The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Larry Brummitt owned a sign on U.S. 90 in Greenville, Florida advertising Country Corner for which he held a permit for seven or eight years. U.S. 90 is a federal-aid primary highway. Mr. Brummitt desired to rebuild and relocate this sign a short distance from its authorized location and, to insure he did things properly, sought advice both from the advertising sign inspectors at Lake City and from the State Administrator of the Outdoor Advertising Section in Tallahassee. At both places he was told that be could not get an application for a new sign approved until his existing sign was removed because the new sign would violate the spacing requirements of Rule 14D-10.06(b)3, Florida Administrative Code while the existing sign was up; that an application would not be accepted while the former sign was standing; that the policy of the Department, when conflicting interests desired to erect signs where only one could be erected, was the person whose application was first received would be approved. The Department's long-standing policy, which was memorialized in a memorandum to all District Outdoor Advertising Sign Administrators in 1978, is that where conflicting applications for signs are received, the first submitted will be approved. Relying upon this information, Petitioner prepared his application, removed the old sign, and at 10:00 a.m. on 2 June 1980 presented his application to Respondent for a permit to erect his replacement sign. On 24 March 1980 American Sign and Indicator Company first approached Respondent's sign inspector to inquire about erecting a time and temperature sign for the Bank of Greenville. They were told that a permit for such a sign could not be issued because it would be within 500 feet of the Country Corner sign and would violate the spacing requirements unless Brummit's sign was first moved. At 1400 hours on 2 June 1980 American Sign and Indicator Company presented an application at the Lake City Headquarters of Respondent for a permit to erect a time and temperature sign at approximately the same location earlier requested by Brummitt. In his letter of 11 June 1980 the District Administrator, Outdoor Advertising, in Lake City advised Mr. Brummitt that his application was being disapproved and of his right to petition for an administrative hearing within 14 days or the denial would become final. As reasons for denying the application the letter stated: The application indicates the proposed location would be within 500 feet if a proposed time and temperature display to be erected by the Bank of Greenville in the County of Madison. The Bank of Greenville has been dealing in good faith with the Department to erect this display since January 5th, 1980. After obtaining the necessary criteria and additional expenses accrued, the Department feels the bank should be allowed to erect the display, because we feel they were the first applicant. When questioned by the Hearing Officer how Respondent "reasoned" the bank's application was received prior to Petitioner's application, the District Sign Inspector acknowledged that he had discussed these applications with the Chief Right-of-Way Agent in District 2, Mr. Bielling, under whose supervision the Outdoor Advertising Section comes, that Mr. Bielling is his boss and tells him what to do (Tr. p. 24-25) and that as far as the sign inspector is concerned, Mr. Bielling has the prerogative to change DOT policy.
The Issue The issue for determination is whether Petitioner’s applications for a State sign permit should be granted.
Findings Of Fact No dispute exists that DOT is the State agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway system, interstate, or federal-aid primary system in accordance with Chapter 479, Florida Statutes. Mr. Monsalve wishes to place two advertising signs within 660 feet of Interstate 95 and visible to Interstate 95. The advertising signs require a permit. On or about June 16, 2008, Mr. Monsalve filed two applications, completing DOT’s forms titled “Application for Outdoor Advertising Permit” (Application), with DOT for outdoor advertising signs. The two applications indicated the same location for the outdoor advertising but with different height, width, and total square feet: one was a height of 4 feet, width of 60 feet, and 240 total square feet, and the other was a height of 12 feet, width of 12 feet, and 144 total square feet. The two Applications were assigned Application numbers 57196 and 57197, respectively. The location for the proposed outdoor advertising signs is 299 Southwest 17 Road in Miami, Florida, near Interstate 95, North of Southwest 3rd Avenue. Mr. Monsalve owns the property on which the advertising signs are to be located. The Application contained a section titled “Local Government Permission.” The section provided that it was to be completed by the appropriate local government official or that a “written statement indicating that the sign complies with all local government requirements” may be submitted or, “for a proposed sign location, a copy of the building permit issued by the local government may be submitted.” The section was neither completed by the local government official nor was a written statement submitted indicating that the signs comply with all local government requirements. However, Mr. Monsalve submitted a 1999 building permit from the local government. The local government was the City of Miami. The 1999 building permit was issued by the City of Miami on July 13, 1999, to Hampton Inn for a commercial painted wall sign, located at 299 Southwest 17 Road. The building permit was issued Permit Number SG 99-5011166. The Folio Number, i.e., Property ID Number, on the 1999 building permit is No. 01-4138-002-0020. Mr. Monsalve owns the property for which the 1999 building permit was issued for the advertising sign. The property is the same property identified on his Application, assigned Application number 57197. DOT requires that, in order for a building permit to constitute “local government permission,” the permit must have been issued within six months of the date of an application for an outdoor advertising sign. The 1999 building permit submitted by Mr. Monsalve was beyond the six-month time period of the date of Application number 57197. Furthermore, by letter dated June 25, 2008, the City of Miami notified DOT that the 1999 building permit no longer had legal status due to the City of Miami changing its laws regarding billboards and that Mr. Monsalve did not have local government permission.3 The evidence demonstrates that the 1999 building permit did not constitute local government permission. The evidence failed to demonstrate that Mr. Monsalve had obtained local government permission. In March 2004, DOT issued a permit to the Hampton Inn for an outdoor advertising sign on Mr. Monsalve’s property. The permit was issued Tag Number CA179, and the sign was built on August 19, 2004. The permit information provides, among other information, that the location of the outdoor advertising sign was located 0.040 miles North of Southwest 3rd Avenue and that the sign was 144 square feet. Hampton Inn and Mr. Monsalve entered into an agreement/contract for Hampton Inn to lease outdoor advertising space from Mr. Monsalve at 299 Southwest 17 Road, Miami, Florida. A Second Lease Agreement between Mr. Monsalve and the Hampton Inn indicates in provision numbered one that the lease agreement was extended until March 31, 2007. The evidence demonstrates that, subsequent to March 31, 2007, the lease of the space by the Hampton Inn continued on a month-to-month basis and that the last time that Mr. Monsalve received payment for the monthly lease was in March 2008. The location for the outdoor advertising sign permit, Tag Number CA179 is the same location of Mr. Monsalve’s proposed outdoor advertising sign in Application number 57197. In June 2008, the outdoor advertising sign permit, Tag Number CA179, was transferred from Hampton Inn to Outlook Media using DOT’s form titled “Outdoor Advertising Permit Transfer Request.” The permit is considered by DOT to be currently active. The location for Mr. Monsalve’s Application number 57197 is currently permitted to Outlook Media due to the transfer of outdoor advertising sign permit, Tag Number CA179 to Outlook Media. The distance between the proposed sign in Mr. Monsalve’s Application number 57196 and the space in the outdoor advertising sign permit, Tag Number CA179, is less than 1500 feet. The evidence demonstrates that the sign in Mr. Monsalve’s Application number 57197 conflicts with the outdoor advertising sign permit, Tag Number CA179, in that the two are the same location. Mr. Monsalve believed that he, as the property owner, owned the outdoor advertising sign permit, Tag Number CA179, as well. He did not agree for the permit to be transferred. Mr. Monsalve was not aware that the outdoor advertising sign permit, Tag Number CA179, had been transferred by Hampton Inn to Outlook Media. The evidence was insufficient to demonstrate that he owned or did not own the permit or that his permission was required for the permit to be transferred. Mr. Monsalve did not agree to lease the space for the outdoor advertising sign permit, Tag Number CA179, to Outlook Media. Mr. Monsalve notified DOT that a problem existed between him and the City of Miami regarding obtaining local government permission and requested DOT to put his Application on “Hold” in order to provide him with time to resolve the problem. He also notified DOT regarding his dispute with the transfer of the outdoor advertising sign permit, Tag Number CA179, to Outlook Media. DOT is unable to place applications on hold but is required to act on applications within 30 days. Also, Mr. Monsalve notified the City of Miami, among other things, of his dispute with the transfer of the outdoor advertising sign permit, Tag Number CA179, to Outlook Media, and that he did not give Outlook Media permission to erect a sign on his property for which the outdoor advertising sign permit, Tag Number CA179, was issued. By Notice of Denial issued on July 3, 2008, DOT notified Mr. Monsalve that his Applications were denied for the following reason: Other: No statement from the appropriate local governmental official indicating that the agency or unit of local government will issue a permit to the applicant upon approval of the state permit application by the Department (Section 479.07(3)(b), Florida Statutes). On July 15, 2008, DOT issued an amended Notice of Denial, notifying Mr. Monsalve that his Applications were denied for the following reasons: Sign does not meet spacing requirements (1500’ for interstates . . .) s.479.07(9)(a)1.&2., FS In conflict with permitted sign(s), tag #(s) CA 179 held by Outlook Media of South Florida, LLC . . . Sign/location does not comply with all local government requirements . . . s.479.07(3)(b), FS Other: The building permit submitted with the application is not in compliance with local governmental requirements. No evidence was presented to demonstrate that a determination had been made as to what Mr. Monsalve’s legal rights are as the owner of the property regarding his lease agreement/contract with the Hampton Inn and the outdoor advertising sign permit, Tag Number CA179; and regarding the transfer of the outdoor advertising sign permit, Tag Number CA179.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Andres Monsalve’s application for an outdoor advertising sign permit. DONE AND ENTERED this 17th day of December 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 17th day of December, 2008.
The Issue The issue in these causes is whether denial of Petitioners' outdoor advertising sign site permit applications by Respondent were correctly determined under Subsection 479.111(2), Florida Statutes (2003), on the basis that the sign sites were unzoned commercial/industrial areas; and on the basis that within attending factual circumstances, the sign site did not qualify as unzoned commercial/industrial areas as defined in Subsection 479.01(23), Florida Statutes (2003).
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Sections 120.569 and 120.57, Florida Statutes (2003); and the entire record of this proceeding, the following relevant and material findings of fact are determined: Petitioner, Tropical Landholdings, a Florida Corporation, was created in 1998 and purchased approximately 700 to 800 acres of land comprised of residential multi-family and commercial properties along Interstate 75 (I-75) in Punta Gorda, Florida. On September 8, 2003, Petitioner, Crown Advertising, Inc., of Belleview, Florida, submitted three outdoor advertising sign site permit applications to the Department for review. On September 23, 2003, the Department denied the three outdoor advertising sign site permit applications for the following reasons: (1) the sign sites were not permitted under the local land use designation of site (§ 479.111(2), Fla. Stat. (2003)); and (2) the sign sites did not qualify as unzoned commercial/industrial area. § 479.01, Fla. Stat. (2003). The sign site permit application forms used by Petitioners in these causes were composed and authorized by the Department. The form required the applicant to obtain and provide information regarding the proposed sign site, what is proposed to be constructed on the site, and where the proposed construction is to occur. The sign site permit applications also required the applicant to secure information from the appropriate local zoning official of the future land use designation and the current zoning of the proposed sites enacted by the local government's Comprehensive Plan and land use development regulations. This form required information from the local government as to whether the applicant is or is not in compliance with all adopted local ordinances. Permission to erect an outdoor sign structure on the identified sign site is subject to approval by the City. Petitioners complied with the requested information. The local government, the City of North Port, approved the three sign site permit applications in question and granted Petitioners permission to erect three outdoor billboard signs. This local grant of approval was then subjected to concurring approval by the Department. After receiving the sign site permits that were approved by the City, the Department engaged the services of a consultant to conduct on-site review and identification of: (1) the local government's designation for each proposed sign site; (2) the permitted uses of each proposed sign site (local drainage facilities, pipeline corridors, underground communication cables, electric transmission lines, and outdoor advertising signs); and (3) a review of adjacent and surrounding parcels. The consultant reported to the Department the factual circumstances attendant the three locally approved sign sites. It should be noted that the consultant did not render an opinion regarding the Department's approval or denial of the sign site permit applications. The sign sites in question were zoned under the local "land use designation" of the City of North Port's Ordinance 02-46, Section 53.146 (Ordinance 02-46), as a "utility industrial corridor." The zoned land was composed of strips of land measuring 25 to 70 feet in width on the west side and 160 to 170 feet in width on the east side. The "permitted governmental uses" of a parcel zoned as a "utility industrial corridor," included such uses as underground communication cables, electric transmission lines, and outdoor advertising signs. Ordinance 02-46, under the title "Prohibited Uses and Structures," specifically prohibits "all commercial and industrial uses." Based upon a review of all information provided by Petitioners, the local government, and its consultant, the Department first determined the three sign sites on which the subject signs were to be erected and located, prohibited commercial or industrial uses. The Department then determined, based upon an analysis of the materials provided by its consultant and the City of North Port, the three sign sites in question had not been zoned for commercial or industrial uses as a part of the local government's comprehensive zoning plan. Based upon (1) the prohibition of commercial or industrial uses and (2) no commercial or industrial zoning of the sign sites, the Department concluded these three sign sites were zoned "primarily to permit outdoor advertising," a prohibited function. The denials were required. Under the local land use designation of Ordinance 02-46, the City of North Port's permitted uses included local drainage facilities and a pipeline corridor. Under governmental uses designation of Ordinance 02-46, the City of North Port's permitted uses included underground communication cables, electric transmission lines, and outdoor advertising. However, Ordinance 02-46 specifically prohibits all commercial and industrial uses under the governmental uses designation. When questioned by Petitioners, Ms. Holschuh testified "that the Department's intent was to allow [sign] permits whenever possible and never prohibit the installation of billboards." From this specific statement of testimony, Petitioners argued that "implementing the intent the Department must look beyond the labels of the zoning and look at the actual primary uses allowed under those designations." (Emphasis added.) Ms. Holschuh disagreed with Petitioners' characterization of the Department's procedures and convincingly maintained that the Department based its denials on "sign site zoning" and factors considered for determining an "unzoned commercial/industrial area" as defined by statute. Continuing with its argument, Petitioners conclude "[T]he department . . . appears to be in conflict with Judge Barbara Staros' decision of February 16, 2004, in a rule challenge proceeding, where she analyzed the Sign Permit procedure under Section 479.07, Florida Statutes." In her Final Order, Administrative Law Judge Barbara Staros made a Finding of Fact in paragraph 30, stating: Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan. Page 13. The procedures followed by the Department in this proceeding complied with Judge Staros Finding of Fact in paragraph 31, where she wrote: The Department uses the application and the information contained therein to determine whether a proposed sign location falls within the definition of a "commercial or industrial zone." If it does, [fall within] then the Department determines whether those designations were adopted as part of the local government's comprehensive planning efforts or were "primarily" adopted to permit outdoor advertising signs on that location. Page 30. Based upon it's receipt, review, and analysis of the specific facts provided by all parties of interest, the Department determined the sites where the signs were to be erected prohibited commercial or industrial use. The Department factually determined that no local zoning identified the sites as commercial or industrial. The Department concluded correctly and in accord with Florida Administrative Code Rule 14-10.0052 that these three sign sites were zoned by the City of North Port, the local governmental entity, "primarily to permit outdoor advertising" contrary to sign site permit procedures under Section 479.07, Florida Statutes (2003). Based upon the evidence of record and considering the size of the sign site, the local government's zoning of the site, designated uses of the site, and prohibited uses on the site, denial of the sign applications was correctly determined pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052. Based on the testimonies of Ms. Holschuh and James Duff, who testified regarding his ownership, property taxes paid, and the investors' inability to use the property in question to their economic advantage, Petitioners failed to carry the burden of producing a preponderance of credible evidence to establish that the Department incorrectly and/or wrongfully denied Petitioners' applications for three sign site permits pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052.
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.
The Issue Whether DOT should revoke permits Nos. 721-02 and 722-02 because the nonconforming signs originally permitted have been replaced with a larger structure? Whether DOT is estopped to revoke the permits on these grounds where authorized personnel verbally assured the permittee, and others not in the outdoor advertising business who acted in reliance, that the replacement was not unlawful, and later stated in writing that the permits or one of them was valid?
Findings Of Fact Since 1968 (T.83) "prior to the 1972 agreement with the Feds to control outdoor advertising," (T.23) sign boards in Franklin County facing east and west, on the north side of U.S. Highway 98, a federal-aid primary highway, about 26.85 miles east of the city limits of Apalachicola, have apprised motorists of the proximity of Bill Miller Realty's offices. On October 1, 1987, members of the Saunders family acquired Lanark Plaza, a shopping center near the signpost but invisible from the highway. After learning they would not be allowed to erert a sign within 1,000 feet of Mr. Miller's signs, they proposed a two-faced "directory sign for the shopping center, and" (T.78) Mr. Miller's office, to replace the existing structure. Subject to DOT approval, Mr. Miller agreed to continue paying permit fees if they would erect and maintain the new "directory sign." Before anything was done to effectuate the agreement, Mr. Miller spoke to the late Carlton Millender, "a very blunt man . . . [who] did what was right," (T.99) and who had worked as DOT's outdoor advertising inspector since 1981 for the area around the Carrabelle maintenance yard, including the site at issue. He was authorized to represent DOT on questions concerning the placement of signs and the validity of sign permits, and had turned down more than one sign proposal Saunders family members had made. Mr. Millender told Mr. Miller and, later, Christine Saunders that they could replace the sign that then existed with another, taller sign, but that they could not put up a sign any wider than the eight foot width of the sign faces then standing. "[I]f you are going to increase some height to it, he said, I don't see any objection to it, but I would suggest you write DOT in Chipley and get their blessing or whatever." (T.79-80). Mr. Miller did write DOT's offices in Chipley, to the attention of Milford C. Truette, and told him what [they] wanted to do, and that [he] had talked to the supervisor here, and it was almost getting time for renewing the permit anyhow. . . . [H]e requested that if there [was] any increase in the fee for raising the heigh[t] of the sign, please let [him] know. . . . (T. 80) He received no reply, which he told Mr. Millender. Meanwhile Ms. Saunders "had a man in Panama City draw the design" (T.96) and, toward the end of October or the beginning of November, showed Mr. Millender the completed design, Respondents' exhibit No.3., depicting a sign eight feet wide and about nine feet tall, five feet taller than the sign it was to replace. Mr. Saunders "presented a copy of the plans to Mr. Millender . . . [and they] talked at length about the enlargement of the sign, that it would not be made any wider, but it would be made taller. . . ." (T.101) "When he said that all [they] needed to do was send a letter stating that it was going to be enlarged, requesting a fee change, [she] took that to mean everything was in order," (T.106) and contracted to have the sign built. Eleven hundred dollars or more in materials went into the sign, which ended up being eight feet wide and approximately eleven feet tall. The Saunders worked on it themselves and they hired a laborer at ten dollars an hour. In mid-February of 1988, they took the old sign down and put the new sign up in its place, "within the jurisdiction of the DOT because it's . . . within a certain distance of highway 98." (T. 36) . The sign stands on land owned by Arthur T. Allen, Jr. "on the corner of the . . . second tee" (T. 87) of the Lanark Village Golf Club's golf course. The privately owned club charges fees for use of the course, which lies within an area designated R-1 on detail map B of the Franklin County zoning map, DOT's Exhibit No.3., adopted by reference on June 22, 1981. Nobody signed or sealed the detail map, which was not available for review until the night the County Commission adopted it. Although James T. Floyd, formerly the county planner, testified the detail map was in a sense unreliable and inaccurate, "it is the only document available" (T.72) to show existing zoning. According to the map, not only the shopping center, which "has been commercial since the 1940's, really" (T.72) but the pumping station, as well, lie within the R-1 residential zone. The parties stipulated that the future land use map filed and adopted with Franklin County's comprehensive plan in 1981 designated the area "low density residential." (T.76) On March 2, 1988, DOT's Mr. Truette visited the sign. At some point, Mr. Truette had spoken to a Mr. Kubicki, who was concerned about the legality of the new structure. After the site visit, on March 10, 1988, with knowledge of the new sign's size, and that the new structure was taller than the old, having been informed of the zoning in the area, and fully aware of the controversy surrrounding the sign, Mr. Truette wrote Mr. Floyd, then still in Franklin County's employ: "This is to inform you that state sign permit number 721-01 is a valid permit." Respondent's Exhibit No. 1. At hearing, Mr. Truette said he had meant only that the permit had not yet been revoked. It was he who signed the notice of violation on June 3, 1988.
Recommendation In accordance with the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That DOT dismiss the notice of violation, and take no action against permits Nos. 721-02 and 722-02. DONE and ENTERED this 20th day of February, 1989 in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II 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 21st day of February, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, and 3 have been adopted, in substance, insofar as material, except that Truette's meeting with Floyd was not the first contact he had with anybody about the sign. Whether or not the record established the month of Mr. Millender's death, the parties agree that he died in January. Respondent's proposed findings of fact Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25 and 27 have been adopted, in substance, insofar as material. With respect to respondents' proposed finding of fact No. 1, it was not clear just which members of the Saunders family owned what. With respect to respondents' proposed finding of fact No. 12, while no money is to be paid Mr. Miller, he is to receive consideration in the form of upkeep. With respect to respondents' proposed finding of fact No. 21, they spent approximately $1100 plus whatever they paid the laborer. Respondents' proposed finding of fact No. 26 has been rejected as unsupported by the weight of the evidence. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 John F. Gilroy, Esquire Bruce Culpepper, Esquire Haben and Culpepper, P.A. Post Office Box 10096 Tallahassee, Florida 32302 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue At issue in this proceeding is whether the Department of Transportation's Notice of Denied Application for an outdoor advertising permit at State Road 61 (U.S. 319), 168 feet west of Thomasville Road, Leon County, issued to Lamar of Tallahassee on May 30, 2008, should be upheld pursuant to Section 479.07, Florida Statutes,1/ or whether the sign should be permitted as a nonconforming sign as defined by Section 479.01(14), Florida Statutes.
Findings Of Fact The Department is a state agency empowered to regulate outdoor advertising signs along the interstate and federal-aid primary highway systems of Florida pursuant to Chapter 479, Florida Statutes. Lamar is licensed to engage in the business of outdoor advertising within the state of Florida pursuant to Section 479.04, Florida Statutes. Lamar owns a V-shaped sign located on certain real property at 1940 Thomasville Road in Tallahassee. Thomasville Road is also known as State Road 61. Lamar does not own the real property, but has the right to erect and maintain its sign on the property under a lease that Lamar executed with the landowner in 1998. Lamar's sign was erected in 1998, with the approval of the City of Tallahassee. The sign is located on the southwest corner of the intersection of Thomasville and Betton/Bradford Road, behind the Southern Flooring showroom. The east side of the sign face is within 660 feet of and visible to State Road 61. State Road 61 is a federal-aid highway and thus a "controlled road" subject to the jurisdiction of the Department pursuant to Section 479.07(1), Florida Statutes. Therefore, the east side of the sign requires a permit from the Department. The west side is visible only to Bradford Road and does not require a permit from the Department. On February 10, 2008, Lisa Adams, an outdoor advertising inspector conducting an annual inventory on behalf of the Department, identified the subject sign as an unpermitted sign that is visible from State Road 61. Ms. Adams completed a Department compliance checklist stating that the sign was possibly illegal because it lacked a Department permit and the east side of the sign was visible from State Road 61. On April 22, 2008, the Department issued a notice of violation stating that the sign was illegal and must be removed within 30 days of the date of the notice, pursuant to Section 479.105, Florida Statutes. Lamar did not file a request for hearing in response to the notice of violation, and does not contest the notice of violation in this proceeding. On May 16, 2008, Lamar filed an Application for Outdoor Advertising Permit for the sign. The Department reviewed the application and issued a Notice of Denied Application on May 30, 2008. The application was denied because the sign site does not meet the spacing requirements of Section 479.07(9)(a)2., Florida Statutes, in that it is closer than 1,000 feet from another permitted sign owned by Lamar. The other permitted sign was built in 1979. The 1,000 foot spacing requirement has been in the statute at all times since the 1998 construction of the sign at issue in this proceeding, meaning that it could never have met the spacing requirement of Section 479.07(9)(a)2., Florida Statutes. Myron Laborde was Lamar Advertising Southeast's regional manager in 1998 when the sign was built. His area of authority included Tallahassee. Mr. Laborde testified that in 1998 the view of the sign from State Road 61 was obstructed by several palm trees, some scrub oaks, and a very tall tallow tree. Some of these trees were removed when Southern Flooring took over and remodeled the old Helms Exterminators building at 1940 Thomasville Road about four years ago. Mr. Laborde testified that the sign is now visible from State Road 61 due to the removal of the trees, but only "if you . . .turn your head 90 degrees" while driving north on State Road 61. Loyd Childree has been the vice-president and general manager of Lamar of Tallahassee since 2003. Mr. Childree testified that the renovations to the Helms Exterminators building began some time after March 2005, and that the building's size was nearly doubled to accommodate the Southern Flooring showroom. Mr. Childree testified that a lot of trees were removed during the renovation, including palm trees and a "canopy-type tree" about 25 to 30 feet tall with a full crown similar to that of an oak. Mr. Childree testified that the sign is now visible from State Road 61 due to the removal of the trees. Mr. Childree further stated that Lamar markets the sign to advertisers based on the traffic counts from Bradford Road, not those from State Road 61. Ms. Adams, the inspector who identified the possible illegality of the sign, has worked for the Department's contractor, TBE Group, since August 2004. Her job is to conduct an inventory of permitted signs on controlled roads such as State Road 61 and determine which unpermitted signs are visible from the roadway. Ms. Adams inventoried State Road 61 in 2005, 2006 and 2007 without identifying Lamar's sign as an unpermitted sign visible from the roadway. Ms. Adams testified that her predecessor in the position inventoried State Road 61 every year since Lamar's sign was erected and never identified the sign as one visible from State Road 61. Ms. Adams testified that she might have seen the sign in a previous year but did not identify it as illegal because she believed it had "on-premise" advertising, i.e., it advertised Southern Flooring. With certain restrictions, a sign erected on the premises of a business establishment that bears advertising for that establishment is exempt pursuant to Section 479.16(1), Florida Statutes. Ms. Adams frankly conceded that she was speculating and that her memory was unclear as to whether she had seen and noted this sign in past years. In any event, Lamar's log of advertisers showed that Southern Flooring never advertised on the sign. Lynn Holschuh is the Department's state outdoor advertising administrator, and had held this position since 1992. Ms. Holschuh testified that State Road 61 has been inventoried by an outdoor advertising inspector every year since Lamar's sign was erected in 1998. None of the inspectors noted the visibility or possible illegality of the sign until Ms. Adams noted the sign on February 12, 2008. Ms. Holschuh lives in Tallahassee and has driven on State Road 61 hundreds of times over the years. In her deposition, she testified that she believed the sign was not visible when it was built, and only became visible from State Road 61 when a third party removed the obstructing trees. The testimony of Mr. Laborde, Mr. Childree, and Ms. Holschuh was credible and uncontroverted as to the history of the sign. It is found that the sign was not visible from State Road 61 when it was erected in 1998, but that it became visible from State Road 61 when trees were removed by the landowner during renovations to the old Helms Exterminators building at some point after March 2005. Lamar's sign, now visible from State Road 61, is subject to the Department's jurisdiction pursuant to Section 479.01, Florida Statutes, because State Road 61, as a federal- aid primary highway, is a "controlled road" under the statute. A sign visible from a controlled road must carry a Department permit. Lamar contends that the facts of this case establish that its sign meets the definition of a "nonconforming sign" set forth in Section 479.01(14), Florida Statutes: "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. Lamar's sign was not visible from State Road 61 in 1998 and therefore was "lawfully erected" in terms of the Department's licensing requirements. Lamar contends that the removal of trees by a third party constituted "changed conditions" that rendered the sign out of compliance with state law, and that the sign is therefore a nonconforming sign under Section 479.01(14), Florida Statutes. The Legislature has provided no definition of the term "changed conditions," and the Department has no rule to provide interpretive guidance to the words of the statute. On September 17, 2008, Lamar filed a motion for leave to amend its petition for hearing in this case to challenge the Department's alleged interpretation of the phrase "due to changed conditions" as an unadopted rule. In particular, Lamar alleged that the Department was applying an unadopted rule limiting "changed conditions" to those initiated by a government agency. On September 19, 2008, the Department filed an unopposed motion to remand the case to the agency. The motion was granted on September 22, 2008. In the Florida Administrative Weekly dated November 26, 2008 (vol. 34, no. 48, p. 6228), the Department published a Notice of Development of Proposed Rule, with the following preliminary text of an amendment to Florida Administrative Code Rule 14-10.006: 14-10.006 Additional Permitting Criteria. Each application for an outdoor advertising sign permit shall meet the requirements of Sections 479.07(9) and 479.11, F.S. In addition, an application must comply with the requirements of the agreement between the state and the United States Department of Transportation referenced in Section 479.02(1), F.S., which have not been duplicated in Sections 479.07(9) and 479.11, F.S., or superseded by stricter provisions in those statutes. The requirements are: through (8) No change. (9) The term "changed conditions" referenced in Section 479.01(14), F.S., defining nonconforming signs, means only the actions of a governmental entity, as defined by Section 11.45, F.S., which includes for example: Rezoning of a commercial area, reclassifying a secondary highway as a primary highway, or altering a highway's configuration causing a preexisting sign to become subject to the Department's jurisdiction. (Emphasis added) Ms. Holschuh testified that this draft rule language was written in direct response to Lamar's allegation that the Department's denial of its application was based on an unadopted rule. On December 16, 2008, the Department held a workshop on the draft rule. At the workshop, the Florida Outdoor Advertising Association ("FOAA") submitted the following suggested draft language for subsection (9) of Florida Administrative Code Rule 14-10.006: (9) The term "changed conditions" referenced in Section 479.01(14), F.S., defining nonconforming signs, means, and shall include, any of the following: An action taken by a governmental entity, as defined by Section 11.45, F.S., such as the rezoning of a parcel of property fro commercial to noncommercial, reclassifying a secondary highway to a primary highway, altering a highway's configuration, or the taking of any other action within the powers of such governmental entity which thereby causes a preexisting sign to become subject to the Department's jurisdiction; The action of a third party, who is not the owner of a preexisting sign, relating to modifications to the topography, vegetation, buildings or other physical characteristics of the property upon which the sign is located, or the property surrounding the sign, which thereby causes a preexisting sign to become subject to the Department's jurisdiction. an act of God which thereby causes a preexisting sign to become subject to the Department's jurisdiction. The Department rejected the FOAA's proposed language, and ultimately abandoned the effort to adopt a rule defining the term "changed conditions." On September 18, 2009, the Department filed a motion with DOAH to reopen this case and proceed to a fact-finding hearing regarding its proposed rejection of Lamar's application. In her deposition, Ms. Holschuh testified that the rulemaking effort was abandoned because the language proposed by the FOAA made it clear that it would be "nearly impossible" to arrive at a definition that would cover "every situation that might arise for when an existing sign might suddenly become visible." Ms. Holschuh testified in deposition that it is now the Department's policy to review these matters on a case-by- case basis. However, she also testified that the Department, as a matter of "policy," continues to limit its consideration of "changed conditions" to actions taken by a governmental entity. The Department bases this limitation on the examples provided by 23 C.F.R. § 750.707(b), defining "nonconforming signs" for purposes of the Federal Highway Administration: A nonconforming sign is a sign which was lawfully erected but does not comply with the provisions of State law or State regulations passed at a later date or later fails to comply with State law or State regulations due to changed conditions. Changed conditions include, for example, signs lawfully in existence in commercial areas which at a later date become noncommercial, or signs lawfully erected on a secondary highway later classified as a primary highway. Ms. Holschuh stated that the Department's policy was applied to Lamar in the instant case, and would continue to be applied in the future unless some "extraordinary circumstance" in a specific case led the Department to revisit the policy. At the final hearing, Ms. Holschuh backed away somewhat from her flat statement that the Department's "policy" was to limit consideration of changed conditions to those caused by government action. She stated that FOAA's proposed rule language caused the Department to reconsider its position that governmental action should be the exclusive reason for granting a permit for "changed conditions," and testified that the Department will consider other circumstances in its case-by-case review of permit applications. Ms. Holschuh testified that, under the facts presented in this case, the Department would deny the permit because there is DOAH case law on point for the proposition that tree removal does not constitute "changed conditions," and because broadening the definition of "changed conditions" to include the situation presented by this case would open up the process to abuse. Ms. Holschuh testified, at more than one point in the proceeding, that the Department would have very likely granted the permit had the trees been removed by the Department rather than the private landowner. She gave no indication that Section 479.105(1)(e), Florida Statutes, or any other statute would prevent the Department from granting the permit for Lamar's nonconforming sign, should the Department find that the sign fell into nonconformity due to "changed conditions." The DOAH case law cited by Ms. Holschuh is Lamar of Tallahassee v. Department of Transportation, Case Nos. 08-0660 and 08-0661 (DOAH September 15, 2008), discussed more fully in the Conclusions of Law below. Ms. Holschuh testified that Lamar's sign is not located in a Department right-of-way and is not a hazard to the public in its current location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation denying the application of Lamar of Tallahassee for a state sign permit for a location described as State Road 61 (U.S. 319), 168 feet west of Thomasville Road, in Leon County, Florida (Application Number 57155). DONE AND ENTERED this 7th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of June, 2010.
The Issue There are two separate issues in this case: (1) Whether Petitioner breached its contract with Respondent by not making payments for a sign lease, thereby resulting in the sign permit becoming invalid; and (2) Whether Petitioner constructed a roadside sign illegally, i.e., without a permit.
Findings Of Fact Petitioner, SG Outdoor, is a company engaged in the business of outdoor advertising in Florida. Respondent is the State of Florida ("State") agency responsible for monitoring compliance with State and Federal laws relating to outdoor advertising. According to those laws, signs within 660 feet of primary or interstate roadways visible from those roadways are subject to advertising regulations. There is currently a 1,500-foot spacing requirement (up from 1,000 feet in 1984) between signs. Further, signs must be located on land zoned for commercial and industrial use. Petitioner owns two signs which are at issue in this proceeding. One of the signs is a single facing sign of wood construction with a seven-foot height above ground level. The sign is assigned Tag No. AU557. The sign is situated just off Interstate 4, .871 miles east of State Road 33 in Polk County, Florida. This sign will be referred to herein as the "Original Sign." The Original Sign was built in 1971 and was located, at all times relevant hereto, on land owned by Mrs. Ona Grimes until that land was purchased by the State in October 2002. Petitioner also constructed another sign at approximately the same location. This sign, referred to herein as the "New Sign," has a double-faced, single-metal pole and is considerably higher in height than the Original Sign. Both the Original Sign and the New Sign are located on property which DOT contends is zoned as "Pasture, with residence." However, Polk County did away with its zoning ordinance in March 2000 and replaced it with Land Use Districts. The current Land Use District designation for the site is Business Park Center (within the Green Swamp Area of Critical State Concern). There was no competent testimony at final hearing as to whether that designation constitutes commercial or industrial zoning for purposes of roadside signs. The Original Sign was purchased by Petitioner in 1991 and was located on the Grimes property. Petitioner entered into a Ground Lease with Grimes that had a term of 30 years at a payment of $1,500 per year. In 2002, DOT entered into negotiations with Grimes to purchase the property. When DOT purchases property on which a roadside sign already exists, DOT may take the sign by way of condemnation through eminent domain (sometimes referred to by DOT as a "Take"). In such cases, the State must reasonably compensate the sign owner for the taking of its sign. In the alternative, the State may assume the sign lease and become a lessor to the sign owner. In that case, the sign owner must make its lease payments directly to the State. On May 22, 2002, DOT sent a letter to Petitioner explaining that DOT was in the process of acquiring the right of way on which the Original Sign was located. DOT offered to purchase (or Take) the sign from Petitioner for $17,300. While that offer to Petitioner was pending, DOT went forward with the purchase of the Grimes property. The purchase agreement for the property was signed by Grimes on July 11, 2002. Four days later, a letter from DOT to Petitioner was issued which said: Subsequent to receiving agreement and signed ODA [out door advertising] disclaimer from the property owner, an offer has been made to SG Outdoor, Inc. for the purchase of the ODA structure. Negotiations are ongoing. However, the purchase of Grimes property did not occur immediately. Meanwhile, in August 2002, Grimes entered into an illegal lease with Lamar Advertising, giving Lamar the same rights it had already contracted away to Petitioner. Petitioner was unaware of the lease with Lamar at that time. Such a lease would have been in violation of the already-existing lease between Grimes and Petitioner. At almost the same time, a DOT memorandum indicated that DOT was still "involved in ongoing negotiations" with Petitioner concerning the sign. The Grimes property purchase (by DOT) finally closed on October 1, 2002, at which time DOT became the owner of the Grimes property. Because of this fact, Petitioner was supposed to make its annual lease payments to the State of Florida ("State") as the new owner. Stated differently, the State became Petitioner's new lessor. On October 14, 2002, Lamar Advertising filed a Sign Permit Application with the Polk County Building Division. The application was for approval of its sign on the Grimes property. The application included a copy of Lamar's lease with Grimes; the lease had a 10-year period and a payment of $4,000 per year.1 On July 8, 2003 (ten months after DOT purchased the property), Petitioner filed a permit application with Polk County for the New Sign. Petitioner did not, at that time, have permission from DOT to erect a new sign, but believed it could obtain that permission after the fact. Petitioner then went forward with the construction of the New Sign. Meanwhile, Petitioner sent Grimes a check in October 2003, for its lease payment for the period June 1, 2003, through May 30, 2004. By that time, the State already owned the Grimes property. A member of the Grimes family sent Petitioner's check back to Petitioner in January 2004, explaining that all payments should be made directly to the State. There is no evidence in the record as to whether Petitioner attempted to make a lease payment to the Department at that time or at any other time. In November 2003, DOT issued a certified letter to Petitioner addressing Sign Permit No. AU557 that said: On October 2, 2002, the above referenced parcel was purchased by the Florida Department of Transportation. Although the Department will honor an existing lease, it will not engage in any new lease agreements nor grant permission for the referenced sign to remain. Since any potential oral agreement with the previous owner has expired, the Department requests that the [Original] sign be removed. Clearly DOT was mistaken. Petitioner had a written, not oral, lease with the prior owner. In response, Petitioner sent DOT a copy of its Ground Lease with Grimes. At that time, Petitioner also asked for a meeting with DOT's acquisition director to continue negotiating a fair price for the Original Sign. Several months later (on July 9, 2004), DOT issued its Notice of Violation regarding the Original Sign. The notice said "that the outdoor advertising sign referenced above has been acquired by the Department" (rather than saying the Department had purchased the land). The notice directed Petitioner to immediately remove the sign from the premises. The notice was partially in error; DOT had actually acquired the land, not the sign. Petitioner was in breach of its lease with the State by failing to make lease payments as required by the lease which DOT had assumed. However, it is unclear as to whether, upon notice of receipt of the written lease, DOT had ever advised Petitioner to send its lease payments directly to the Department. The Notice of Administrative Hearing Rights attached to the DOT Notice of Violation indicates a deadline of 30 days from receipt of the Notice for filing such a request, i.e., on or about August 10, 2005. Petitioner responded to the Notice with another letter (dated July 14, 2009) explaining again that it had a valid lease with Grimes for the sign location. Petitioner's letter asked DOT to abate its violation notice and reinstate Petitioner's permit. It also stated that "[i]f the State decides not to acknowledge the Judicial process [the ongoing probate dispute with the Grimes family concerning the lease with Lamar] and still proceeds with the Notice of Violation, then upon receiving your next correspondence, we will exercise our privilege to request an administrative hearing." Petitioner contends that the quoted statement constituted its request for an administrative hearing. However, the plain reading of the statement indicates that it is a statement of future intent based upon future actions by DOT. DOT then issued a letter dated August 10, 2004, to Petitioner explaining that the permit for the Original Sign had been revoked. The letter directed Petitioner to remove the sign. The letter stated that if Petitioner does not do so, then DOT would have the right to remove the sign. (As of the date of the final hearing in this matter, the sign was still in place.) The August 10 letter, in response to Petitioner's July 14 letter, appears to be the "next correspondence" Petitioner had requested. The exercise of its right to an administrative hearing would, therefore, be due on or about September 11, 2004. On September 8, 2004, Petitioner sent a letter to Holschuh declining DOT's offer to purchase the Original Sign for $17,000. That offer had been made in May 2002.2 This letter suggests a counter-offer of $82,500 as the purchase price. The letter did not invoke Petitioner's right to an administrative hearing. Holschuh responded that she was not involved in acquisitions, and Petitioner should contact the district office (with whom Petitioner had previously negotiated). Instead of heeding Holschuh's directions, Petitioner then sent her another letter asking her to send the correspondence on to someone in the acquisition division. The new letter also repeats the counter-offer of $82,500. This letter did not invoke Petitioner's right to a formal hearing, either. About one year later, on October 6, 2005, DOT issued another Notice of Violation, this one addressing Sign Permit No. AU557a (which Holschuh at final hearing said referred to the Original Sign, although there was no "a" nomenclature on the July 9, 2004, Notice of Violation). Also, on October 6, 2005, DOT issued a Notice of Violation addressing Sign Permit No. AU557a#2, which Holschuh said referred to Petitioner's New Sign, even though no permit for the New Sign had ever been issued by DOT. The New Sign by this time had been completed and was being used for outdoor advertising. Petitioner understands the need for a permit to construct a new outdoor sign on the State road right-of-ways, but opined that it believed it could do so after the fact. Petitioner has only obtained approval from Polk County for erecting the sign, an event necessary for construction purposes, but irrelevant to DOT requirements. In the letter to DOT from Petitioner dated October 26, 2005 (and presumably accepted by DOT as Petitioner's request for a formal hearing), reference is made to Sign Permit No. AU557a#2, i.e., the New Sign. However, the letter addresses the Original Sign and its perceived value by Petitioner. It is patently unclear as to which sign is actually being addressed, but facts surrounding both signs were presented at final hearing and both have been addressed herein. Nonetheless, Petitioner's October 26, 2005, letter was submitted within 30 days of the latest Notice of Violation and was presumably intended to invoke Petitioner's right to a formal administrative hearing. This letter was then forwarded to DOAH by DOT in March 2009, for the purpose of conducting the hearing. (No evidence was presented as to why the DOT's cover letter and Petitioner's request for hearing were not submitted to DOAH until three-and-a-half years after the letter was written.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, reversing the revocation of Sign Permit No. AU557 and providing Petitioner, SG Outdoor, just compensation for that sign. Further, the final order should deem the newly constructed sign on the same site to be unauthorized and order its removal. DONE AND ENTERED this 19th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 19th day of November, 2009.
