The Issue The issue in this case is whether Petitioner Lamar Advertising Company-Lakeland (Lamar) rebuilt a billboard that it owns on the Florida Turnpike in violation of the law that limits the rebuilding of nonconforming signs.
Findings Of Fact Lamar is the owner of a billboard which displays outdoor advertising and is located on the Florida Turnpike near State Road 91 in Martin County. It is a "back-to-back" billboard with both north-facing and south-facing advertising. The advertising is permitted by DOT Outdoor Advertising Sign Permits 13882 and 13883, and the billboard bears tag numbers CC087 and CC088. The billboard was first built in 1972 and was acquired by Lamar in 1998. The billboard is 549 feet from the nearest sign to the south and 570 feet from the nearest sign to the north. When the sign was built, there were no minimum spacing requirements applicable to signs on the Florida Turnpike, which was classified by DOT as a secondary roadway. Before 1984, the minimum spacing requirement for "federal-aid primary highways" (primary roadways) was 500 feet. In 1984, Subsection 479.07(9), Florida Statutes, was amended to require a minimum spacing between signs on primary roadways of 1,000 feet. Subsection 479.07(9), Florida Statutes (1984), included a provision that not only grandfathered existing signs on primary roadways that were less than 1,000 feet from other signs, but went further to state that such signs, if conforming before the spacing requirement was changed, would not be construed thereafter as nonconforming. The significance of this provision is that signs on primary roadways that were more than 500 feet, but less than 1,000 feet from other signs in 1984, are not subject to Florida Administrative Code Rule 14-10.007(2), which limits the rebuilding of damaged nonconforming signs. In November 1995, the Florida Turnpike was added to the National Highway System. Thereafter, DOT treated the Florida Turnpike as a primary roadway. The reclassification of the Florida Turnpike from a secondary roadway to a primary roadway was not accomplished through a statute or DOT rule. DOT interprets the grandfathering provision in Subsection 479.07(9), Florida Statutes, to apply only to signs that were on primary roadways in 1984 when the 1,000-foot spacing requirement was established. Because the Florida Turnpike was not a primary roadway in 1984, DOT contends that signs on the Florida Turnpike less than 1,000 feet from other signs are nonconforming signs and are subject to the rebuilding limitations in Florida Administrative Code Rule 14-10.007(2). Hurricane Wilma struck Florida in October 2005. Mark Johnson, DOT's outdoor advertising inspector for the area that includes Martin County, testified that in late October or early November 2005, he saw that Lamar's billboard had been seriously damaged. He testified that he saw "everything down" and "poles splintered." He took photographs and made notes about his inspection of the damage. Mr. Johnson said he sent the photographs and notes from his October 2005 inspection to DOT headquarters in Tallahassee. Without explanation, they were not offered into evidence at the final hearing. Mr. Johnson testified that on December 7, 2007, he saw that the billboard was rebuilt. He inspected the billboard on that date, and he believes that the six poles that support the billboard are new poles. He saw and photographed old sign materials, including at least one pole, on the ground next to the billboard. It cannot be determined from the photograph whether the pole on the ground is splintered. Lamar denies that the billboard was destroyed and then reconstructed between October and December 2005. It presented the testimony of its real estate/leasing manager, David Henry, who stated that the billboard was not destroyed by the hurricane, and none of its six support poles were replaced. Mr. Henry showed that none of the leasing or maintenance records of Lamar indicate that the billboard was rebuilt. Neither party seemed to recognize the significance to this dispute of photographs of the billboard taken in August and November 2005. Petitioner's Exhibit 3I is a September 2, 2005, letter from DOT to Lamar, informing Lamar that the billboard had been without advertising for 10 months and was about to be deemed abandoned. One of the photographs attached to the letter and admitted into evidence as Petitioner's Exhibit 3J was taken on August 31, 2005, two months before Mr. Johnson's first inspection. Petitioner's Exhibit 2, which is some general information about Lamar's sign permits that is accessible from DOT's internet website, includes photographs of the billboard taken on November 19, 2005, just after Mr. Johnson's first inspection. To reconcile Mr. Johnson's testimony with the November 19, 2005, photographs, it would be necessary to find that the photographs depict the billboard very soon after it was rebuilt. However, there are no discernible changes in the main structural elements of the billboard as they appear in the November 2005 photographs from how they appear in the August 2005 photographs. The November photographs do not appear to show a billboard that was just constructed. The old sign materials on the ground that appear in photographs taken by Mr. Johnson on December 7, 2005, would not have been visible to him in October 2005 because of the dense vegetation around the billboard that existed in October 2005. Lamar removed much of that vegetation before Mr. Johnson's December 2005 inspection.1/ The old sign materials could have been there long before October 2005. Lamar removed the advertising sign facings from the billboard when Hurricane Wilma was approaching to avoid damage to the sign facings and billboard and replaced the sign facings before Mr. Johnson's December 2005 inspection. Mr. Johnson appeared to be a credible witness, but he might have been confused by Lamar's temporary removal of the sign facings from the billboard and the clearing of vegetation that exposed old sign materials on the ground next to the billboard. On this record and without Mr. Johnson's October 2005 photographs that purport to show Lamar's billboard to be substantially destroyed, DOT failed to prove that more than 50 percent of the structural materials in the billboard was replaced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order rescinding its Notice of Intent to Revoke Sign Permit regarding Outdoor Advertising Sign Permits 13882 and 13883. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 8th day of June, 2007.
Findings Of Fact The facts here involved are not in dispute. In 1966 Petitioner leased the property adjacent to Cypress Street in Tampa and erected a structure thereon on the 1-275 3.6 miles west of 1-4, containing signs facing both east and west. By application dated 20 October 1977 (Exhibits 1 and 2) Petitioner applied for permits for these signs. The applications were disapproved because of spacing. Likewise, on 20 October 1977, Petitioner submitted application for a permit for a sign on the 1-4 2.9 miles east of U.S. 41 with a copy of the lease dated 1967. This sign is located in Tampa and the application was also disapproved because of spacing. Both of these locations are zoned commercial and are within the corporate limits of Tampa, Florida. The structure on which the signs shown on Exhibits 1 and 2 were erected was built in 1968 and the sign involved in Exhibit 3 was built in 1967. The signs for which a permit was requested in Exhibits 1 and 2 is located 325 feet north of a permitted structure owned by Tampa Outdoor Advertising, Inc. on the same side of the street and facing in the same direction. The sign for which a permit was requested in Exhibit 3 is 275 feet west of a permitted sign facing the same direction and on the same side of the street which is owned by Foster and Kleiser. No appeal was taken from these disapprovals, but by applications dated June 19, 1979, Petitioner in Exhibits 4, 5 and 6 reapplied for permits for the same signs that had been disapproved in 1977. These applications were also disapproved because of spacing. The I-4 and the I-275 are part of the Interstate Highway system.
The Issue Did the Department of Transportation (Department) properly issue the Notice of Denied Application pursuant to Chapter 479, Florida Statutes, and Rule 14-10.004(1)(d), Florida Administrative Code?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The sign structure which is the subject matter of this proceeding was originally erected prior to November 11, 1971, at the intersection of I-75, an interstate highway, and SR 52, in Pasco County, Florida. Both I-75 and SR 52 are roadways under the Department's jurisdiction for purposes of enforcing and regulating outdoor advertising sign structures. The original sign structure had one sign facing which faced north. The interchange of I-75 and SR 53 is located outside of the incorporated area of any town or city. The Federal-State Agreement (Agreement) which provides the Department with the authority to regulate outdoor advertising was adopted in 1972. When the Agreement was adopted, it contained a rule which provided, inter alia, that any sign structure located outside of the incorporated area of any town or city could not be located adjacent to or within 500 feet of a restricted interchange or intersection at grade. That rule has now been codified in Rule 14-10.006(4)(e), Florida Administrative Code. At the time it was given authority to regulate outdoor advertising, the Department took an inventory of all existing sign structures. Those existing sign structures that did not conform to the rules set forth in the Agreement were "grandfathered in" as legally nonconforming signs and allowed to remain at their current locations. National's sign structure, which is the subject matter of this proceeding, contained only one sign facing which faced north. National's sign was "grandfathered in" as a legally nonconforming sign structure. National's sign was nonconforming because it was not located within an incorporated town or city and was located adjacent to or within 500 feet of a restricted interchange. Some time prior to l973, National's sign was issued state permit number 1417-10. In 1973, National's sign permit number was changed to AU061-35 which is the permit number currently assigned to National's sign structure. On July 9, 1998, National submitted an application for an outdoor advertising sign permit for a proposed sign facing, which was to face south, to be constructed on the existing nonconforming sign structure under permit number AU061-35. National's existing permitted sign structure has a sign facing which faces north and is located at the intersection of I-75 and SR 52 in Pasco County, Florida. The addition of a south sign facing to the existing legally nonconforming sign structure would create a back-to-back sign structure. The application as submitted by National was incomplete in that National failed to include in its application proof of local government approval. At the hearing, National produced proof of local government approval for the south side facing requested in the permit application. On July 22, 1998, the Department issued a Notice of Denied Application to National citing the following reasons for the denial: 14E Site is within 500 feet of a restricted interchange or intersection at grade (S. 14- 10.006(1)(b)5., FAC). * * * 14I Other -- No local government approval. The permit application did not include local government approval at the time it was submitted to the Department. However, the Department did not return the permit application as being incomplete. Subsequently, National obtained local government approval. National's existing legally nonconforming sign structure is located within the restricted area of the I-75 and SR 52 interchange in that it is located adjacent to the on-ramp carrying traffic from SR 52 to the southbound lanes of I-75 and is within 500 feet of the interchange.
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 a sign permit at the location requested in the permit application previously filed by National. DONE AND ENTERED this _25th_ day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this _25th_ day of June, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Jennifer Sloane, Esquire Livingston and Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On July 20, 1987, a DOT sign inspector observed a portable outdoor advertising sign along U.S. 19 near the intersection of 108th Street North in Pinellas County which appeared to be located on the DOT right-of-way. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the edge of the paved lane. Measurements taken showed the sign to be 38 feet from the edge of the pavement. Photos taken of the sign at the time the sign was inspected reveal that the sign was damaged with the frame bent. Around noon of the day the sign was inspected, Respondent was notified by the user of the sign that the sign's frame had been bent and the sign damaged. A second call to Respondent around 1:30 P.M. advised that a warning notice had been placed on the sign. When Herb Selak arrived at the scene shortly thereafter, he observed the anchor missing from the sign and the sign damaged apparently having been hit by a construction company vehicle and pushed off of the parking lot where it had been located and anchored. Prior to the unauthorized removal of the sign onto the right-of-way by a third party, the sign was lawfully placed.
Findings Of Fact On July 15, 1987, the DOT sign inspector observed a sign owned by Respondent in front of McDonald's restaurant on what appeared to be the right- of-way along the western side of U.S. 19, 800 feet south of Lime, in Pinellas County. The DOT right-of-way along U.S. 19 at this location extends 100 feet eastward of the centerline of U.S. 19. The right-of-way line on the western side of U.S. 19 at this location is 55 feet from the westernmost edge of the southbound lanes. Measurements taken from the pavement edge to the sign located the sign 48 feet from the edge of the pavement, which is 7 feet inside the right of way line. When a permit for this sign was obtained by Respondent from the City of Tarpon Springs Planning Department, a sketch accompanying the application (Exhibit 5) located the sign 30 feet from the edge of the pavement of U.S. 19. When cited for being on the right of way, this sign was located further from the pavement of U.S. 19 than landscaping shrubs planted and tended by McDonald's in front of the restaurant. For these reasons, Respondent assumed the sign was legally positioned. The location of the DOT right of way is not readily determinable by a businessman desiring to erect a sign in front of his business. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of location of the limit of the right-of-way. This is specifically true where additional right-of-way has been acquired by DOT along U.S. 19 and other highways. Upon being notified of the citation of this sign for being located on the right-of-way, Herb Selak, owner of Don's Porta Signs, rode up and down U.S. 19 and observed numerous signs located inside the power pole lines which had not been cited. Photographs of those signs were admitted into evidence as Exhibit A written list of those signs provided by Selak for DOT was admitted as Exhibit 10. Selak also observed a DOT vehicle parked in a restaurant parking, and he pulled in and observed one sign inspector emerge from the restaurant with another person and point out the portable sign in front of the restaurant. A photo of this sign showing it to be inside the power pole line was admitted into evidence as Exhibit 9. This sign was not cited by the inspector. Selak made an appointment and proceeded to Bartow to discuss the citing of his signs for violating the right-of-way. He gave a copy of Exhibit 10 to the chief of the outdoor advertising section for DOT District I. Most of these signs were subsequently cited by the DOT inspector for being on the right- of- way. Where signs are located on newly acquired right-of-way, the department takes the position that the sign owner be notified that the sign is in the right-of-way, and he is entitled to a reasonable time in which to remove the sign therefrom.
The Issue Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this controversy, Petitioner, Department of Transportation (DOT), seeks to revoke a permit (No. BP844) for an off-premise outdoor advertising sign owned by Respondent, National Advertising Company (Respondent), an entity now known as "Infinity Outdoor," on the grounds that the original sign was destroyed by a hurricane in October 1999, the sign has lost its nonconforming status, and Respondent cannot lawfully rebuild the structure. In response to these charges, Respondent contends that after the sign was damaged, unknown persons stole the damaged structural pieces that were going to be used in part to rebuild the sign. Under a theory first disclosed at hearing, Respondent went on to contend that if those materials were still available, it could qualify for a seldom, if ever, used exception found in Rule 14-10.007(1)(d), Florida Administrative Code, which would otherwise allow it to reconstruct the sign. That rule provides in part that a sign will not be considered destroyed if the owner can demonstrate that "the replacement material costs to reerect the sign would not exceed [fifty percent] of the value of the structural materials in the sign, immediately prior to destruction." Using that provision, Respondent argues that much of the sign's structure could have been rebuilt with the now- stolen materials, and the remaining "replacement material costs" would not exceed the threshold in the rule. The sign was erected in 1968 before spacing requirements for signs were first adopted in 1972; therefore, unless it is destroyed, the sign can continue to qualify for nonconforming status as long as it remains substantially the same as it was as of the date it became nonconforming. Because the sign is situated on U.S. Highway 1 in Brevard County, a federal-aid primary highway, and another permitted sign lies approximately 200 feet away, under current spacing requirements, a sign cannot be rebuilt on the same site. This is because current spacing requirements prohibit two signs from being closer than 1,000 feet apart on a federal-aid primary roadway. The sign in question is located adjacent to U.S. Highway 1, 0.341 miles north of Florida Memorial Gardens in Brevard County, Florida. In October 1999, Hurricane Irene tracked northward along the eastern coast of Florida causing extensive wind damage, including substantial damage to Respondent's sign. Photographs received in evidence as Petitioner's Composite Exhibit 3 show the condition of the sign on October 26, 1999, or shortly after it was damaged by the hurricane. Among other things, two of the five support poles (which were buried to a depth of eight feet) were "splintered" approximately two to three feet above ground level, while the other three were "knocked over" and "broken" at ground level. The wooden facing of the sign "had been knocked up against a pine tree" and the wooden plywood "panels [on which the sign message is printed] were split." The "stringers," whose numbers were variously described in the record as nine and sixteen, and which measure 2 x 4 x 20 feet and support the backside of the structure between the poles, were also damaged. The condition of the sign is corroborated by similar photographs taken on October 18 and 22, 1999, by a code enforcement officer of Brevard County. In the judgment of the DOT inspector who visited the site shortly after the hurricane, none of the damaged structural materials (poles and stringers) could be reused due to the amount of damage caused by the hurricane's winds. However, the inspector was unable to assign a replacement cost for any of those structural materials, or the replacement value of the sign immediately prior to its destruction. On an unknown date, but after the photographs were taken by DOT on October 26, 1999, Respondent's operations manager, Billy Nichols (Nichols), instructed a subcontracting crew to inspect each of the company's signs and to drop off at each sign location "what they thought we may have needed" to repair the signs. After inspecting the sign in question, the crew deposited five brand new poles at the site. Respondent takes the position that it always intended to use a combination of old and new materials, rather than all new materials, to repair the damaged sign. The date on which this decision was made by Respondent is not apparent in the record. In addition, despite a lack of clarity in the record, in its post-hearing filing, Respondent represents that the new poles were deposited at the site before the damaged materials were removed. However, it can be reasonably inferred from the evidence that based on the subcontractor's actions, Respondent originally intended to replace virtually the entire structure since five new poles were dropped off at the site of the sign; after a Citation was issued, Respondent apparently decided to reerect the sign under the theory proposed at hearing. Sometime after November 8, 1999, when DOT issued its Citation, Respondent maintains that much of the debris from the site, including the damaged poles and stringers, was unlawfully removed by unknown persons, resulting in Respondent being forced to rebuild the sign with all new materials. The new poles, however, were not removed and remained at the site. Because of the Citation, no work has occurred pending the outcome of this proceeding. In applying the terms of the rule relied upon by Respondent, DOT ascertains the cost of the sign and the replacement materials by utilizing cost data from retail stores, such as Home Depot or Lowe's, on a date as close to the date of destruction as is possible. In this case, that date would fall in September or October 1999. In addition, even if a sign owner decides to repair his sign with used or recycled materials, those materials would still be valued as if they were new. Further, only items such as supporting braces (stringers) or members of the sign structure (support poles) qualify as structural materials. This means that the sign facing would not be considered a structural component within the meaning of the rule. Finally, any old materials from the original sign that were reused would not be a part of the overall cost. Apart from the cost issue, in reconstructing the sign, the owner must return the sign to substantially the same configuration as before the damage. Thus, any change in the height or width of the sign facing, the number of feet that the sign sits above the ground, the structural safety of the sign, or the size of the replacement materials, might constitute a substantial change and prohibit reerection. In the case at bar, the testimony establishes that if Respondent proposes to change the height of the sign, the type of structural materials used, or the number of support poles, this would constitute a substantial change in the sign and disqualify Respondent from utilizing the exception in the rule. Although the rule does not specifically require such information, to prove that materials were stolen by unknown persons, historically DOT has required that the owner submit a police report confirming that materials were stolen. In this case, no police report was ever filed by Respondent, nor did it file a claim with its insurance company for the value of the materials allegedly stolen. Respondent submitted cost data from three local "supplier[s]" confirming that the value of the structural components of the sign just prior to its being damaged was not greater than $1202.00. This figure was derived by taking the cost of five new poles at $202.00 per pole, or $1010.00, and sixteen new stringers at a cost of $12.00 per stringer, or $192.00. Respondent's suggestion that the cost of plywood for the new sign facing ($636.00) should also be counted as a structural material has been rejected since that component does not qualify as such a material under the rule. Respondent's operation supervisor (Nichols) offered two alternatives for repairing the sign. First, he suggested that by lowering the structure below its previous height, he could reerect the sign using only two new poles. This alternative, however, would substantially change the sign's configuration and violate the terms of the rule. Second, in order to keep the sign at its original height, Nichols stated that he would purchase three new poles and "stub" two of the damaged poles by adding two more stringers. The second option would cost only $630.00, but under this alternative, the value of the replacement materials would exceed fifty percent of the cost of the structure ($1202.00) just prior to the sign being damaged. Then, too, the record shows that by making this type of repair, the sign facing would be weaker, making it less safe; its wind load would be changed; and the sign height would be lower. Thus, these modifications would constitute a substantial change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by National Advertising Company under Permit No. BP844 has been destroyed, is nonconforming, and cannot be reerected. The permit should also be revoked. DONE AND ENTERED this 12th day of May, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this day 12th of May, 2000. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation Attn: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
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
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Billboard Consultants for permits to erect outdoor advertising signs on Prudential Drive (U.S. 1), 90 feet south of Flagler Avenue, facing south, in Jacksonville (Duval County), Florida, be denied. THIS RECOMMENDED ORDER entered this 22nd day of April, 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 22nd day of April, 1985.
Findings Of Fact Captain Doug's Restaurant is located on Key Largo, Florida, at approximately Mile Marker 99.5. The restaurant does business as a corporation. Douglas W. Newell is the President of the corporation, and the manager of Captain Doug's Restaurant. The restaurant is located on the ocean side of the northbound lane of U.S. Highway 1. The highway is a four-lane divided highway at that location. The median is quite broad. The median serves as a location for numerous busineses and structures, and only a portion of it serves as the highway right-of-way. Mr. Newell maintains a sign advertising Captain Doug's Restaurant just east of the southbound lane of the highway in the median. The sign, which, totals approximately twenty feet in height, has the neon letters "restaurant" on a top section. A bottom section specifies menu items available at the restaurant, and is topped by a flashing arrow which points the direction to the restaurant. The sign is essential to the restaurant's business because otherwise the restaurant would not be visible from the southbound lane of the highway. The flashing arrow on the sign is an integral part of the design of the sign. It does not imply the need or requirement of stopping, or the existence of danger, but it is brighter than other parts of the sign and is likely to be distracting to motorists. The arrow would have the same advertising effects if the lights on it were on, but not flashing, and would not, with a non-flashing configuration, be as distracting to motorists. There are numerous signs located along Highway 1 in the Keys that have flashing parts, but none were observed with the flashing arrow pattern of this sign. The Department of Transportation owns a right-of- way along the southbound lane of U.S. Highway 1 which extends seventy feet from the center line toward the northbound lane. The sign advertising Captain Doug's Restaurant lies totally within this right-of-way. The front of the sign is 46.2 feet from the center and the back post is 57.1 feet from the center.
Findings Of Fact Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4. DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate. As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4. Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader." The sign was permitted by the City of Lake Mary on October 17, 1984. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T. DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of October, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mac Davidson Maxmedia Outdoor Advertising Post Office Box 847 Winter Park, Florida 32790 Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
