owner and president of Western Gate Sign Company located at 8604 North Old Palafox in Pensacola, Florida. Western Gate had acquired Smith Advertising in February of 1977. Mr. Guenther testified that he had been told repeatedly by a former DOT inspector that he did not need a permit tag on the sign in question because it had been "grandfathered in." However, this former DOT employee was not present at the hearing for testimony. Mr. Guenther acknowledged that Western Gate Sign Company had received a letter from DOT dated December 18, 1978, notifying all outdoor advertising licensees and permittees that permits will be required for all signs within city or town limits, and allowing a 60 day period within which permits could be applied for. At this time, however, Mr. Guenther was under a doctor's care, and he relied totally on the former DOT inspector in most matters relating to road signs. Nevertheless, no application for a sign permit was filed by Western Gate for the subject sign. Mr. Guenther testified that the representatives of Smith Advertising who were familiar with the erection of the sign in question Passed away in October of 1982, and Mr. Guenther admitted that he was not present when the sign was erected. He had no documents other than a lease dated September 9, 1971 to show when the subject sign was actually erected. Sometime during the years 1977 or 1978, Western Gate changed the face of the subject sign by replacing the boards. This amounted to a replacement of more than 25 percent of the value of the entire sign. Emory F. Kelley, District Administrator, Outdoor Advertising, Department of Transportation, is responsible for controlling outdoor advertising in the 16 counties of the third district, including Escambia, on federal aid and primary roads and interstate highways. He makes decisions on applications for outdoor advertising permits based on his review and the recommendation of the inspector who viewed the site. The sign in question is within the city limits of the City of Pensacola, and is located approximately 500 feet north of State Road 289-A on Interstate Highway 110, facing south. It is a DOT policy to consider applications for sign permits on a first come, first serve basis. When the permit application was received from Western Gate Sign Company, it was transmitted to Sandi Lee, a local DOT inspector, to be checked out. Ms. Lee's inspection showed that there were existing permitted signs less than 1,000 feet from the site of the sign in question, on the same side of the road, facing the same direction. Using the DOT computer inventory, the permitted sign south of the sign in question is one with permit number 8737-10 at mile 1.55. The permitted sign north of the sign in question is one with permit number AE559-10 at mile 1.75. The milepost locations indicated on the computer inventory begin at Maxwell Street on I-110 and move in a northerly direction. The distance between Maxwell Street and State Road 289-A is approximately 1.5 miles, which would place the southerly permitted sign, number 8737-10, .05 miles or approximately 264 feet north of SR 289-A, and place the northerly permitted sign .25 miles or approximately 1320 feet north of SR 289-A. Permit number 8737-10 was approved on May 7, 1976, and permit number AE559-10 was approved on March 4, 1982. The application for the sign in question, submitted by Western Gate Sign Company, was dated June 2, 1982, and was received in the DOT district office on June 3, 1982. Sandra Lee, Outdoor Advertising Inspector, Department of Transportation, performs field inspections for permit applications on federal aid, primary and interstate highways. She conducted the field inspection for the subject permit application. Using a roll-a-tape device, she measured the distance of the sign in question as approximately 150 feet from a previously permitted board. The subject sign is on the same side of the road as the permitted sign, facing in the same direction, located inside the corporate limits of Pensacola, on a section of interstate highway open to travel by the public. It is a six foot by twelve foot sign which is visible from the interstate highway and is located 20 to 25 feet from the right-of-way line.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Western Gate Sign Company for an outdoor advertising permit for a sign on Interstate Highway 110, five hundred feet north of State Road 289-A, facing south, be denied. THIS RECOMMENDED ORDER entered this 2nd day of March, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: Clare A. Guenther, President Western Gate Sign Company 8604 North Old Palafox Pensacola, Florida Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the Holmes County Commission zoned the area around the intersection of I-10 and State Road 79 primarily for the purpose of permitting outdoor advertising structures? Whether the DOT may deviate with explanation from the plain meaning of its rule as set forth in Best Western I, or must adhere to the legislative mandate in Chapter 84-173, Laws of Florida to follow its rules?
Findings Of Fact Based upon the stipulation of the parties, the following findings of fact are made: The advertising structures at issue are outdoor advertising signs. (T. 25.) Said signs are located within 600 feet of Interstate Highway 10 (I-10) in Holmes County, Florida. (T. 25.) Said signs are located as follow: On I-10 1.0 mile east of State Road 79, facing east (Case No. 82-391T) On I-10 0.51 mile west of State Road 79, facing west (Case No. 82-392T) On I-10 0.83 mile east of State Road 79, facing east (Case No. 82-393T) On I-10 0.75 mile west of State Road 79, facing west (Case No. 82-394T) Said signs are located outside the limits of any incorporated cities. (T. 25.) I-10 is an interstate highway. (T. 25.) At the site of the signs, I-10 was opened and designated an interstate highway prior to the time the subject signs were constructed. (T. 25.) The signs do not have an outdoor advertising permit. (T. 25.) Petitioners have made application for permits for each sign. (T. 25.) The copy on each sign can be read from the main traveled way of I-10. (T. 25.) Holmes County has duly adopted a comprehensive land use plan and by ordinance zoned the areas where the subject signs are located as a commercial area. (T. 26, 13.) The zoning action by Holmes County was part of comprehensive zoning. The Department of Transportation (Department) disapproved the applications because it determined initially that the zoning of the area was unacceptable to the Department for permitting signs. Best Western Tivoli Inn belongs to Bonifay Tivoli, Limited, a partnership of Jack Hirschon and Joseph Beatty, who are the actual Petitioners in Cases No. 82-391T and 82-392T. (T. 26.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation approve the applications of the Petitioners for outdoor advertising permits for the subject signs. DONE and ORDERED this 12th day of October, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1982. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
Findings Of Fact In May and June of 1983 the Department received in its district office in Chipley, Florida, applications for four permits for outdoor advertising signs to be located adjacent to I-10, approximately one mile west of S.R. 285, in Walton County, Florida. Two of these applications requested permits to erect a two-faced, back-to-back structure on I-10, 4,262 feet west of S.R. 285, and two of these applications sought permits to erect a two-faced, back-to-back structure on I-10, 5,262 feet west of S.R. 285. These permit applications stated that the locations requested were in a commercial or industrial area within 800 feet of a business. The Department's outdoor advertising inspector approved these permit applications in June of 1983. When he visited the sites he found a small building, approximately eight to ten feet by approximately ten to twelve feet in dimension, situated at a point 300 feet from one of the sign sites and 700 feet from the other site. There was a pile of steel lying on the ground adjacent to this building. He was told by the Respondent's president that the Respondent's plan was to put an office on the site, and a building on which to work on signs and to store material. On the basis of his inspection of the site, coupled with these representations of the Respondent's president, the inspector approved the four applications for sign permits. Subsequently, in 1984 after the permits had been issued, the small building had been removed and was replaced by a shed and another small building. However, in 1983 at the time the applications for permits were submitted, the site where the business activity was planned did not have telephone service, nor did this location have any mailing address, and there were no employees of the Respondent on the site until 1984. The Respondent obtained this location for the purpose and with the intent of locating its sign business thereon, but when the permit applications were submitted the site had not yet become a commercial location. Much of the evidence presented by both sides at the hearing concerned activities conducted at the location between the two sign sites subsequent to the time when the permit applications were submitted. However, this is irrelevant. The salient facts are that the president of the Respondent knew that a business activity within 800 feet of the sign site was required in order to obtain lawful permits; he intended to establish his own sign business at a location between the two sign sites which would comply with the permitting requirements; but in June of 1983 when the permit applications were submitted, there was not then in existence any business activity within 800 feet of the proposed sign sites. Thus, the statement of the Respondent on its applications that the proposed sign sites were in an unzoned commercial area within 800 feet of a business was false, and the Respondent's president knew this when he submitted the applications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AJ511-12, AJ510-12, AJ509-12 and AJ508- 12, held by Reese Outdoor Displays, Inc., be revoked, and the signs which were erected pursuant to these permits be removed. THIS RECOMMENDED ORDER entered this 20th day of May, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 George Ralph Miller, Esquire P.O. Box 687 DeFuniak Springs, Florida 32433 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue At issue herein is whether or not the Petitioner is entitled to an order, requiring the removal of two signs involved herein which are owned by Respondent, pursuant to the Highway Beautification Act or Chapter 479, Florida Statutes, and if so, whether or not the Respondent is entitled to compensation from Petitioner for the value of such signs.
Findings Of Fact Based upon the testimony adduced at the hearing, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. At the commencement of the hearing, the parties stipulated that the Respondent, National Advertising Company, is the owner of certain outdoor advertising signs located in the City of Jacksonville, Florida. The parties also stipulated that Interstate 95 is part of the interstate highway system; that the two signs in question can be seen from Interstate 95 and the signs are located within 660 feet of the road's right-of-way. The parties also stipulated that only the poles which are used to erect the signs were in place prior to midnight on December 8, 1971. It appears that the poles were erected sometime during 1968, and that faces were added to the poles during the spring of 1972. The signs are located at .43 miles North of Pecan Park Road and .73 miles North of Pecan Park Road, respectively, adjacent to Interstate percent Highway 95. The Petitioner, Florida Department of Transportation, takes the position that since the faces were not on the signs prior to midnight on December 8, 1981, pursuant to Chapter 479, Florida Statutes, it is entitled to the entry of an order requiring removal of the signs by Respondent without any compensation for the signs whatsoever. Respondent, through counsel, moved that the hearing be dismissed on the ground that the Division of Administrative Hearings lacked jurisdiction to hear such matters, in that the signs may be removed only by proceeding under Florida's eminent domain law. 2/ It is undisputed that the signs involved are located within prohibited distances as provided in Chapter; 479.11, Florida Statutes. They are, therefore, a nonconforming structure as provided for within the terms of Chapter 479, Florida Statutes. In view of the stipulated facts, the structures involved herein do not constitute signs within the meaning of Chapter 479, Florida Statutes, since prior to midnight on December 8, 1971, all that existed of those structures were poles. See A. W. Lee, Jr. v. Reubin O'D. Askew, Case No.2-1798 (2nd DCA, 1979). Within the next year, however, Respondent erected advertising displays which had informative contents that were visible from the main traveled way. At that point, the structures herein became nonconforming outdoor advertising signs and were thereafter required to comply with pertinent State law in effect on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner, upon removal of the signs, remit to the Respondent compensation in the amount of the actual replacement value of the materials used in the signs. It is further recommended that compensation be made pursuant to the State's eminent domain procedures. 3/ RECOMMENDED this, 25th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1981.
Findings Of Fact On or about August 16, 1982, the Respondent, Bill Salter Outdoor Advertising, Inc., filed applications for two permits to erect an outdoor advertising sign in Escambia County, Florida on the west side of I-110, .95 mile north of SR 296. This sign would have one face for northbound traffic and one face for southbound traffic, and would be located outside the city limits of Pensacola. These applications were field inspected by the Department's outdoor advertising inspector, and they were approved by the Department's district supervisor in Chipley. On or about September 20, 1982, the Department issued permits for the requested location to the Respondent. On these applications the Respondent designated that the proposed sign location was in an unzoned commercial area within 800 feet of a business. These applications also certified that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. A sketch attached to the applications showed that the proposed sign location would be adjacent to a business that was designated as Coleman Roofing. When the field inspector visited the site she was aware that an antique business was supposed to be located in the area because it was designated on another outdoor advertising company's application as a business that qualified another sign location as unzoned commercial. This inspector found Hazel's Antiques because there was a sign which said "antiques" and a nearby shed which was visible from the interstate. In continuing to look for Coleman Roofing, she walked up the embankment between I-110 and the subject location until she could see what she determined to be some roofing material stored at one end of the property. She approved the Respondent's applications more on the proximity of the antique business than on the basis of Coleman Roofing. The owner of the property where the antique business was supposed to be is not in the antique business and has never conducted any business activities from this property. She lives there in a mobile home, and no one else has ever been in business on her property. Another outdoor advertising company obtained her permission to place a sign on her property saying "antiques", and there are some antiques in her mother's home, but these are not for sale. A representative from this sign company also took out a county occupational license in the name of this property owner, but she did not apply for this license. The shed seen by the Department's inspector is used for cookouts, and while there is some old furniture outside, it is junk waiting to be carried away. The owner of the property where Coleman Roofing was supposed to be is a self-employed roofer operating out of a trailer in which he lives. He has also worked from his home as a carpenter. He has no business telephone in his home, only a residential listing, and he only does bookkeeping from the dining room of his home. Outside there is a shed where he has kept his boat and an outbuilding with junk and old furniture in it. When he is working on roofing jobs he orders roofing material delivered to the job site. His property is in a residential area, and any leftover roofing material that may be there is awaiting a trip to the dump. As viewed from I-110, there is no indication that any commercial activity is being conducted at the subject location. The nature of the area within 660 feet of the interstate right of-way and within 800 feet of the Respondent's sign is residential. Sometime prior to November of 1984, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued its notice of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AH820-10 and AH821-10, held by the Respondent, Bill Salter Outdoor Advertising, Inc., authorizing a sign on the west side of I-110, .95 mile north of SR 295, in Escambia County, Florida, be revoked, and the subject sign removed. THIS RECOMMENDED ORDER entered this 12th day of September, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire P. O. Box 12308 Pensacola, Florida 32581 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On or about July 6, 1979, the Department issued permits numbered 11229- 10, 11230-10 and 11231-10 to the Respondent, Food 'N' Fun, Inc., authorizing the erection of a stacked back- to back sign on the south side of I-10, 1.7 miles east of SR 69, in Jackson County, Florida. Permits numbered 11267-10, 11268-10 and 11269-10 were issued on or around July 24, 1979, authorizing the erection of a stacked back-to-back sign on the south side of I 10, 1.55 miles east of SR 69, in Jackson County, Florida. Prior to the issuance of these permits the sites were field inspected and approved by Department personnel. Subsequently, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the signs. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject sign permits were being revoked because the signs were not erected in a zoned or unzoned commercial area. The Respondent's representative who submitted the permit applications designated on these applications that the sign locations were in an unzoned area within 800 feet of a business. This representative also certified on the applications that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Prior to conducting his field inspection, the Department's inspector had been informed by the applicant that a commercial activity (welding) was being conducted in a metal building within 800 feet of each of the sign locations. When he made his inspection he found a house on the south side of I- 10, a tin building in the rear, a field, and 2 or 3 other houses on the access road. When he inquired at the house, he was told that a business was located there, and he was shown either a tax certificate or tax number. At the time of the inspection no business activity was seen, nor has any been seen by Department personnel at this location at any subsequent time. Numerous unsuccessful attempts were made to again contact the owner of the business in an effort to establish whether or not any business actually existed at this location. The area where the subject signs are located is agricultural and rural in nature. Although the tin building in which the welding business is supposed to be located is visible from the interstate, the Respondent agrees that as viewed from the main-traveled way of I-10 there is nothing to indicate that any commercial activity is being conducted at this location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers 11269-10, 11267-10, 11268 10, 11231-10, 11229-10, and 11230-10 held by the Respondent, Food 'N' Fun, Inc., authorizing two stacked, back-to-back signs located on the south side of I-10, 1.55 miles and 1.7 miles east of SR 69 in Jackson County, Florida, be revoked, and the subject signs removed. THIS RECOMMENDED ORDER entered this 9th day of August, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985.
The Issue Is the Notice of Violation against Respondent valid; and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On June 7, 2001, DOT issued Notice of Violation 10B ST 2001 412, against a billboard sign located adjacent to Interstate 95 (I-95), approximately 1.3 miles north of the intersection of I-95 and U.S. Highway 1 at Exit 92. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95 and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The sign is a "permanent" one and has never been permitted by DOT. Exit 94 has not applied to DOT for a sign permit for the subject sign or paid any sign permit fees for it. No sign permit has been issued to any entity for the sign. The sign displays the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." The phrases on the sign are displayed on two stacked faces without the slashes. The letters are all capitalized; the size of the letters and the paint colors of yellow and black call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The words "WE DARE TO BARE" and "EXIT 94" are in very large black type and cover most of the two faces of the sign. The phrases "CAFÉ EROTICA," "ADULT TOYS," "GREAT FOOD," and the abbreviation "INC.," are the phrases smallest in size, located at the very top left, middle right, middle left and bottom right of the sign. All the small phrases are in black type and are relatively inconspicuous compared with the rest of the sign. There are no addresses, telephone numbers, arrows, or other identifying information on the sign. Respondent, Cafe Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., is a Florida corporation. It was incorporated in 1998. At all times material, Café Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, president, shareholder, and director of Respondent. Mr. Sullivan chose the name of the company because the words and phrases "get your attention," are memorable, and are words and phrases Mr. Sullivan has used a lot over the years to advertise for the Café Erotica. Exit 94 does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94 is the development of hunting and fishing camps on various pieces of property it owns or leases in Florida and Georgia. Café Erotica of Florida, Inc., d/b/a Café Erotica (Café Erotica), is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica. Exit 94 leases the land where the sign is located from James Grady Wainright, the owner of the property. The rental property consists of approximately ten acres. The lease was signed on April 20, 2001. The annual rent is $3000.00 per year. Mr. Wainright has received all the rent for 2001 from Mr. Sullivan. Mr. Sullivan was reimbursed by Respondent shortly after he paid the rent to Mr. Wainright. The stated purpose of the lease is the construction and maintenance of a hunting and fishing camp. The lease also authorizes Exit 94 to erect advertising signs on the property, states that any such signs will remain the property of Exit 94, forbids Mr. Wainright from obstructing the highway view of such signs, and grants Exit 94 permission to remove any vegetation that may obstruct the view of such signs. Mr. Wainright originally contacted Mr. Sullivan about leasing the property because he was interested in obtaining income from having a sign on his property. However, his interest resulted in the current hunting and fishing camp lease. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR 207), at the intersection of SR 207 and the exit 94 off-ramp from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94. The real property owned by Exit 94, which is the subject of DOT's Notice of Violation, is approximately nine miles from the Café Erotica restaurant. Mr. Sullivan makes the advertising decisions for Café Erotica. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Until about two weeks before the hearing of this matter, Café Erotica maintained a billboard at the café that displayed the words "PRIVATE DANCES," "GREAT FOOD," and "ADULT TOYS." At the time of hearing the billboards at Café Erotica now include words disparaging of the Department. Café Erotica does not own any interest in the subject sign and no citizen testified that the sign had caused him/her to patronize Café Erotica. However, given the similarity of the corporate name of Exit 94 to advertising used by Café Erotica and the location of Café Erotica at Exit 94, it is likely that Respondent's corporate advertising could also be interpreted as intended for Café Erotica and therefore be of incidental benefit to Café Erotica. On the other hand, the sign is intended to advertise Exit 94's hunting and fishing camps. In short, Mr. Sullivan and his corporations receive a dual benefit from the sign at issue here. Exit 94 lists addresses and locations other than the subject property as its business address(es) for various purposes. Mr. Sullivan's and Exit 94's main business address and office is on SR 206 off Exit 93 on I-95. Exit 94 maintains no office or telephone on the subject property. Jerry Sullivan has directed all activity on the Exit 94 property. His son is a licensed hunting and fishing guide. Jerry Sullivan anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp with guide services, if desired, provided by his son. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Currently, Exit 94's only revenues have been payments from other companies owned by Mr. Sullivan or his wife for use of the hunting and fishing camps maintained by Exit 94. The company has operated at a loss since its inception. The loss is made up by Mr. Sullivan as is needed. There is no public access to the property Exit 94 leases from Mr. Wainright. The property is accessible by going through property owned by a timber company. The closest exit off I-95 to get to the property is Exit 92, where U.S. Highway 1 intersects with I-95. As of the hearing of this matter, Exit 94 was not operating a fishing camp open to the public on the property leased from Mr. Wainright. However, such a public enterprise is not required in order for Exit 94 to be a legitimate business. The parties do not dispute the fact that there is a pond on the subject property. The evidence varied as to the size and quality of the pond with the lower estimate by the Department at 1/2 to 3/4 of an acre and the higher estimate of two acres provided by the landowner. Respondent estimated the size of the pond to be slightly less than two acres. The pond was not stocked with fish, but did have some fish present. Respondent has ordered special hybrid bream to stock the pond for "catch and release" by Respondent's customers and guests. The property was not stocked with game animals, although such stocks would not be necessary for hunting since wild game including turkey, boars, and ducks are already present. There was also one very ramshackle deer blind on the property. There were no public restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. A small trailer was located on the premises. The trailer was placed there and is owned by Mr. Wainright. It is unknown if the trailer is available for overnight lodging. However, the trailer is not necessary for the property to function as an overnight camp and no witness testified to having camped overnight on the subject property. Petitioner routinely distributes corn for seeding the woods for deer and other game. Given the location of the subject property, game attraction is certainly feasible. Bill Harry showed DOT personnel around the subject property. The Department's witness, Tom Simmons, was generally critical of the quality of the hunting and fishing facilities. While there were no people using the pond during his brief inspection, Mr. Simmons has no personal knowledge as to whether people actually hunted or fished on the property at any other time. The Department's representative acknowledged that he saw feed corn scattered on the property for use in luring wildlife to the premises. Exit 94 holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the county accepted Exit 94's designation of its business. Exit 94 has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94 produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Exit 94 is a legitimate business. It is in the business of providing and developing hunting and fishing camps for use as directed by Exit 94. No reason was demonstrated to pierce the corporate veil of Exit 94. The sign located on the property at issue here only and primarily contains the name of the corporation and is exempt from the general sign permitting requirements. Therefore, the Notice of Violation should be dismissed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
