The Issue The issue for consideration in this matter is whether the Respondent's sign, as described in the Notice of Hearing and in the violation issued herein, was in conformity with the Department requirements, as well as whether the Department is liable for damage to the sign caused by it's removal.
Findings Of Fact At all times pertinent to the matters in issue herein, the Petitioner, Department of Transportation, was the state agency responsible for regulating the erection and use of advertising signs adjacent to state right-of-way highways in this state. The Respondent, Horseshoe Cove Resort, Inc., was a commercial enterprise and the owner of the sign in question. On August 31, 1989, in the course of his duties as an inspector in the Department's outdoor advertising division, Joseph V. Hanrahan saw the Respondent's sign, which was erected adjacent to and within 1,000 feet of another, permitted, sign, located approximately 25 feet west of 60th Street East, on the northbound side of State Road 70 in Manatee County, Florida. State Road 70 is a primary highway, and the sign, a 1 x 3 foot electrified sign, located on a pole approximately 20 feet above the ground, was visible from the road. This sign was required to be permitted because it is an "off site" sign, ( a sign situated away from the advertised enterprise ). The sign appeared to be in violation of Section 479.07(1), Florida Statutes, and Mr. Hanrahan issued violation No. 1-13-30, which noted that the sign was not properly permitted, and which instructed the owner to remove it within 30 days of the date of the notice of violation. The sign had been erected by Magee Sign Service which was paid by the Respondent to construct and erect it. A county permit had been issued for the sign, but no state sign permit had been obtained. The notice of violation issued by Mr. Hanrahan was mailed to the Respondent and was received by it on September 5, 1989. The sign was not removed within 30 days. Therefore, on June 19, 1990, a contractor, working for the Department, cut the sign down, and by letter dated that same day, the Department advised Respondent the sign had been removed persuant to the violation. It also advised Respondent that under the provisions of Section 479.105, Florida Statutes, Horseshoe Cove was being charged $50.00 as the cost of removal. After the sign was removed, Mr. Williams, Respondent's manager, called Mr. Dunsford, the Department's District Manager, regarding the removal, and in response to that call, Mr. Dunsford advised Mr. Williams in writing how to request a hearing. The violation notice sent to Respondent in August, 1989, states that the owner of the sign had 30 days to remove it. Even though the statute in effect at that time provided for the cost of removal to be borne by the owner, the form did not so state. In early 1990, the form was amended to include a notice regarding cost of removal. In this case, the only notice submitted to Respondent by the Department prior to the sign being removed was the violation notice. According to Mr. Williams, shortly after he received the violation notice in August, 1989, in September, 1989 he wrote to the Department advising them he believed the sign was a part of the contiguous permitted sign. Along with that letter, Mr. Williams enclosed $50.00 to show a good faith effort to correct the problem. This $50.00 was subsequently returned by the Department. Upon the advice of Mr. Hanrahan, Williams contacted Magee Sign Service to see if a bracket could be fashioned to affix the offending sign to the adjacent billboard. Magee advised him that county regulations prohibited that. This is true. Williams then called Mr. Hanrahan to see if he would contact Mr. Prettyman, an official in the county planning office who permitted signs, to see if some arrangement could be made to preserve the sign, but in the interim, it was removed by the Department. All during this time, Mr. Williams was a member of the County Planning Commission and saw Prettyman at most meetings. He did not ever discuss the sign problem with him, however, claiming the meetings "offered little or no time for other business." A post - meeting discussion, or contacts at other times, were not addressed. Hanrahan admits to being asked by Williams to speak with Prettyman and claims he did so. He also claims that Prettyman declined to issue the required permit. Hanrahan cannot recall whether he advised Williams of this or not, but it appears he did not. Williams claims he expected to hear back from Hanrahan on the matter, and now claims that had Hanrahan told him timely of Prettyman's refusal, he would have removed the sign then without destroying it. He also claims not to have known the state would hire a contractor to remove it or that there would be a cost involved. The cost is provided for by statute, however. His claims of lack of knowledge are not impressive and do not justify Respondent's inaction. Notwithstanding that the contractor is required to remove the sign below ground surface, to fill the hole remaining, and to clean the area, according to Mr. Williams, the metal support pole was cut 1 1/2 inches above the ground and the internal electrical wires were cut at the junction box leaving live electrical wires open. When Mr. Williams saw the pole stub, he did not notify the Department but instead, had his own maintenance people correct the problem. Even after the notice of violation, Respondent, though trying to arrange for the sign to be made "legal" at no time applied for a state permit for the offending sign. Williams claims that Magee did apply for a permit but was denied, but no independent evidence to that effect was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered approving the removal of the offending sign in question, assessing a $50.00 fee against Respondent for removal costs, and denying Respondent reimbursement for the cost of the destroyed sign. RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1991. Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 E. H. Williams Horseshoe Cove Resort, Inc. 5100 69th Street East Bradenton, Florida 34203 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0468 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether a sign owned by Henderson Sign Company located approximately one- tenth of a mile east of the junction of State Road 73 and U.S. 90 containing as old copy "Key Drug Center" and new copy "Best Western Motor Inn" is in violation of the permit (Section 479.07(1) and (6), F.S.), spacing (Sections 479.02 and 479.111(2), F.S.), and setback (Section 479.11(1),F.S.) requirements.
Findings Of Fact The respondent owns and maintains an outdoor advertising structure adjacent to U.S. Highway 90 approximately one-tenth mile east of its intersection with State Road No. 73 within the corporate limits of the City of Marianna. This structure is a double billboard, with one advertisement for "Key Drug Center," erected in August of 1974, and the other for "Best Western Motor Inn" erected in April of 1976. It is located approximately five (5) feet from the edge of the sidewalk approximately 10 to 15 feet from the edge of the north side of Highway 90. At the time of the Respondent's erection of the first sign, he obtained a permit from the City of Marianna but not from Petitioner Department of Transportation. Before erection of the second sign, in 1976, the Respondent submitted an application to the Petitioner, but the application was denied. There is no other outdoor advertising structure bearing a properly issued permit from the Petitioner in existence within 500 feet from the Respondent's advertising structure although there is a non-permitted sign within 120 feet facing in the same direction. Petitioner has entered into evidence a copy of the zoning ordinance of Marianna, Florida. Petitioner contends: that the signs of Respondent violate the set-back, space and permit section of Chapter 479, Florida Statutes, and of The Governor's Agreement of 1972. Respondent contends: that the Petitioner has not proved where the edge of the right-of-way of Federal Highway 90 is located, that the other sign, if any, is not a lawful sign, having no permit, so the spacing violation, if any, is not enforceable and that the requirement of Chapter 479, Florida Statutes, does not apply to incorporated cities.
Recommendation Remove subject signs for violation of the 660 foot setback requirements of a federal aid highway, Section 479.11(1), and the spacing requirements of the Governor's Agreement of January 27, 1972. The zoning ordinance of Marianna, Florida does not show that there is effective control of outdoor advertising by the City of Marianna. DONE and ORDERED this 13th day of January, 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: George L. Waas, Esquire Office of Legal Operations Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida 32304 Richard Wayne Grant, Esquire 209 North Jefferson Street Marianna, Florida 32446 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Henderson Sign Service Post Office Box 887 Marianna, Florida Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, 1-10, was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact The subject sign is located 0.6 mile west of State Read 69 on the north side of 1-10. This sign was inspected on October 3, 1978, by an inspector of the Department of Transportation, who observed that the sign's massage was visible from the main traveled way of 1-10 and did not bear the permit required by Chapter 479, Florida Statutes. At the time of the inspection, 1-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The sign was located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See file, Case No. 81-099T. The foregoing facts establish that the subject sign is a sign regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the sign. Henderson Signs presented the testimony of Gene Henderson regarding when the poles for the sign were erected. Henderson stated that the poles for the subject sign were erected sometime in 1975; and from March 10, 1978, until August 10, 1978, bore two sign faces advertising Arrowhead Camp Grounds and Best Western [Motel]; and from August 10, 1978, to present signs advertising Arrowhead and Holiday Inn. W. B. Reddock, the owner of Arrowhead, stated the sign was erected in the latter part of 1975, or early part of 1976. 1-10 was not open to public traffic at the time the poles were installed. The Department introduced an aerial photograph (DOT Exhibit 4) of the area 0.6 mile west of SR 69 taken on December 10, 1975. This photograph bears the number PD 1822 and has a scale of one inch to equal 50 feet. The location of the sign was measured by the Department's engineer, who indicated by a red mark the location of the sign on 1-10, 0.6 mile west of SR 69 and established that the scale of 1:50 was accurate. The photograph was examined by the Department's engineer, who did not observe the presence of poles or an outdoor advertising sign at the location. The Department introduced DOT Exhibit 3, which was an extract of information maintained by the Department district office concerning when portions of 1-10 in Jackson County were opened to public travel. DOT Exhibit 3 reveals that the portion of 1-10, 0.6 mile west of SR 69 was completed on February 18, 1976, and opened to the public on October 14, 1977. From the evidence presented, it is clear that the sign was not present on December 10, 1975, when the aerial photograph, DOT Exhibit 4, was taken. It is possible that the sign was erected between December 10, 1975, and October 14, 1977, the date this highway was opened to the public. Construction during this period would not be contrary to the testimony of Reddock or Henderson. Based upon Henderson's testimony, no advertising message was put on the sign until August 10, 1978, after the highway was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within 30 days and without compensation to the sign owner(s). DONE and ORDERED this 16th day of September, 1981, 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 16th day of September, 1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
The Issue The issue is whether a billboard structure is in compliance with Chapter 479, Florida Statutes.
Findings Of Fact The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the nearest edge of the State Highway System, interstate, or Federal-Aid Primary system in accordance with Chapter 479, Florida Statutes. Lamar is in the business of providing outdoor signs for entities wishing to advertise. Lamar owns the sign at the northeast corner of the intersection of Betton Road and Thomasville Road in Tallahassee, Leon County, Florida. The sign was built in 1980 and rebuilt in June 1997. The sign has two sides. One side faces Betton Road, and is visible only to persons on Betton Road. The Department does not assert that a permit is required for that side. The other side of the sign, facing to the west, is within 660 feet of Thomasville Road, which is also referred to as State Route 61, and is visible from Thomasville Road. In 1974, State Route 61 was known as U. S. Highway 319. It was a Federal-Aid Primary route. On June 24, 1974, a road denominated Capital Circle located on the outskirts of Tallahassee, was designated U.S. Highway 319. Thomasville Road although no longer a part of U.S. Highway 319, continued to bear the name State Route 61 and remained a Federal-Aid Primary route. In 1983 the Federal Highway Administration listed both Capital Circle and State Route 61 as Federal-Aid Primary routes. In 1991, the Federal Highway Administration created the National Highway System and ceased using Federal-Aid Primary designations. State Route 61, also known as Thomasville Road, nevertheless remained a Federal-Aid Primary road for outdoor advertising classification purposes at all times pertinent to this case. For federal highway identification purposes, the road is currently in the Surface Transportation Program. Prior to May 23, 1996, Lamar held an outdoor advertising permit pursuant to Section 479.07, Florida Statutes, for this sign. The sign was assigned tag number BG 518-35. On May 23, 1996, the Department issued a "Notice of Violation--Signs for Which Permits Have Been Issued," addressing permit number BG 518-35. This notice indicates that it was sent to Lamar via registered mail, return receipt requested. It informed that the sign was in violation of Chapter 479, Florida Statutes, or Florida Administrative Code Chapter 14-10 because the sign: "May not be maintained without permission of the person lawfully controlling site (479.11(9), FS)." On July 31, 1996, in a letter signed by District Outdoor Advertising Manager Vicki L. Davis, the Department notified Lamar that, because the Department had received a statement of loss of landowner's permission for the sign bearing tag number BG 518-35, Lamar was required to remove the sign. The Department included a "certificate of cancellation" with the letter. Lamar admits that it voluntarily canceled its permit for the sign in August 1997. Subsequently, the sign remained with its permit tag attached, unmolested by the Department for approximately 11 years. In January 1997, Lamar acquired a separate monopole structure bearing two signs with tag numbers BN 504 and BN 505. These signs are less than 200 feet to the north of the subject sign. During a 2007 inspection, an agent for the Department observed the subject sign. It still bore tag number BG 518-35. On March 14, 2007, the Department issued the "Notice of Violation-Illegally Erected Sign" addressed above. As noted before, the violation was based on the sign's having no permit.
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 sign is a public or private nuisance and requiring that it be removed as provided in Subsection 479.105(1)(a), Florida Statutes, and dismissing case number 08-1137. DONE AND ENTERED this 16th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of July, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 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 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On or about July 6, 1979, the Department issued permits numbered 11229- 10, 11230-10 and 11231-10 to the Respondent, Food 'N' Fun, Inc., authorizing the erection of a stacked back- to back sign on the south side of I-10, 1.7 miles east of SR 69, in Jackson County, Florida. Permits numbered 11267-10, 11268-10 and 11269-10 were issued on or around July 24, 1979, authorizing the erection of a stacked back-to-back sign on the south side of I 10, 1.55 miles east of SR 69, in Jackson County, Florida. Prior to the issuance of these permits the sites were field inspected and approved by Department personnel. Subsequently, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the signs. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject sign permits were being revoked because the signs were not erected in a zoned or unzoned commercial area. The Respondent's representative who submitted the permit applications designated on these applications that the sign locations were in an unzoned area within 800 feet of a business. This representative also certified on the applications that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Prior to conducting his field inspection, the Department's inspector had been informed by the applicant that a commercial activity (welding) was being conducted in a metal building within 800 feet of each of the sign locations. When he made his inspection he found a house on the south side of I- 10, a tin building in the rear, a field, and 2 or 3 other houses on the access road. When he inquired at the house, he was told that a business was located there, and he was shown either a tax certificate or tax number. At the time of the inspection no business activity was seen, nor has any been seen by Department personnel at this location at any subsequent time. Numerous unsuccessful attempts were made to again contact the owner of the business in an effort to establish whether or not any business actually existed at this location. The area where the subject signs are located is agricultural and rural in nature. Although the tin building in which the welding business is supposed to be located is visible from the interstate, the Respondent agrees that as viewed from the main-traveled way of I-10 there is nothing to indicate that any commercial activity is being conducted at this location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers 11269-10, 11267-10, 11268 10, 11231-10, 11229-10, and 11230-10 held by the Respondent, Food 'N' Fun, Inc., authorizing two stacked, back-to-back signs located on the south side of I-10, 1.55 miles and 1.7 miles east of SR 69 in Jackson County, Florida, be revoked, and the subject signs removed. THIS RECOMMENDED ORDER entered this 9th day of August, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985.
Findings Of Fact Based on the evidence received at the February 8, 1989 hearing, the undersigned makes the following findings of fact: On March 15, 1987, Patricia A. Nelson and her husband, Robert Nelson, erected a two-faced sign on the southeast corner of the intersection of U.S. 98 and County Road 700A in the unincorporated area of Okeechobee County. The sign was placed next to other non-official signs that were already standing on the corner. The Nelsons' sign measured four feet by six feet and cost the Nelsons $400.00 to construct. It advertised on both facings the County 700A Country Store and Patricia's Restaurant and indicated that these establishments were four miles to the east. In early 1988, the Nelsons learned that their sign was located on the right-of-way of U.S. 98, which is part of the federal-aid primary highway system. They therefore moved the sign back two feet, off the right-of-way and on adjacent property which was zoned for agricultural use. The sign, however, was still visible from, and could be read by motorists with normal eyesight travelling both northbound and southbound on, U.S. 98. Richard Hayford has been an Outdoor Advertising Inspector for the Department of Transportation for approximately the past year. His immediate supervisor during this time has been James Dunsford, the Department's District I Outdoor Advertising Administrator. Among Hayford's responsibilities in his capacity as an inspector is to travel the federal-aid primary highways in District I, including those in Okeechobee County, and to look for violations of the state outdoor advertising law. Hayford was performing these duties on May 4, 1988, when he noticed the Nelsons' sign while driving on U.S. 98. Upon a closer inspection of the sign, he observed that it did not have a Department-issued permit tag affixed to it. He therefore determined that the sign was in violation of Chapter 479, Florida Statutes, and posted a notice on the sign indicating that the sign was illegal and had to be removed within thirty days. Hayford did the same with respect to two of the other signs on the corner. Such a notice, however, was not posted on the remaining sign on the corner, which was the largest of the four and gave information about the New Covenant Christian Outreach. Later that same day, May 4, 1988, a Notice to Show Cause was sent to the Nelsons by certified mail. The notice advised the Nelsons that their sign violated Section 479.105(1)(a), Florida Statutes, and that they had to either comply with this statutory provision or request a hearing on the alleged violation within 30 days. The following warning was given to the Nelsons in the notice: In either case if you fail to comply within the thirty (30) day period above, then the described violation(s) shall be considered true and the Department of Transportation reserves the right to take such action as the law permits including, but not limited to, the removal of the sign without further notice. The Nelsons neither removed the sign, nor obtained a permit from the Department to maintain it at its location adjacent to U.S. 98, within the 30-day period prescribed in the Notice to Show Cause. The Department therefore had the sign removed. There was no evidence presented at hearing regarding the cost, if any, of the sign's removal. Although the Nelsons attempted to obtain a form to apply for a permit for their sign shortly after learning of Hayford's allegation concerning the sign's legality, they first applied for such a permit only after the sign had been removed. The application was denied. Among the reasons given for the denial was that the sign would be located on property zoned for agricultural use. During the application process, the Nelsons spoke with District I Outdoor Advertising Administrator James Dunsford on the telephone. Dunsford apprised them during their telephone conversations that they would not be allowed to re- erect their sign at its previous location. By letter dated July 26, 1988, the Nelsons requested a hearing on the issue of whether their sign was in violation of Section 479.105(1)(a), Florida Statutes. They have never sought a hearing on, or otherwise formally challenged, the denial of their application for a permit. Of the signs that stood on the southeast corner of the intersection of U.S. 98 and County Road 700A on March 15, 1987, when the Nelsons erected their sign, only the New Covenant Christian Outreach sign still remains.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding that the Nelsons' sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that it was properly removed in accordance with the provisions of Section 479.105, Florida Statutes. Petitioner, however, should not assess any removal costs against the Nelsons. DONE and ENTERED this 21st day of March, 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Administrative Hearings this 21st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4045T The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Department's Proposed Findings of Fact: Accepted and incorporated in this Recommended Order; Accepted and incorporated, except to the extent that it states that the notice was given on May 14, 1988. The preponderance of the evidence reflects that such notice was given on May 4, 1988; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated. The Nelsons' Proposed Findings of Fact: Paragraph 1, second and third sentences, to the extent that it suggests that the Nelsons spoke with Dunsford on the telephone. Accepted and incorporated. Paragraph 1, fourth sentence, to the extent that it reflects that Dunsford told the Nelsons that they would be unable to re-erect their sign at its previous location. Accepted and incorporated. Paragraph 2, first sentence, to the extent that it asserts that "there are hundreds of signs on agricultural land." Rejected as irrelevant and immaterial. The Nelsons were cited with a violation of Section 479.105(1)(a), Florida Statutes, and their sign was removed, because they had not obtained a permit for the sign, not because the sign was located on land zoned for agricultural purposes. The Nelsons subsequently attempted to obtain a permit and their application was denied, in part, because the sign would be located on agriculturally zoned property; however, the denial of that application was never formally challenged by the Nelsons and it is not an issue in the instant case. Paragraph 2, first sentence, to the extent that it states that the Department's attorney knew "that violating [the Nelsons'] sign was not right." Rejected as irrelevant and immaterial. Paragraph 2, second sentence, to the extent that it addresses the motive of the Department's attorney in objecting to the admissibility of certain exhibits proffered by the Nelsons. Rejected as irrelevant and immaterial. Paragraph 3, first and second sentences, to the extent that they allege that the Nelsons have been discriminated against as evidenced by the fact that there are "many, many others with signs on agricultur[al] land." Rejected as irrelevant and immaterial. COPIES FURNISHED: Charles Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert and Patricia A. Nelson 22302 Northwest 176th Avenue Okeechobee, Florida 34972 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact Henderson Signs is a partnership which was initially owned and operated by Ladon Henderson and his wife, Margie Henderson. When Ladon Henderson became inactive, his son, Gene Henderson, became a partner and he now operates the business with Margie Henderson. Henderson Signs has been licensed by the Department of Transportation to engage in the outdoor advertising business since before the year 1976. This license was renewed annually as required, and Henderson Signs now holds Outdoor Advertising License Number 20157 reissued on November 16, 1982. Henderson Signs has operated in Washington, Gadsden and Jackson Counties, but in July of 1981 this business was sold to Tri-State Systems, Inc., and pursuant to the terms of this sale Henderson Signs may not now engage in the outdoor advertising business in these three counties. It may, however, operate elsewhere. Between the years 1978 and 1981 Henderson Signs has received 17 notices of violations from the Department of Transportation charging that signs at 20 locations on Interstate 10 in Jackson County were erected illegally. This resulted in the opening of 22 dockets in the Division of Administrative Hearings to litigate administratively the charges against Henderson Signs. In 14 of these dockets the findings and conclusions resulted in a determination that Henderson was guilty as charged. Some of these guilty findings were appealed to the District Court of Appeals, where they were affirmed on the merits. Some were affirmed by per curiam opinions. Ten other cases have been docketed in this Division involving signs now owned by Tri-State Systems, Inc., pursuant to the sale by Henderson Signs. (This data has been taken from exhibits 1 and 2 offered by the Department.) This evidence demonstrates that the Respondent has repeatedly erected outdoor advertising signs along Inter-state 10 in Jackson County which were found to be illegal signs because of spacing violations, zoning violations, or lack of the required permit authorizing their erection. The legal position of Henderson Signs in many of the cases where administrative hearings were requested subsequent to the service of Notices of Violations, was that no state permits were necessary for varying reasons, one of which was that Interstate 10 had not become a part of the United States Interstate Highway System because it had not been opened to the public. Findings of not guilty were made in one Division of Administrative Hearings docket involving three sign violations, because of a failure of the evidence to prove that Interstate 10 was open to the public. (Data taken from exhibit 2 offered by the Department). The Administrative Procedure Act, Chapter 120, Florida Statutes, affords parties whose substantial interests are affected by actions of Administrative Agencies the right to a hearing to resolve disputed issues. Henderson Signs utilized the provisions of this Act. When the disputes were resolved against the contentions of Henderson Signs, by agency order or by the Court after appeal, it removed the signs that were the subject of these proceedings. The Department of Transportation has never had to remove a Henderson sign for failure of the Respondent to comply with a final order determining it to be illegal. The Respondent contends that a genuine issue existed regarding the necessity of securing a permit prior to the erection of a sign along the site of Interstate 10 in Jackson County, until the time it became a part of the Federal Interstate Highway System by being opened for public traffic. There is no evidence from which a finding of fact can be made as to precisely when Interstate 10 in Jackson County was opened and in use by the public. The formal ceremony opening Interstate 10 was held in November of 1978. During the time between the erection of a sign by the Respondent and the order that it be removed after a determination that it was illegal, Henderson Signs received rental payments from the sign advertiser. Subsequent to July of 1981, when the Respondent sold its sign business in Jackson County, there have not been any notices of violation issued to Henderson Signs by the Department of Transportation.
Recommendation From the foregoing, Findings of Fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Henderson Signs be dismissed. THIS RECOMMENDED ORDER entered on this 21 day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building; M.S . 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On August 19, 1976, Petitioner's Outdoor Advertising Inspector inspected Respondent's signs located at 1038 N.W. 36th Street, Miami, Florida. The location is within the city limits of Miami. Northwest 36th Street is also U.S. Highway 27. Two signs of the Respondent each 6' by 12' facing east, one above the other, had been erected at the above location. A distance of approximately 135' separated Respondent's sign from the nearest other sign facing the same direction on that side of the highway. (Testimony of Conde, Stipulation, Exhibit 1) Respondent had applied for a permit for the signs on January 12, 1976, but the application was denied by Petitioner because they did not meet the spacing requirements of Section 479.111, F.S. (Testimony of Conde) Petitioner issued a Notice of alleged violations of Sections 479.07(1) and 479.111(2), Florida Statutes with respect to Respondent's above described signs on August 23, 1976.
Recommendation That Respondent's alleged violation of Section 479.07(1), F.S. be dismissed. That Respondent's sign located at 1038 N.W. 36th Street, Miami, Florida, be removed under the authority of Section 479.17, Florida Statutes, as not permitted under Section 479.111(2), F.S. DONE and ENTERED this 23rd day of November, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. O.E. Black, Administrator Outdoor Advertising Section Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Jeffries H. Duval, Esquire Office of General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Robert Korner, Esquire 4790 Tamiami Trail Coral Gables, Florida 33134
The Issue Whether Florida Administrative Code Rule 14-10.007(6)(b), which provides for revocation of outdoor advertising permits for nonconforming signs that are abandoned or discontinued, is an "invalid exercise of delegated legislative authority" as alleged by Petitioners.
Findings Of Fact The Department of Transportation is the state agency responsible for administering and enforcing the outdoor advertising program in accordance with chapter 479, Florida Statutes. The Department adopted Florida Administrative Code Chapter 14-10, which provides for the permitting and control of outdoor advertising signs visible to and within controlled areas of interstates and federal-aid highways. Rule 14-10.007 provides regulations for nonconforming signs. Section 479.01(17), Florida Statutes, defines nonconforming signs as signs that were lawfully erected but which do not comply with later enacted laws, regulations, or ordinances on the land use, setback, size, spacing and lighting provisions of state or local law, or fail to comply with current regulations due to changed conditions. Rule 14-10.007 provides in part that: (6) A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. "Destroyed," "abandoned," and "discontinued" have the following meanings: * * * (b) A nonconforming sign is "abandoned" or "discontinued" when a sign structure no longer exists at the permitted location or the sign owner fails to operate and maintain the sign, for a period of 12 months or longer. Signs displaying bona fide public interest messages are not "abandoned" or "discontinued" within the meaning of this section. The following conditions shall be considered failure to operate and maintain the sign: Signs displaying only an "available for lease" or similar message, Signs displaying advertising for a product or service which is no longer available, Signs which are blank or do not identify a particular product, service, or facility. Carter is licensed to engage in the business of outdoor advertising in Florida and holds an outdoor advertising permit for a nonconforming outdoor advertising sign bearing Tag No. AS 228. The outdoor advertising sign for the referenced tag number is located in Lee County, Florida ("Carter Sign"). On February 22, 2010, the Department issued a Notice of Intent to Revoke Sign Permit to Carter for sign bearing Tag No. AS 228. The notice advises that "this nonconforming sign has not displayed advertising copy for 12 months or more, and is deemed abandoned, pursuant to s. 14-10.007(6)(b), Florida Administrative Code." Petitioner Nissi is licensed to engage in the business of outdoor advertising in Florida and holds outdoor advertising signs bearing Tag Nos. BK 731 and BK 732, which signs are located in Pasco County, and BN 604, BN 605, AR 261, AR 262, AT 485 and AT 486, which signs are located in Hernando County ("Nissi Signs"). In June and July 2013, the Department issued notices of intent to revoke sign permits, pursuant to rule 14-10.007(6)(b), based on the signs not displaying advertising for 12 months or longer. The notice issued to Nissi advised that the Department deemed the signs as having been abandoned. Carter and Nissi, as owners of nonconforming signs receiving violations under rule 14-10.007(6)(b), have standing and timely challenged the rule in dispute herein.
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
