The Issue The issue is whether Respondent's outdoor advertising sign on State Road 200, 5.37 miles east of U.S. Highway 17, should be removed because it does not have a permit for said sign.
Findings Of Fact Ronald L. Peacock, owner of Peacock Electric Company, had his employees erect a two-sided sign on State Road 200, 5.37 miles east of U.S. Highway 17. Mr. Peacock acknowledges that he did not have a permit for the sign and that he knew he needed a permit at the time he had the sign erected. He testified that he just hoped he would not get caught. State Road 200 is a federal aid primary road. After he was first notified that the sign was erected without a permit, Mr. Peacock filed an application for a permit. The application was rejected because it did not contain the necessary fees, the permission of the landowner, or the local building permit. Additionally, the location of the sign is 942 feet from an existing permitted sign. The sign is five feet from the right-of-way. Mr. Peacock removed the sign after this action was filed by DOT. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes. As relevant to this case, Section 479.105, Florida Statute, states: Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by S. 479.07(1) having been issued by the department, is declared to be a public nuisance and shall be removed as provided in this section. * * * (d) If, after a hearing, it is determined that a sign has been wrongfully or erroneously removed pursuant to this subsection, the department, at the sign owner's discretion, shall either pay just compensation to the owner of the sign or reerect the sign in kind at the expense of the department. In this case, the sign was erected without a permit and Mr. Peacock has correctly been denied a permit. The sign has been removed as required. The sign owner has not proven that the sign was erroneously removed. Hence, the sign cannot be reerected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order and therein order the removal of the sign in question and deny any request for reerection of the sign without a permit. DONE and ENTERED this 16th day of March, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 16th day of March, 1990. COPIES FURNISHED: Charles Gardner Attorney at Law Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Ronald L. Peacock Peacock Electric Company Route 1, Box 137-D Fernandina Beach, FL 32034 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Should certain outdoor advertising signs owned by Respondent, Lamar East Florida (Lamar) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Lamar?
Findings Of Fact Lamar is licensed pursuant to Chapter 479, Florida Statutes, to conduct the business of outdoor advertising. The Department regulates the outdoor advertising business in accordance with that law. In 1964, outdoor advertising signs that are the subject of the proceeding were constructed along US Highway 1 in Volusia County, Florida. Subsequently, in 1971, outdoor advertising signs which are the subject of the proceeding were constructed along Interstate 95 in Volusia County, Florida. The signs in both places are subject to permits issued by the Department to Lamar. The signs were legally erected but became nonconforming based upon their spacing in relation to other permitted outdoor advertising signs. The Lamar signs and their spacing are described as follows: Permit No. BN674-55, East of Interstate 95, 3.183 miles north of NEB790079 Hull Road is 881 feet from a permitted sign to the north. Permit No. BJ689-55, East of Interstate 95, 2.588 miles north of NEB790079 Hull Road is 343 feet from a permitted sign to the north. Permit No. BN681-55, East of US Highway 1, 0.088 miles north of Pine Tree Drive is 216 feet from a sign under Permit No. BU855. Permit No. BN682-55, East of US Highway 1, 0.027 miles north of Hull Road is within 332 feet of a permitted sign to the north. Permit No. BV232-55, East of US Highway 1, 0.0129 miles north of Pine Tree Drive is 216 feet from a permitted sign to the north. Each of the Lamar signs is within 660 feet of the first named highway or interstate, within Volusia County, Florida. Lamar owns and maintains the outdoor advertising signs that have been identified. On June 19, 1998, under dry weather conditions, a series of lightening strikes started a wildfire in a remote swampy area. Before the fire ended in July of 1998 its dimensions were extensive. The wildfire burned in Volusia and Flagler counties, Florida, west of Daytona Beach and Ormond Beach, Florida, and extending into the city of Ormond Beach. Eventually, it consumed the Lamar signs that have been described to the extent that the up-right wooden supports of each of the signs were substantially burned. This destruction took place on July 1, 1998. The degree of destruction was within the definition of "destroyed" set out in Rule 14- 10.007(1)(d), Florida Administrative Code. Before their destruction the signs had been lawfully permitted by the Department. Interstate 95 and US Highway 1 had been closed to the public before the Lamar signs were "destroyed." The attempt by Lamar to gain access to the outdoor advertising signs was not successful because of the road closures by government authorities. Following their destruction, Lamar re-erected the structures by reinstalling the signs at the same locations using substantially the same type of materials as had been previously found in the structures being replaced. None of the materials used to re-erect the signs were part of the sign structures immediately before the destruction of the original signs by the wildfire. When re-erected the signs were the same size, shape, and height of the destroyed signs. Lamar does not own the property where the signs are located. Lamar operates pursuant to agreements with property owners by which Lamar has the right to maintain the signs. Upon the expiration or termination of the agreements with the property owners, Lamar may remove all of its sign materials from the properties and absent an agreement no longer maintain the signs. Lamar has no other business interest in the properties where the signs are located. The purpose of the outdoor advertising signs is to lease advertising space to third parties for advertising purposes which generates income to Lamar. Each outdoor advertising sign in question provides that income. The suppression effort directed to the fire was limited due to the remoteness of the swampy area in which the fire originated and a paucity of manpower and equipment. As a consequence, the firefighting effort did not begin in earnest until June 20 or 21, 1998. The fire was combated through efforts of the Florida Department of Agriculture, Division of Forestry and other national, state, and local firefighting organizations. The fuel for the fire, that is, bushes and trees, was dry. The weather conditions were highlighted by low relative humidity and a very high dispersion index. The smoke from the fire rose in the atmosphere and carried its embers from the west to the east. The fire came out of the Hull Cypress Swamp and the embers picked up by the wind crossed fire control lines and continued to spread to the east. Eventually, the two main fingers of the fire burned together on July 2, 1998. Before it was suppressed the fire, known as the Rodeo Road Fire, would consume 61,500 acres. The progress of the fire is depicted in Petitioner's Exhibit No. 1, a map of the area in question, to include the area in which the subject signs were located. Petitioner's Exhibit No. 3 portrays the location of the signs more precisely. More specifically, the conditions in the swamp were extremely dry at the time the fire commenced as evidenced by the available dry fuel load in the swamp, which fuel load would normally be wet. Under wet conditions the fire would either not have burned or would have meandered. Given the dry conditions in the swamp in June 1998, there was a lot more fuel available to burn. East of the swamp the land that was burned was constituted of pastures, range land, and forest lands. Some areas had been subjected to prescribed burning to control available fuel loads in an incidence of wildfire but other areas had not been subjected to prescribed burning before the wildfire. Had property owners in the area affected by the wildfire conducted prescribed burning before that event it would have reduced the fuel load available for incineration. In some places in the advance of the wildfire the fuel loads were heavy, in other places less so, in that the property was constituted of pastures. In addressing the fire, the firefighters' priorities, in turn, included their safety; the safety of the public; the protection of property, to include structures; and finally the protection of resources such as timberland. By their efforts in addressing this incident the firefighters managed to save homes and businesses by creating defensible space around those structures against the on-set of the fire. The area of defensible space necessary is at least 30 feet, which reduces the chance of direct flame impact on the structure. Another technique that was employed to address the consequences of the wildfire was backfiring or imposition of the "black line concept." This is a nationally recognized firefighting technique. It is used when a fire is burning in an area that is inaccessible or has a potential to overrun a fire control line in a setting in which unburned fuel exists between the main fire and the control line. The unburned material is then deliberately burned before the main fire reaches that area to protect the control line from the main fire. The backfire is best employed when the weather conditions are conducive to its use, including wind direction and levels of humidity. During the time that the Rodeo Road Fire took place the use of backfires was not especially successful due to the dryness of the fuels. In the course of the Rodeo Road Fire, Georgia Pacific now known as the Timber Company, used a backfire to protect its property against the northward and eastward progress of the wildfire. The backfire was lit on June 28, 1999. The backfire by the Timber Company did not control the wildfire. It was successful on the west flank of the wildfire but unavailing on the east flank where the backfire by the Timber Company intersected the wildfire and the wildfire continued its eastward progress which had already begun. The setting of the backfire by the Temper Company was an appropriate tactic. Its outcome was inconsequential when considering the progress of the wildfire and its eventual destruction of the signs. Nor is the decision of a California fire crew to use a backfire to protect itself and its equipment found to have meaningful significance in promoting the forward progress of the wildfire to the east where the wildfire would destroy the signs. The backfire lit by the fire crew occurred on July 1, 1998. Backfiring to secure safety is an approved tactic for firefighters in making an independent judgment to protect their lives.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which revokes the sign permits that have been described and requires the removal of those signs within 30 days of the entry of the final order. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings 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 this 21st day of October, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the Respondent is in violation of Chapter 479.07, 479.07(1), 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code. Petitioner contends: that subject outdoor advertising sign is in a rural area along the Interstate Highway system; that the only visible structure is a wholesale chicken house and therefore can not be considered in an unzoned commercial area; that the sign is not in an urban area properly zoned to permit outdoor advertising. Respondent contends: that the offending structure is primarily a trailer and not a sign, that it is in an unzoned commercial area; and that as a sign it falls within the exception of Section 479.16(11), Florida Statutes.
Findings Of Fact Respondent, Rich's Texaco Truck Stop, is the owner of a trailer, located in Holmes County, Florida near Interstate 10, approximately 9/10 of a mile West of State Road C-181, which has the following written on the side of said trailer: "Portable storage leased from Rich's Texaco Truck Stop Exit 79, Bonifay, Florida." Land upon which the above mentioned trailer-sign is located is in an unzoned area within the municipal limits of Westville, Florida, but there is no urban development visible from Interstate 10. At the time the violation notice was sent to Respondent on November 22, 1977, said trailer-sign was located approximately 16 feet from the fence marking the right-of-way of Interstate 10. At the time of hearing it was approximately 5 feet from the right-of-way. The trailer-sign is located within 100 feet of a structure used primarily for the business of raising chickens but is not in an unzoned commercial area. Said trailer with similar sign painted thereon was the subject of a prior hearing and by final order dated April 5, 1977, the Respondent was ordered to obliterate the sign. A copy of said order is attached hereto and made a part hereof. Subject sign merely bears different copy but advertises the same business owned by the same parties. The owner admitted that the trailer could he rented but that its primary purpose was to advertise Rich's Truck Stop.
Recommendation Remove the sign of Respondent together with the trailer used as a billboard structure within ten (10) days after entry of the final order if Respondent has not previously removed said structure and sign. If Respondent displays a similar sign near the truck stop along the interstate highway system contrary to Chapter 479, Florida Statutes, at a subsequent time to this recommended order, invoke the penalties as provided by Section 479.18, Florida Statutes. DONE AND ENTERED this 18th day of July, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John J. Rimes, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Russell A. Cole, Jr., Esquire 123 North Oklahoma Bonifay, Florida 32425
The Issue As to DOAH Case No. 99-4902T, whether the outdoor sign bearing permit AF330 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0398T, whether the outdoor sign bearing permit AF330 was illegally rebuilt. As to DOAH Case No. 99-4903T, whether the outdoor sign bearing permit BF075 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0397T, whether the outdoor sign bearing permit BF075 was illegally rebuilt.
Findings Of Fact Respondent 1/ is the owner of two outdoor advertising signs, both of which are located in Indian River County, Florida, adjacent to Interstate 95. Both signs were erected in 1971 pursuant to sign tag numbers AF330 and BF075, respectively. Sign A is located .49 miles south of milepost 153. Sign B is located .67 miles south of milepost 155. Section 479.01(14), Florida Statutes, defines the term "nonconforming sign" as follows: (14) "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. When the signs were erected in 1971, the area in which both signs are located was a part of unincorporated Indian River County. In 1990, the area in which both signs are located was annexed into the City of Fellsmere, Florida. Prior to the annexation, the area was zoned by Indian River County under the agricultural designation. That zoning designation has not been changed by the City of Fellsmere and the area remained zoned agricultural at the time of the final hearing. At all times relevant to this proceeding an outdoor advertising sign has not been an allowable use in an area zoned agricultural. There is an outdoor advertising sign less than 1,000 feet south of sign B, and there is an outdoor advertising sign less than 1,000 feet north of sign B. Both of these other signs are on the same side of the Interstate as sign B. When sign B was erected in 1971, the spacing requirements for signs along an Interstate Highway was 1000 feet, meaning that a proposed sign could not be within 1000 feet of an existing sign. Since 1984, Section 479.07(9)(a), Florida Statutes, has provided that outdoor advertising signs along an Interstate Highway must be at least 1500 feet apart. When initially constructed both sign A and sign B consisted of six wooden poles and wooden stringers. In October 1999, both sign A and sign B were destroyed by a hurricane. The hurricane knocked sign A completely down, the stringers were damaged, and all of the poles were snapped at ground level. Similarly, the hurricane knocked sign B completely down, the stringers were damaged, and four of the six poles were snapped at ground level. On October 29, 1999, Petitioner issued the Notices of Violation that serve as the basis for DOAH Case No. 99-4902T and DOAH Case No. 99-4903T. Both Notices alleged that the respective sign has been destroyed and may not be re-erected. 2/ Subsequent to the damage to sign A, Respondent erected another sign at the same location as that previously permitted for sign A. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag AF330 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0398T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed. Subsequent to the damage to sign B, Respondent erected another sign at the same location as that previously permitted for sign B. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag BF075 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0397T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order requiring the removal of each sign at issue in this proceeding. DONE AND ENTERED this 17th day of July, 2000, 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 17th day of July, 2000.
The Issue Is the Notice of Violation against Respondent valid; and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On June 7, 2001, DOT issued Notice of Violation 10B ST 2001 412, against a billboard sign located adjacent to Interstate 95 (I-95), approximately 1.3 miles north of the intersection of I-95 and U.S. Highway 1 at Exit 92. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95 and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The sign is a "permanent" one and has never been permitted by DOT. Exit 94 has not applied to DOT for a sign permit for the subject sign or paid any sign permit fees for it. No sign permit has been issued to any entity for the sign. The sign displays the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." The phrases on the sign are displayed on two stacked faces without the slashes. The letters are all capitalized; the size of the letters and the paint colors of yellow and black call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The words "WE DARE TO BARE" and "EXIT 94" are in very large black type and cover most of the two faces of the sign. The phrases "CAFÉ EROTICA," "ADULT TOYS," "GREAT FOOD," and the abbreviation "INC.," are the phrases smallest in size, located at the very top left, middle right, middle left and bottom right of the sign. All the small phrases are in black type and are relatively inconspicuous compared with the rest of the sign. There are no addresses, telephone numbers, arrows, or other identifying information on the sign. Respondent, Cafe Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., is a Florida corporation. It was incorporated in 1998. At all times material, Café Erotica, We Dare to Bare, Adult Toys/Great Food, Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, president, shareholder, and director of Respondent. Mr. Sullivan chose the name of the company because the words and phrases "get your attention," are memorable, and are words and phrases Mr. Sullivan has used a lot over the years to advertise for the Café Erotica. Exit 94 does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94 is the development of hunting and fishing camps on various pieces of property it owns or leases in Florida and Georgia. Café Erotica of Florida, Inc., d/b/a Café Erotica (Café Erotica), is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica. Exit 94 leases the land where the sign is located from James Grady Wainright, the owner of the property. The rental property consists of approximately ten acres. The lease was signed on April 20, 2001. The annual rent is $3000.00 per year. Mr. Wainright has received all the rent for 2001 from Mr. Sullivan. Mr. Sullivan was reimbursed by Respondent shortly after he paid the rent to Mr. Wainright. The stated purpose of the lease is the construction and maintenance of a hunting and fishing camp. The lease also authorizes Exit 94 to erect advertising signs on the property, states that any such signs will remain the property of Exit 94, forbids Mr. Wainright from obstructing the highway view of such signs, and grants Exit 94 permission to remove any vegetation that may obstruct the view of such signs. Mr. Wainright originally contacted Mr. Sullivan about leasing the property because he was interested in obtaining income from having a sign on his property. However, his interest resulted in the current hunting and fishing camp lease. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR 207), at the intersection of SR 207 and the exit 94 off-ramp from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94. The real property owned by Exit 94, which is the subject of DOT's Notice of Violation, is approximately nine miles from the Café Erotica restaurant. Mr. Sullivan makes the advertising decisions for Café Erotica. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Until about two weeks before the hearing of this matter, Café Erotica maintained a billboard at the café that displayed the words "PRIVATE DANCES," "GREAT FOOD," and "ADULT TOYS." At the time of hearing the billboards at Café Erotica now include words disparaging of the Department. Café Erotica does not own any interest in the subject sign and no citizen testified that the sign had caused him/her to patronize Café Erotica. However, given the similarity of the corporate name of Exit 94 to advertising used by Café Erotica and the location of Café Erotica at Exit 94, it is likely that Respondent's corporate advertising could also be interpreted as intended for Café Erotica and therefore be of incidental benefit to Café Erotica. On the other hand, the sign is intended to advertise Exit 94's hunting and fishing camps. In short, Mr. Sullivan and his corporations receive a dual benefit from the sign at issue here. Exit 94 lists addresses and locations other than the subject property as its business address(es) for various purposes. Mr. Sullivan's and Exit 94's main business address and office is on SR 206 off Exit 93 on I-95. Exit 94 maintains no office or telephone on the subject property. Jerry Sullivan has directed all activity on the Exit 94 property. His son is a licensed hunting and fishing guide. Jerry Sullivan anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp with guide services, if desired, provided by his son. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Currently, Exit 94's only revenues have been payments from other companies owned by Mr. Sullivan or his wife for use of the hunting and fishing camps maintained by Exit 94. The company has operated at a loss since its inception. The loss is made up by Mr. Sullivan as is needed. There is no public access to the property Exit 94 leases from Mr. Wainright. The property is accessible by going through property owned by a timber company. The closest exit off I-95 to get to the property is Exit 92, where U.S. Highway 1 intersects with I-95. As of the hearing of this matter, Exit 94 was not operating a fishing camp open to the public on the property leased from Mr. Wainright. However, such a public enterprise is not required in order for Exit 94 to be a legitimate business. The parties do not dispute the fact that there is a pond on the subject property. The evidence varied as to the size and quality of the pond with the lower estimate by the Department at 1/2 to 3/4 of an acre and the higher estimate of two acres provided by the landowner. Respondent estimated the size of the pond to be slightly less than two acres. The pond was not stocked with fish, but did have some fish present. Respondent has ordered special hybrid bream to stock the pond for "catch and release" by Respondent's customers and guests. The property was not stocked with game animals, although such stocks would not be necessary for hunting since wild game including turkey, boars, and ducks are already present. There was also one very ramshackle deer blind on the property. There were no public restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. A small trailer was located on the premises. The trailer was placed there and is owned by Mr. Wainright. It is unknown if the trailer is available for overnight lodging. However, the trailer is not necessary for the property to function as an overnight camp and no witness testified to having camped overnight on the subject property. Petitioner routinely distributes corn for seeding the woods for deer and other game. Given the location of the subject property, game attraction is certainly feasible. Bill Harry showed DOT personnel around the subject property. The Department's witness, Tom Simmons, was generally critical of the quality of the hunting and fishing facilities. While there were no people using the pond during his brief inspection, Mr. Simmons has no personal knowledge as to whether people actually hunted or fished on the property at any other time. The Department's representative acknowledged that he saw feed corn scattered on the property for use in luring wildlife to the premises. Exit 94 holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the county accepted Exit 94's designation of its business. Exit 94 has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94 produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Exit 94 is a legitimate business. It is in the business of providing and developing hunting and fishing camps for use as directed by Exit 94. No reason was demonstrated to pierce the corporate veil of Exit 94. The sign located on the property at issue here only and primarily contains the name of the corporation and is exempt from the general sign permitting requirements. Therefore, the Notice of Violation should be dismissed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact The sign in question is located .17 mile east of State Road 46 on the east bound side of Interstate 4 in Seminole County. The sign is a two-sided sign bearing the McDonald's logo and name, mounted on the top of a high monopole located adjacent to the interchange ramp 56 feet from the highway right of way. The sign is visible from the main traveled way of both lanes of the interstate highway. The Respondent, McDonald's, obtained a permit from Seminole County for the erection of the sign but did not apply to the Department for an outdoor advertising permit. The subject sign was noticed for violation on April 15, 1986, for having no State permit, for violating the spacing rules for signs on interstate highways, and for being within 500 feet of a restricted interchange. The McDonald's restaurant, owned by the Respondent and advertised by the subject sign, is located on a 1.6 acre parcel of land with 250 feet of frontage on Heckman Drive and approximately 425 feet deep. Heckman Drive runs north and south parallel to Interstate 4 and intersects State Road 46 east of Interstate 4. From the 1.6 acre parcel of land, a "7" shaped piece of land 10 feet wide runs over 400 feet to the north and approximately 160 feet to the west to a point 56 feet from the right of way of Interstate 4 where the subject sign is erected. The strip of property is not developed and contains no buildings or structures except the subject sign. There is no activity currently at the sign site. A drainage ditch separates the sign from the restaurant and a power line right of way intersects the strip. McDonald's offered a plan to use the connecting property for pedestrian walkway. No contracts were introduced showing any planned development in accordance with the plans presented.
Recommendation Having found that the subject sign is in violation of Section 479.07, Florida Statutes, and fails to qualify for the exemptions of Section 479.16 and may not be permitted because it violates the provisions of Section 479.07(9)(a), Section 479.11, Florida Statutes, and Rule 14-10.09, Florida Administrative Code, it is RECOMMENDED that the Department enter a Final Order directing the Respondent to remove the subject sign and give the Respondent notice that if the sign is not removed within 30 days, the Department will remove the sign and take action to recover the cost of removal from the Respondent. DONE and ORDERED this 16th day of February, 1987, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 16th day of February, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Jerry B. Smith, Esquire Post Office Box 9166 Coral Springs, Florida 33075 Frederick B. Karl, Jr., Esquire COBB & COLE Post Office Box 191 Daytona Beach, Florida 32015 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Thomas Bateman, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 =================================================================
The Issue The issue is whether Petitioner is maintaining signs illegally as alleged in a Notice of Violation issued to Petitioner.
Findings Of Fact Respondent, Department of Transportation (DOT), is the state agency that regulates outdoor advertising signs located within 660 feet of the State Highway System, interstate, or federal-aid primary system, as provided in Section 479.105, Florida Statutes (2008). On January 3, 2008, DOT issued Notice of Violation T117MB alleging that eight signs on the Shiver Property (Shiver) in Florida City, Florida, were erected illegally, and requiring the owner to remove or to pay DOT to remove the signs. There is no dispute that the permits to erect the signs have not been issued by DOT. The signs are mounted on top of the Shiver building located at 12 Northeast 3rd Street, Florida City, Dade County, Florida, and are from 16 to 27 feet apart from each other. The property is managed by Roy Dan Shiver (Mr. Shiver) who operates Shiver Glass and Mirror Company at the same location. Other tenants are the Frito Lay Company, a tax preparation service, and a real estate business. One of the signs on the Shiver building advertises for "Captain Shon's Seafood Grill & Pub Fish and Chips MM 103 - Key Largo." Another sign reads "The Big Chill Waterfront Dining 24 miles to Sports Bar Tiki Bar Pool MM 104 - Key Largo - Bayside." A third sign advertises "Sunset - Seafood Marker 88." Captain Shon's Seafood Grill & Pub Fish and Chips, Big Chill Waterfront Dinning, and Sunset - Seafood Marker 88 do not operate businesses on the Shiver property. The remaining five signs are various advertisements for The Shell Man including the following: "The Shell M Windchi T-shirt 32 miles on left * 70 on" (with apparent damage cutting off some of the words); "The Shell Man Unique Gifts * Full Service * Gas Station * Free Shell Necklace 32 miles on left;" "The Shell Man Take Home A pet! Hermit Crabs 32 miles on left * 70 miles on left;" "The Shell Man Come Blow A Conch Horn 32 miles on left;" and "The Shell Man Shark Necklaces Jaws & Gifts 32 miles on left * 70 miles on left." Mr. Shiver testified that The Shell Man has operated a business in the Shiver building for more than seven years, and currently operates in an office shared with Mr. Shiver after having moved from a separate office that is now occupied by a real estate company. His testimony regarding the length of time The Shell Man has operated a business at that location is not supported by the one lease he has with The Shell Man, dated January 1, 2008, with no other evidence of prior agreements. According to Mr. Shiver, The Shell Man operates a business by having brochures and samples of shells, that "they could sell" or "could give them away," in the Shiver office, but The Shell Man has no sign on the door and its owner comes and goes with no regular hours. Petitioner's claim that The Shell Man operates a business on the premises is not supported by the credible evidence. In response to questions concerning the zoning and any special designations for the area in which the Shiver building is located, Mr. Shiver was "sure it's zoned commercial," believed it was part of a community redevelopment area, and testified that it was "very possible" that it is in an empowerment zone. The signs on the Shiver building in Dade County all advertise for businesses located in Monroe County, and are oriented facing north to be seen by traffic heading south. Mr. Shiver testified that drivers on U.S. 1, a federal-aid primary highway, have to turn their heads and look back to see the signs on his building. A permitted billboard north of the Shiver property has two signs on it, one faces north and the other faces east. Petitioner takes the position that, (1) the eight signs are not on U.S. 1 but on the Florida Turnpike off-ramp leading onto U.S. 1; (2) that the evidence does not clearly show that the signs are within 660 feet of and visible from a federal-aid primary highway or interstate; (3) that the signs are not too close together or to the nearest permitted billboard that has signs facing in different directions; (4) that the local government, not DOT, has the authority to regulate the signs under an agreement with the federal government; and (5) sign regulations are inapplicable in the "distressed area." Mack Barnes, the DOT outdoor advertising inspector, who reported the possible sign violations to DOT testified that the signs are approximately 150 feet from the state right-of-way and are visible from U.S. 1. Mr. Barnes took a picture of the building with the signs to submit with his report. He could only submit one or two pictures with his report and to get the best vantage point, he took that picture from the Turnpike off ramp. Mark Johnson, the DOT regional advertisement inspector, also photographed the signs on the Shiver building. Like Mr. Barnes, he took some photographs from the Turnpike ramp, but he took one, Respondent's Exhibit 7, while he was standing on southbound U.S. 1. That picture shows the Shiver building and five of the signs on top of it. Based on Mr. Johnson's measurements, the signs are from 16-to-27 feet apart, and the distance to the nearest permitted billboard, with tag numbers BC367 and CG754, is 445 feet. The measurements were taken with a Nightstar Distance Measuring Instrument and are more exact than an earlier DOT estimate of 491 feet based on the milepost locations. On December 31, 2007, Mr. Johnson checked each door of the Shiver building to see if any of the businesses advertised on the signs were operating on the premises and they were not. He did not go inside any of the offices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the eight signs that are the subject of Notice of Violation T117MB are a public or private nuisance, and requiring that they be removed as provided in Subsection 479.105(1)(a), Florida Statutes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 1st day of April, 2009. COPIES FURNISHED: Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A. 411 Meridian Place Tallahassee, Florida 32303 Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelouso, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Department of Transportation ("DOT") originally issued sign permits in 1964 for the location authorized by Permits 3966-2 and 3967-2, and these permits have been renewed continuously thereafter. The location authorized by Permits 3966-2 and 3967-2 is on the east side of U.S. 441. Effective October 30, 1987, Eagle Outdoor Advertising, Inc., which has owned Permits 3966-2 and 3967-2 since 1968 or earlier, transferred them to Peterson Outdoor Advertising Corp. ("Peterson"). On July 10, 1987, Gator Outdoor Advertising, Inc. ("Gator") applied to DOT for sign permits. The location for which Gator sought sign permits is on the same side of U.S. 441, approximately 348 feet from the location authorized by Permits 3966-2 and 3967-2. On July 16, 1987, DOT rejected Gator's application solely because the proposed sign location did not meet applicable spacing requirements relative to the sign authorized by Permits 3966-2 and 3967-2. In 1984, the owner withdrew his permission for maintaining the sign authorized by Permits 3966-2 and 3967-2. There has been no sign lease or owner permission for a sign at this location since 1984. As of the date of the final hearing, Peterson had not obtained the owner's permission to maintain a sign. Representatives of the property owner and a representative of Peterson have discussed the possibility of owner permission, but it had not been unequivocally granted.
Findings Of Fact The sign which is the subject of this proceeding is the north-facing sign of back-to-back signs owned by the Respondent, located on the west side of Interstate 95, approximately 0.95 miles south of State Road 84, outside the city limits of Fort Lauderdale, in Broward County, Florida. On June 30, 1977, the Respondent entered into a land lease for the site where it proposed to erect an outdoor advertising sign. Thereafter, on July 14, 1977, the Respondent applied for a permit to erect a south-facing sign on the leased property. This application was approved by the Department on July 26, 1977, and the south-facing sign was erected. This sign is not involved in this proceeding. Subsequently, on December 5, 1977, the Respondent filed an application to permit a north-facing sign on the same leased site where its south-facing sign had been erected, the sign to become a back-to-back structure. After a field inspection of the site, the Department approved the Respondent's application, and on February 1, 1978, it issued a permit for the north-facing sign back-to-back with the sign which had been permitted in July of 1977. The north-face sign was constructed and in place by the end of February, 1978, and it is the north face of this sign that is the subject of this proceeding. Subsequent to the construction of the north face of the subject sign, title to the land on which the structure was erected changed hands, and in April of 1979 the Respondent entered into another land lease with the new property owner. This lease runs for a period of ten years from April, 1979, and rental payments are due from the Respondent for the entire term of this lease. Back in the year 1974, the Department had issued to Tropical Acres Steakhouse a permit to erect a sign on Ravenswood Road, west of Interstate 95, approximately 750 feet north of the site where the Respondent's sign was erected. This Tropical Acres sign was permitted as a north-facing sign and was erected. However, it faces more eastward than to the north, its face being angled slightly northward to within a few degrees from due east. Ravenswood Road at the site which is involved in this proceeding runs approximately north and south, and is approximately parallel with Interstate 95. The Tropical Acres sign is on the east side of Ravenswood Road, its face almost perpendicular to Ravenswood Road. The location of this sign is west of the railroad tracks which are also west of and parallel with Interstate 95. The application filed by the Respondent for its north face shows that the site is 1,100 feet from the nearest existing sign. The Respondent's application for the south-facing sign also showed the distance from the nearest existing sign to be 1,100 feet. The Tropical Acres sign is approximately 750 feet from the Respondent's sign, but on Ravenswood Road west of Interstate 95 and not on Interstate 95 because the railroad tracks intervene. Its copy cannot be clearly seen from Ravenswood Road, but the copy is clearly visible from Interstate 95 by traffic traveling south. The permit for this sign has been renewed each year since 1974, and is valid now. On January 15, 1982, the Department served its notice of violation on the Respondent, contending that the north face of its sign at the subject location is illegal because it violates the spacing requirements of Section 14- 10.06, Florida Administrative Code. No violation notice was issued for the south face of this sign.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the notice of violation issued by the Department, alleging that the Respondent's north-facing sign on the west side of Interstate 95 at a point approximately 0.95 mile south of State Road 84, in Broward County, Florida, be DISMISSED. THIS RECOMMENDED ORDER ENTERED this 27 day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M.S.58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Petitioner's application for two state sign permits to place a two-sided outdoor advertising sign on the east side of State Road 291 in Escambia County, Florida should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bill Salter Advertising, Inc., is an outdoor sign company located in Milton, Florida. Respondent, Department of Transportation (DOT), is the state agency charged with the responsibility of regulating outdoor advertising signs. On May 16, 1997, Petitioner filed an application with DOT seeking two permits to place a two-sided outdoor advertising sign on the east side of State Road 291, 0.3 miles south of State Road 290 in the unincorporated portion of Escambia County, Florida. The proposed location is less than 500 feet north of Interstate 10, a federal interstate roadway with a restricted interchange. On May 30, 1997, DOT issued its Notice of Denied Application in which it denied the application on the ground the proposed sign site was within 500 feet of a restricted interchange or intersection at grade and thus violated an agency rule. The receipt of this notice prompted Petitioner to initiate this proceeding. The proposed sign will be located on the property of a Chevron gasoline station, which is located on the eastern side of State Road 291. Although the sign will be located on State Road 291, and it is intended to be visible to persons using that roadway, its message is also visible to persons using Interstate 10. Rule 14-10.006(1)(b)5., Florida Administrative Code, prohibits outdoor advertising signs which are located within the restricted area of an interstate ramp in the unincorporated area of a county. A restricted area is defined as being within 500 feet of an interchange. In this case, the proposed sign location is only 320 feet from the on and off ramp for Interstate 10 within the unincorporated area of Escambia County. Therefore, the proposed location lies within a restricted area and is prohibited by the rule. To be permittable, Petitioner would have to move its proposed sign location several hundred feet to the east or west. At hearing, Petitioner contended that two other signs have been erected nearby on State Road 291 and have not been cited by DOT as being in violation of the rule. For the sake of fairness, it contends that its application should be approved. The first sign is an on-premise sign for Chuck E Cheese's located on property owned by the University Mall. On-premise signs, however, are regulated by the county and not the state, and therefore DOT has no jurisdiction over the sign. The second sign, one advertising Montana Bar-B-Que and Seafood Buffet, cannot violate the interstate ramp rule because it is located on the west side of the roadway; the entrance and exit ramps for the Interstate 10 interchange are all located on the east side of the roadway. Petitioner also contended that its message is intended to be seen by persons using State Road 291, and not those using Interstate 10. However, DOT has consistently interpreted its rule as prohibiting all signs outside incorporated towns and cities, which are located within the restricted area of an interstate ramp, even though the sign facings are not meant to be read from the interstate. This interpretation of the rule was not shown to be clearly erroneous, and it is hereby accepted.
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 Petitioner's application for two state sign permits to place a two-sided sign on the east side of State Road 291 in Escambia County, Florida. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this day 6th of March, 1998. COPIES FURNISHED: Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-00458 Robert Griffin Bill Salter Advertising, Inc. Post Office Box 761 Milton, Florida 32572 Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
