The Issue The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location. The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.
Findings Of Fact Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked. DONE AND ENTERED this 11th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street Pensacola, Florida 32503 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Findings Of Fact On May 18, 1979, and May 25, 1979, Henderson Signs filed applications for seven permits to erect seven outdoor advertising sign structures in Washington County, Florida, adjacent to Interstate 10 in the proximity of State Road 77. These applications were field approved by the Department's outdoor advertising inspector and by his supervisor on or about May 30, 1979. Thereafter, on or about June 6, 1979, the Department issued permit numbers 11176-10, 11170-10, 11172-10, 11174-10, 11175-10, 11178-10 and 11179-10 to Henderson Signs. These permits authorized the erection of the signs in the vicinity of the I-10 and S.R. 77 interchange in Washington County, which are the subject of this proceeding. Subsequent to the issuance of theme permits, Henderson Signs erected the signs at the permitted locations. Thereafter, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in these signs and in the permits which authorized them to be erected. Prior to this transfer, the Respondent's representatives inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. Two of the Respondent's representatives testified that they received assurance from the outdoor Advertising Administrator in the Chipley district office that these permits were legal permits. This testimony, however, is self-serving and uncorroborated, and thus is not of sufficient quality to support a finding of fact. The subject permits had been issued by the Department because its district personnel believed that the proposed locations were in areas which had been zoned by the proper authorities of Washington County as commercial. Each of the permit applications submitted by Henderson Signs asserted that the site applied for was in a commercial or industrial zoned area. However, these assertions by Henderson Signs on its permit applications were false. There is not currently nor has there ever been any zoning in effect in Washington County on land located along I-10. The Department's district personnel in Chipley were thus misled by the assertions made by Henderson Signs on its applications. Although zoning ordinances are a matter of public record, and the Department's district personnel might have more thoroughly checked to ascertain if the subject sites were zoned as indicated on the applications, so also did the Respondent's representatives have this opportunity to ascertain the true zoning situation for the sites where they proposed to buy signs. The Respondent is an outdoor advertising company which has been in the business of outdoor advertising since at least 1976. It was aware that signs along an interstate highway must be located in either a zoned or an unzoned commercial or industrial area. Its normal procedure is to check with the county relative to zoning. Nevertheless, the Respondent did not verify the zoning status of any of the subject sites before consummating the purchase of these signs from Henderson Signs. The subject signs are located in a rural setting, and there is no commercial activity located in the area. Prior to October, 1984, these sites were inspected by the Department's Right-of-Way Administrator. As a result of this inspection, notices of violation were sent to the Respondent advising it that proceedings were being initiated to revoke the subject permits because the locations were not in a zoned or unzoned commercial or industrial area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that signs bearing permit numbers 11176-10, 11170-10, 11172-10, 1174-10, 11175-10, 11178-10, and 11179-10, held by the Respondent, Tri-State Systems, Inc., authorizing signs in proximity to the I-10 and SR-77 interchange in Washington County, Florida, be revoked, and the subject signs be removed. THIS RECOMMENDED ORDER entered this 1st day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire O. Box 2151 Orlando, Florida 32802-2151 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
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 By Advertising Sign Permit dated March 4, 1985 (Exhibit 3), Clear Vu Media was authorized to locate a sign with both east and west facing boards on State Road 52, 2- 1/2 miles east of Plaza Drive (Little Road). The permit was issued by Linda K. Brown, outdoor advertising inspector for DOT. Prior to issuing the permit Brown visited the proposed site and approved the location as meeting the requirements for an outdoor advertising sign. Subsequent to the erection of the sign Brown inspected the sign and found the sign to be located on a site other than the approved site. The existing structure is located 890 feet from another existing and permitted sign. The approved site is located at least 1,000 feet from this existing sign and from any other permitted sign along State Road 52. State Road 52 is a federal-aid primary highway. A Notice of Hearing was sent to Clear Vu Media, Post Office Box 2038, New Port Richey, Florida 33552, by U.S. Mail and was not returned as undelivered.
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 =================================================================
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, 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 DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
Findings Of Fact Petitioner owns the sign located on the west side of and adjacent to U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for a permit to maintain a sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied. DONE and ENTERED this 5th day of June, 1991, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate. The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence. The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate. COPIES FURNISHED: William K. Jennings 119 E. Park Avenue Tallahassee, Florida 32301 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
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
