The Issue The issue to be resolved in this proceeding concerns whether the Respondent's sign permits should be revoked on the basis that the permit location is not within an unzoned commercial or industrial area as required by the foregoing provisions of the statutes and rules.
Findings Of Fact On or about October 8, 1982, Branch's Outdoor Advertising filed applications for two sign permits to allow erection of an outdoor advertising sign in Jackson County, Florida. The sign is located on the north side of I-10 approximately 1.92 miles east of State Road 69. The sites applied for were field-inspected by the Department's outdoor advertising inspector, were approved and the Department issued the permits numbered AI33-10 and AI34-10 for the requested location. When the entity known as Branch's Outdoor Advertising submitted the application for the permits, it designated thereon that the proposed location was in a commercial or industrial unzoned area within 800 feet of a business and that the signs to be erected would meet the requirements of Chapter 479, Florida Statutes. The business which is located within 800 feet of the Respondent's sign is known as "Branch's Garage" Branch's Garage is located in a large tin shed which is used as a storage shed for farm equipment by Mr. Branch. Mr. Branch is a farmer as well as the operator of the welding and automotive repair business which is located in that same tin building. A portion of that building is visible from the main traveled way of Interstate 10. Branch's Garage is the only business located within 800 feet of the Respondent's-sign. Mr. Branch maintains two signs on or in the vicinity of his building advertising Branch's Garage and Welding Shop. The signs and the parked cars and vehicles associated with the business are, in part, visible from I-10. Mr. Jack Culpepper, the Petitioner's "Right-of-Way Administrator", was given the specific assignment of attempting to "reestablish effective control of outdoor advertising in the third district" in approximately the Summer of 1983. Mr. Culpepper had no direct knowledge of and had not inspected the vicinity of the sign in question prior to that time. In 1984, shortly before the Notice to Show Cause in question was issued, Mr. Culpepper did inspect the area and arrived at the belief that no commercial activity was occurring at the site known as Branch's Garage. Mr. Culpepper acknowledged that during his inspection, while driving down Interstate 10 in the vicinity, might not have noticed commercial activity which might have been going on at Branch's Garage. Mr. Culpepper acknowledged that, outdoor advertising regulatory personnel in the third district had adopted a more strict enforcement policy and interpretation. of the foregoing legal authority at issue in 1984 than had been the case in 1982 when the sign was permitted. In essence, that change in interpretation embodied a policy of not permitting, or seeking to revoke, permits for signs for unzoned commercial activity areas or locations when the commercial activity upon which the permits were predicated was not visible from the main traveled way of I-10, as opposed to the situation in 1982 whereby permits were issued if a commercial activity was present within 800 feet of a sign, without consideration of whether the commercial activity was visible from I-10. Mr. Branch conducted his welding and auto repair business known as Branch's Garage during the time in question in 1982 when the permits were issued at the site in question (the tin building). He also was conducting that activity during 1984 including the time when the Notice to Show Cause was issued. Mr. Branch is a farmer and uses the tin building in question for both businesses. Mr. Branch derives a part of his livelihood from the automobile repair and welding business. The on-premise signs located at Branch's Garage are visible from I-10. The applications for the outdoor advertising permit submitted by Branch's Outdoor Advertising were subjected to a field inspection as to the proposed site by the Department's outdoor advertising inspector on October 13, 1982. That inspector had been employed by the Department for some twelve years at the time. In connection with his duties involving enforcement of Chapter 479, Florida Statutes, and Rule 14.10, Florida Administrative Code, he had adopted a basic procedure for inspection of sign sites applied-for, which included actual inspection of the proposed site and, if the proposed site was in an unzoned area, ascertaining that there was an unzoned commercial activity present within 800 feet of the sign site. The inspector had made prior inspections of the site. As a result of those prior inspections he had already issued permits to another sign company authorizing the erection of a sign within the same vicinity based upon the unzoned commercial activity known as Branch's Welding and Garage. Based upon his field inspection in connection with the Branch's Outdoor Advertising applications in question, this inspector approved the applications, resulting in the issuance of the permits in question. The inspector had not been provided with rules or guidelines which would assist him in identifying and determining whether a commercial activity was present at the time of his inspection. He was required to make such determinations on a case-by-case basis, given the relevant statutory provisions, his experience, and instructions by his superiors, as to what would qualify as a commercial activity. Based upon the activities he observed being conducted at Branch's Welding and Garage, he concluded that there was sufficient legal basis for issuance of the permits. Upon issuance of the outdoor advertising sign permits to Branch's Outdoor Advertising, Mr. Branch erected a sign on his property which was improperly located and violated the spacing requirements between it and a sign known as the "Fuqua sign" which had previously been erected within the vicinity of his business. The incorrect location of Branch's sign created an enforcement problem for the Department's outdoor advertising personnel. In order to resolve that conflict with Mr. Branch, the owner of Branch's Outdoor Advertising, the inspector took an agent and representative from Tri-State Systems, Inc., Mr. Matt Fellows, to the site and identified the permits for Mr. Branch's sign as being legal permits. The inspector advised Matt Fellows that the sign was improperly located and suggested that Tri-State purchase Mr. Branch's permits and build a properly located sign at that vicinity location for which the permits had originally been issued. Based upon the information and suggestion from the Department's outdoor advertising inspector, the Respondent contacted Mr. Branch and made arrangements to purchase the sign permits in question. After consummating the purchase, it constructed a sign in question at the location authorized by the permits. The purchase of the permits and the subsequent erection of the sign was done in reliance upon the directions, information and suggestions from the Department's outdoor advertising inspector. The Notice of violation issued October 3, 1984, to Respondent's assignor, Branch~s Outdoor Advertising, was issued at the behest of Mr. Jack Culpepper, the Right-of-Way Administrator for the Department's Third District on or about September 27, 1984. Mr. Culpepper determined to issue the notice of violation based upon his formal inspection of the area immediately prior to that date, whereupon he concluded that the permits had been issued in error in 1982. Mr. Culpepper had no personal knowledge of whether any commercial activity was being conducted at the subject location in 1982, but relied on what had been reported to him by other third district personnel. The inspector who had personally inspected the property in 1982 had been satisfied that an unzoned commercial activity was occurring a proper distance from the sign site and his immediate supervisor had agreed with that interpretation which resulted in the permits being issued. Because of the change in interpretation of the foregoing statutory authority concerning sign permits in the Department's third district to a more strict interpretation, as delineated above, the Notice to Show Cause was issued against Respondent's assignor on October 3, 1984.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the petition by the Department of Transportation against Tri-State Systems, Inc. should be dismissed and that Tri-State Systems, Inc. should be permitted to retain the permits referenced above. DONE and ORDERED this 28th day of October, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986. APPENDIX Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Rejected as not comporting in its entirety with the competent substantial evidence of record. Rejected for the same reason except for the last sentence which is accepted in so far as it demonstrates the reason for issuance of the Notice of Violation. Accepted, although this proposed finding of fact is not material, relevant nor dispositive of the material issues involved in this case. Accepted, although, as to its last sentence this proposed finding of fact is not material or relevant to a disposition of the material issues presented. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, but not in and of itself dispositive of the material issues presented in that it is immaterial to disposition of those issues. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Copies furnished: Maxine P. Ferguson, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 A. J. Spalla, Esquire General Counsel Department of Transportation Haydon Burns Building ============================================================ =====
The Issue Whether the sign of Petitioner, White Advertising International, should be removed by the Respondent, Department of Transportation, for violation of Section 479.07(1) and Section 479.11(2), Florida Statutes, and the rules and regulations promulgated thereunder.
Findings Of Fact A notice of violation was sent by the Respondent, Department of Transportation, to the Petitioner, White Advertising International, on March 21, 1977, citing an outdoor advertising sign owned by the Petitioner located 1.97 miles west of U.S. #1, State Road 50 E/B with copy "Real Estate Service." The violation noted that the sign violated Section 479.071(1), Florida Statutes, and Rule 14ER77-09 (now Rule 14-10.04) and Section 479.11(2), Florida Statutes, and Rule 14ER77-10, 11 (now Rule 14-10.05 and 14-10.06). There is no dispute as to the location or copy or ownership of the subject sign. It is not in a zoned business, commercial or industrial area and is outside an urban area. The sign does not conform to the current setback requirements. The sign has a permit tag dated 1971, the only permit tag on the sign. No application was alleged to have been made for permit or annual fee paid or offered subsequent to 1971 until the application noted in 4, infra. A sign permit application and annual renewal was processed by White Advertising International dated January 21, 1977. The application was an annual renewal for the year of "19 72-1976." The printed application form stated that, "The signs listed above meet all requirements of Chapter 479, Florida Statutes. Respondent, by its outdoor advertising section administrator, refused to grant the permit on the grounds that the sign which had been erected prior to the enactment of the current setback regulations and probably in the year 1967 had had no application for permit or annual fee paid since 1971 and therefore having become an illegal sign, no permit could be issued. The Petitioner sign company introduced into evidence a letter dated February 28, 1977, from Respondent, Department of Transportation, through its property management administrator which indicated that the State had previously contended the subject sign was built on an unplatted street and had to be removed without compensation but that it was discovered such was not the case and that the State then offered to reimburse Petitioner for relocation costs. Petitioner did not remove the sign and the letter states that the current position of the Respondent State is: That the sign is on the right of way, contrary to Section 339.301, Florida Statutes; Has no current permit; contrary to Section 479.07(1), F.S. Violates Section 479.13, Florida Statutes, as having been constructed, erected, operated, used and maintained without the written permission of the owner or other person in lawful possession or control of the property on which the sign is located; and The sign therefore is an illegal sign and must be removed by Petitioner without compensation. Respondent contends: that the sign is illegal, having failed to be permitted since the year 1971; that it has one pole of the sign pole on the right of way contrary to Section 339.301; that it has no lease contract as required by Section 479.13; that Respondent has no authority to renew delinquent permits; that once a sign becomes illegal a new permit cannot reinstate its nonconforming status. Petitioner, White Advertising International, contends: that it should be granted a permit inasmuch as permits for some signs had been granted by the Respondent although the annual permit fee was not timely made.
Recommendation Remove subject sign if the same has not been removed within thirty (30) days from the date of the Final Order. DONE and ORDERED this 6th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire White Advertising International Post Office Box 626 Titusville, Florida
Findings Of Fact This proceeding was initiated when the Department notified the Respondent, Headrick Outdoor Advertising, that its permits numbered AD089-10 and AD090-10 were being revoked because the Respondent no longer had permission of the property owner to maintain a sign there, as required by Section 479.07(7), Florida Statutes. Permits numbered AD089-10 and AD090-10 authorized an outdoor advertising sign on U.S. 98, 100 feet west of Hickory Avenue in Bay county, Florida. The record owner of the property where the above permits authorized the Respondent to locate a sign is E. Clay Lewis III, Trustee, who took title by deed in 1977. By letter dated August 9, 1985, the property owner notified the Respondent that the subject property was being sold, and that the Respondent had 30 days to remove the sign from the property and cancel the outdoor advertising permits for this sign. By letter dated October 17, 1985, the property owner advised the Department that the Respondent no longer had a valid lease for the site where the subject permits authorized a sign, and that the signs had been removed. Documents marked Exhibits 1-3 reflect the foregoing, as does the testimony of the Department's outdoor advertising inspector. This evidence was received without objection from the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AD089-10 and Ad090-10 held by the Respondent, Headrick Outdoor Advertising, be revoked. THIS RECOMMENDED ORDER entered this 31st day of July, 1986 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 31st day of July, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 William G. Warner, Esquire P. O. Box 335 Panama City, Florida 32402 Bobbie Palmer, Esquire P. O. Box 12950 Pensacola, Florida 32576 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. 8palla, Esquire General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue Whether the structure described in the Department of Transportation's Notice of Violation No. 10B DB 2000 007 (Notice) is in violation of Section 479.07(1), Florida Statutes, and therefore subject to removal pursuant to Section 479.105, Florida Statutes, as alleged in the Notice.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is an outdoor advertising company that was formerly known as AK Media. On December 10, 1998, Petitioner (while still known as AK Media) entered into an agreement with NWT Partners, Ltd., the owner of the New World Tower (Building), a "thirty story four (4) sided building" located at 100 North Biscayne Boulevard in Miami, Florida, to lease certain portions of the Building. The lease agreement contained the following provisions, among others: Effective Date. This Lease shall become effective on the later of (x) the date that Tenant provides written notice to Landlord that Tenant has obtained all permits, license and governmental approvals necessary or required to enable Tenant to construct, maintain and operate the Wall Faces and Wall Structures, as hereinafter defined or (y) January 1, 1999 (the "Effective Date"). Tenant shall have ninety (90) days from the date of this Lease to obtain all such permits, licenses and approvals or the Landlord may cancel this Lease. Purpose. The purpose of this lease is for Tenant to construct, maintain and operate painted, printed, illuminated and/or electrical signs on the north and south wall faces of the Building (the "Wall Faces"), and all other uses not inconsistent therewith, including all necessary supporting structures, devices, illumination facilities and connections, service ladders and equipment, and other appurtenances (the "Wall Fixtures"). All construction to the Building, and advertising thereon, including construction drawing and artwork to be furnished by the Tenant shall be subject to Landlord's written approval, which approval shall not be unreasonably withheld. Tenant's Right to Enter and Use. For the duration of this Lease, Tenant shall have the non-exclusive right to enter onto the Property and into the Building and use the Wall Faces for the purposes described in this Lease and any other purposes allowed or required by this Lease and Tenant has the exclusive right to use the Wall Faces Property for advertising. In exercising Tenant's rights hereunder, Tenant may hang or attach the Wall Fixtures to the roof and exterior structure of the Building. Tenant shall maintain the Wall Fixtures at Tenant's cost and expense. Tenant shall pay all utility charges in connection with the operation and maintenance of the Wall Fixtures. Tenant shall be responsible for damage to the Building which is caused by Tenant's operation and maintenance and removal of the Wall Fixtures and shall repair any such damage and restore the Building to the condition it was in immediately prior to such damages at the expiration or termination of this Lease. Term. The term of this Lease is for five (5) years from the "Rent Commencement Date," as hereinafter defined, to the last day of the month during which the fifth anniversary of the Rent Commencement Date occurs (the "Term"). Rent. Tenant shall pay Landlord rent annually, in accordance with the schedule (the "Rent Schedule") set forth on Exhibit "B" hereto, inclusive of all taxes . . . . Contracts. Anything herein to the contrary notwithstanding, Tenant will use its best efforts to obtain contracts (the "Contracts") for advertising on the Building which exceed the amount of the Guaranteed Rent, as set forth on the Rent Schedule. . . . 9. Ownership/Removal. At all times, Tenant is and shall remain the owner of the Wall Fixtures and all signs and permits of any kind in relation thereto, and has the right to remove the Wall Fixtures at any time. . . . Exhibit "B" Rent Schedule Tenant shall pay annual rent to Landlord in an amount equal to the greater of (x) Fifty-five percent (55%) of the gross revenues attributable to advertisements displayed on the North Wall and the South Wall of the Building less any agency fee or commissions not greater than 16 2/3% to bona fide third parties (the "Net Revenues") associated with such advertisements (the "Percentage Rent") or (y) the minimum guaranteed annual rent (the "Guaranteed Rent") hereinafter set forth as follows: . . . The Landlord may terminate the Lease Agreement upon thirty (30) days prior written notice to Tenant if either Wall is vacant for more than one hundred twenty (120) consecutive days during the Term of the Lease and the Tenant has failed to obtain a contract, before the expiration of such notice period, for advertising on the North Wall or South Wall, as the case may be, pursuant to which the projected Percentage Rent under such contract would exceed the Guaranteed Rent. . . . Subsequently, Petitioner (while still operating under the name AK Media) entered into a "bulletin contract" with New York Outdoor, an advertising agency acting on behalf of Supreme International, in which Petitioner agreed, for a fee, to produce and maintain an "outdoor advertising display" for Supreme International on the north wall of the Building. Supreme International sells "Perry Ellis" and "Perry Ellis for Men" brand fashion apparel. In accordance with the "bulletin contract," Petitioner produced an "outdoor advertising display" for Supreme International on the north wall of the Building. The "outdoor advertising display" that Petitioner produced was a large mural more than 100 feet high and more than 60 feet wide. Such a product is referred to in the outdoor advertising industry as a "wallscape." The "wallscape" that Petitioner produced for Supreme International consisted of artwork (a picture of a young woman) and print (the words "Perry Ellis for Men") on a "canvass-type" material that was mounted on a "picture frame" support structure attached to the north wall of the Building. It was located within 660 feet of the nearest edge of the right-of-way of a roadway, US Highway 1 (also known, in that location, as North Biscayne Boulevard), which is a part of the federal-aid primary highway system. The artwork and print could be seen without visual aid by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building. At no time has Petitioner applied for, or obtained, a permit from the Department authorizing it to erect and maintain a "sign," as that term is used in Chapter 479, Florida Statutes, on the north wall of the Building. Petitioner, however, did seek and obtain a Class II Special Permit from the City of Miami. The permit was granted by the Miami City Commission, through the passage of Miami City Commission Resolution 99- 828, at its October 26, 1999, meeting. The printed agenda distributed in advance of the meeting stated the following concerning the permit for which Petitioner had applied: Consideration of approving Class II Special Permit No. 99-0142 for the property located at approximately 100 North Biscayne Boulevard for a sign of a graphic or artistic value. This will allow a mural containing a commercial message. The resolution passed by the Miami City Commission at the meeting read as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE RECOMMENDATION OF THE DIRECTOR OF THE PLANNING DEPARTMENT FOR ISSUANCE OF CLASS II SPECIAL PERMIT APPLICATION NO. 99-0142, SUBJECT TO THE CONDITION THAT THERE SHALL BE NO WRITING PERMITTED WITH THE MURAL AND OTHER CONDITIONS AS RECOMMENDED BY THE PLANNING DEPARTMENT FOR THE PROPERTY LOCATED AT APPROXIMATELY 100 NORTH BISCAYNE BOULEVARD, MIAMI, FLORIDA, PURSUANT TO SECTION 401 OF ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED. WHEREAS, the Director for the Department of Planning is recommending approval of Class II Special Permit Application No. 99-0142, with conditions, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida; and WHEREAS, Zoning Ordinance No. 11000, as amended, the Zoning Ordinance of the City of Miami, Florida, requires City Commission approval of the Class II Special Permit as hereinafter set forth; and WHEREAS, the City Commission after careful consideration of this matter, finds the application for a Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to approve the recommendation of the Director of the Department of Planning to uphold the issuance of the Class II Special Permit, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. Section 2. The recommendation of the Director of the Department of Planning to issue Class II Special Permit Application No. 99-0142, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida, is hereby approved, and the City Commission finds that the issuance of Class II Special Permit Application No. 99-0142, with conditions does meet the applicable requirements of Zoning Ordinance No. 11000, as amended. Section 3. The Resolution shall become effective immediately upon its adoption and signature of the Mayor. Inasmuch as the words "Perry Ellis for Men" were on the "wallscape" that Petitioner produced for Supreme International, this "wallscape" was not in compliance with the condition imposed by the Miami City Commission, in issuing the Class II Special Permit to Petitioner, that there "be no writing permitted with the mural." On February 22, 2000, Bernard Davis, who, at the time, was the Department's District 6 Roadside Outdoor Advertising Administrator, issued a Notice of Violation (Notice No. 10B DB 2000 007) alleging that the "wallscape" on the north wall of the Building (described above) was "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes" and directing that the sign be removed within 30 days. Petitioner thereafter requested an administrative hearing on the matter. Prior to the hearing, the artwork and print on the "wallscape" on the north wall of the Building were changed. As of the date of the final hearing in this case, the "wallscape" on the north wall of the Building contained a picture of a man and part of a woman and the words "Perry Ellis," underneath which was written "www.perryellis.com," Supreme International's website address. The Monday and Tuesday before the final hearing (February 5 and 6, 2001), Mr. Davis' successor, C. Jean Cann, went inside the Building to determine whether Supreme International had an "on-premises presence." On Monday, February 5, 2001, Ms. Cann entered the Building at approximately 1:15 p.m. After obtaining information from the Building's Electronic Directory that "Perry Ellis" occupied room 2128, she took the elevator to the 21st floor. After getting off the elevator, she walked down a hallway, where she saw a paper sign on a door which read "Perry Ellis/Supreme International, Incorporated, 2128." When she knocked on the door, no one answered. She waited 10 to 15 seconds and then knocked again, with the same result. She then, unsuccessfully, attempted to open the door. At around 1:45 p.m., she left the Building. Ms. Cann returned to the Building the following day at approximately 11:40 a.m., at which time she spoke to a security guard, who informed her that "Perry Ellis" "was in 2126." She then again went up to the 21st floor, and, on the same door that she had seen the "Perry Ellis/Supreme International, Incorporated, 2128" sign the day before, she saw a paper sign that read "Perry Ellis/Supreme International, Incorporated, 2126." Her knocks on the door, like those of the previous day, went unanswered, and she was again unable to open the door. At around 12:00 noon, she exited the Building. At no time during either of her two visits was Ms. Cann able to ascertain what, if any, business activity Supreme International was engaging in inside the Building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that the "wallscape" on the north side of the Building is a "sign" that was erected and is being maintained without the Department-issued permit required by Section 479.07(1), Florida Statutes, and that it therefore is a public and private nuisance that must be removed pursuant to Section 479.105(1), Florida Statutes. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STUART M. LERNER 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 23rd day of March, 2001.
Findings Of Fact U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes. University Boulevard (SR 109) is not a federal-aid primary highway. Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing. The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard. Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by 48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit. This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign. The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
The Issue Whether the Outdoor Advertising Sign owned by the Petitioner qualifies for permitting as a non-conforming sign.
Findings Of Fact On August 5, 1996, the Department issued a notice of Violation of an illegally erected sign to Clarence E. Adams. The sign in question was located 9.240 miles south of the line between Georgia and Florida on real property that is now and always has been zoned agricultural. The property upon which the sign is located was purchased by Clarence Adams and his brother, Dennis C. Adams, in 1976. The sign was on the property when they purchased the property; and, although they did not own the sign, they have derived continually revenue from the rental of the property upon which the sign is located since 1976. The sign has been maintained in it present form since 1976 by its owner(s). The subject sign had never been cited previously by the Department for violation of the outdoor advertising statutes. The subject sign is located at mile post 9.240. The sign is not in the Department’s right of way. The sign is not a danger to the traveling public. The sign is located adjacent to and can be seen from the main traveled way of Interstate 75 which is a federal highway that is open to the public. The current owner, Ray Sheffield, testified and did not claim to have a valid permit. Clarence Adams admitted that he had never applied for such a permit. The Department proved by testimony and evidence that the subject sign does not have a valid outdoor advertising permit, and there is no record by the Department that it ever had a valid permit. Clarence Adams proved that the sign was at its current location in 1976 when Adams and his brother purchased the property. Adams proved that a sign was in that location as early as 1975. The Department and the Federal Highway Administration entered into an agreement in 1972 that prohibited the erection of outdoor advertising signs along federal highways in areas zoned agricultural. The Petitioner did not prove that the sign was erected prior to the agreement between the Department and the Federal Highway Administration in 1972.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding: That the outdoor advertising sign, which is the subject of the notice of violation and which is located at mile post 9.240, does not have a permit, is in violation of the law, and is not qualified to be grand-fathered in and permitted; and That the owners of the real property upon which the subject sign is located and putative owner of the sign, Ray Sheffield, be directed to remove the sign within 30 days; and That the owners of the real property be advised that, if the subject sign is not removed, the Department will seek an order of a court of competent jurisdiction directing the removal of the sign and assessing costs for obtaining the court’s order and the costs of removing the sign. DONE and ENTERED this 22nd day of May, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1997 COPIES FURNISHED: Kenneth Scaff, Jr., Esquire Post Office Drawer O Jasper, Florida 32052 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 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 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 1986, 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 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, Empire Outdoor Advertising, Inc., is the owner of a sign located on the westbound or north side of Northwest 54th Street approximately 20 feet east of Northwest 12th Avenue, in Dade County, Florida. Northwest 54th Street is also designated as State Road 25A. The Respondent's sign is a structure or billboard designed to advertise or inform, and its copy is visible from the main traveled way of the adjacent roadway of State Road 25A or Northwest 54th Street. At the site where the Respondent's sign is located, State Road 25A or Northwest 54th Street is a part of the federal- aid primary highway system, and this roadway is open to the public for vehicular traffic. The Respondent's sign is located within 660 feet from the nearest edge of the pavement of State Road 25A. The Respondent's sign is situated within 500 feet from another outdoor advertising structure on the same side of the highway. These two signs face in the same direction and are both visible to westbound traffic on the north side of State Road 25A or Northwest 54th Street. The Respondent's sign has affixed to it copy which advertises Kraft Barbecue Sauce. This structure does not fall within any of the exceptions to the statutory licensing requirements set forth in Section 479.16, Florida Statutes, and it must have a state sign permit. The Respondent has not applied for an outdoor advertising permit from the Department, and no such permit has been issued by the Department for the subject sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the Respondent's sign which is the subject of this proceeding to be in violation of the applicable statutes and rules, and ordering its removal. THIS RECOMMENDED ORDER entered this 25th day of January, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 L. Martin Reeder, Jr., Esquire Post Office Box 2637 Palm Beach, Florida 33480
The Issue Whether respondent's initial proposal to deny petitioner's application for a permit to construct an outdoor advertising sign had a reasonable basis in law and fact at the time it occurred or was otherwise substantially justified; or, if not, whether special circumstances would make an award of costs and fees unjust?
Findings Of Fact In the fall of 1988, petitioner proposed to erect a sign facing east, within 15 feet of an existing outdoor advertising sign, on the north side of State Road 200, approximately .6 miles west of the intersection of State Road 200 and I-75. He planned to place a single face at such an angle to the existing, single-faced sign that a V configuration would result. Another outdoor advertising company held a permit for the existing sign, which faced west. It stood on property belonging to a land owner who did not own the property to the east on which Ray proposed to raise its sign. On November 10, 1988, the Department of Transportation issued a notice of intent to deny petitioner's application for a permit to construct the outdoor advertising sign. Petitioner reasonably incurred attorneys' fees of $787.50 and costs of $28.00 before Department of Transportation decided, well after the evidentiary hearing held April 5, 1989, to issue the permit, after all. As far as the record reveals, the Department has faced only one other situation in which an applicant for a permit to construct a sign, within 15 feet of an existing sign, proposed to build on property not owned by the land owner who had leased to the company which had built the existing sign, viz., Ad-Con Outdoor Advertising v. Department of Transportation, No. 89- 0087T. In that case, too, the Department issued a permit for the second sign. In an internal memorandum dated February 17, 1989, respondent's Rivers Buford wrote Dallas Gray, while the Ad-Con application was pending, the following: Inasmuch as the proposed sign would be within fifteen feet of another sign it would, by virtue of the provisions of Rule Chapter 14-10.1006(1)(b)3, be considered a part of a V-type sign and thus its two faces would be exempt from the minimum spacing requirements of Section 479.07, F.S. Respondent's Exhibit No. 2. The memorandum antedated the final hearing in Case No. 88-6107 by more than six weeks. Presumably, the intended rule reference was to Rule 14-10.006(1)(b)3., Florida Administrative Code. At the hearing in the present case, the Department of Transportation produced two witnesses to explain why the Department initially turned down petitioner's application. In their view, the Department of Transportation should never have granted petitioner's application, in order to protect rights vested in the other company, particularly a purported, preemptive right the other company had, by virtue of the location of its existing sign, to build another sign where Ray proposed to build, even though the other company did not own and had not leased the site Ray applied to build on. They asserted not only that the Department was substantially justified in turning down petitioner's application when it was originally considered, but also that any other similar application should be turned down. In their opinion, the Department erred in issuing permits in both cases in which the question has arisen. They attributed the eventual issuance of permits to petitioner and in the Ad-Con case to misinformed and misguided departmental employees. As authority for this view, Mr. Kissinger, respondent's Motorist Information Services Coordinator, cited Sections 479.07(9)(a) and 479.01(14), Florida Statutes (1989) and Rule 14-10.006(b)(2) and (3), Florida Administrative Code.
