Findings Of Fact Violation notices for two signs owned by Petitioner were issued and were the subject of this hearing. Subsequent to the taking of the testimony but prior to the close of the record, the Respondent, Florida Department of Transportation, withdrew its complaint against Petitioner, Peterson Outdoor Advertising, on one of the signs, to wit: Board No. 92 located 4.4 miles north of State Road 404, Highway A1A, n/b with copy "Bank Services" for which a violation notice was issued the 14th day of March, 1977. The violation notice issued against Peterson Outdoor Advertising Corporation on Board No. 3297 located at 1.07 miles south of State Road 520 on Highway 1-95, M.P. 37.10 with copy "Seaworld" is the subject of this hearing. The violation notice cited Petitioner for violation of Section 479.07(1), no permit. Petitioner had a sign located in the approximate location of the sign now cited in violation. The sign was badly damaged by what was apparently an act of God, a windstorm. Most of the sign was destroyed as shown by Petitioner's Exhibit 1, a photograph taken in January of 1977. The sign had been constructed with six inch by eight inch beans and a plywood face. The height of the sign was approximately six feet. There were Peterson identifiers on part of the structure that was left standing. A new structure was erected at the approximate same location. Round poles for the supporting structure were erected. The new sign of new materials was built and the elevation of the new sign is approximately twenty feet in height. The State's Exhibits 2 and 3, photos taken on February 4, 1977, show the new structure, Exhibit 2 showing new round poles and the State's Exhibit 3 showing a sign approximately twenty feet in height advertising "Florida's Best Entertainment Value SEAWORLD. On 4 Between Orlando & Walt Disney World" as copy. The State's Exhibit 1 shows the remains of the old sign in the approximate location. The new sign, which is the sign of this hearing, carries the same permit nunber that the prior destroyed sign carried on one of the posts of the structure. The Respondent, Department of Transportation, contends: that no permit was applied for or obtained for the subject sign; that the old sign in the approximate same location was destroyed by an act of God and a new sign was rebuilt in the approximate location without a permit; that the old sign was erected with square poles and to a height of about six feet whereas the new sign was erected with round poles and with a height of approximately 20 feet; that the permit displayed on the new sign is the permit that had been issued to the old destroyed sign and when the sign was blown down the permit expired and should not have been placed on the new sign by the Petitioner, Peterson Outdoor Advertising. Petitioner, Peterson Outdoor Advertising, contends: that no one saw the old sign fall and it is a mere conclusion that it blew down; that it has a permit on it. The Proposed Recommended Order of Petitioner has been considered in the preparation of this Order.
Recommendation Remove the sign, Board No. 32-97. DONE and ORDERED this day of July, 19'77, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 503 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32790
Findings Of Fact National Freight is a trucking business. It currently uses 123 trailers in Florida which are longer than 48 feet, the length limitation set by Section 316.515, Florida Statutes. These trailers may operate in Florida only with a special permit issued by DOT pursuant to Section 316.550, Florida Statutes. In 1981, when National Freight began operations in Florida, a special permit was required from DOT only if the tractor-trailer combination exceeded 55 feet in length. At that time, DOT's practice was to routinely issue special permits to tractor-trailer combinations which exceeded 55 feet in length but did not exceed 65 feet in length. DOT issued special permits to a number of National Freight's vehicles in 1981 based upon a showing that the tractor-trailer combination exceeded 55 feet but not 65 feet in length. These permits were renewed in 1982 based upon this same showing. In 1983, National Freight was orally notified by DOT that a special permit would no longer be required for an overlength tractor-trailer combination, only for an overlength trailer, and that an overlength trailer must have been registered and operating in Florida prior to December 1, 1982, to be eligible for a special permit. DOT never promulgated any rule or prepared any written guidelines specifying these permit requirements. DOT expressed its policy of using Section 316.515(3)(b), Florida Statutes, as a guide for issuing special permits under Section 316.550. While DOT expressed this policy at the formal hearing, two weeks prior to the formal hearing, a contrary policy was expressed by Jack Roberts in his deposition. Specifically, Roberts stated at that time that Section 316.515(3)(b) removed DOT's discretion under Section 316.550. Under DOT's interpretation of Section 316.515(3)(b), as expressed at formal hearing, only those vehicles which were registered and operating in Florida as of December 1, 1982, should be issued special permits under Section 316.550. On September 16, 1983, after discussing the new permitting requirements by telephone with Billy Berry, DOT's State Highway Permits Engineer, Hal Kaplan sent DOT a list of additional overlength trailers National Freight had intended to use in Florida. On September 19, 1983, National Freight supplied DOT with documentation that a number of these trailers had been ordered from the manufacturer in October, 1982, prior to the December, 1982, permitting deadline. One hundred one (101) trailers were identified on the list supplied by National Freight, although one vehicle serial number was incorrect and that trailer was stricken from the list by DOT. Of the remaining 100 trailers, 53 had been ordered new from the manufacturer in October, 1982, and 47 were registered in New Jersey ,and used between several different states, including some use in Florida. At all material times, Florida and New Jersey were both party to a "Multistate Reciprocity Agreement." Among other things, this Agreement exempts contracting jurisdictions from vehicle registration requirements in other participating jurisdictions when those vehicles are used in any type of interstate operation. On September 28 or 29, 1983, Hal Kaplan and Billy Berry met to discuss the documentation supplied by National Freight and the permitting status of the 100 additional overlength trailers. DOT was advised at that time that none of the 100 additional trailers were yet available for use in Florida and that National Freight thus could not have met the permitting deadline with respect to any of those trailers. National Freight was told that DOT would consider the documentation showing that the trailers had been ordered prior to the permitting deadline for intended use in Florida in determining whether it would issue permits for the additional trailers. In October, 1983, DOT issued special permits for all 100 additional trailers. These permits were subsequently renewed in October, 1984. After the permits were issued, it cost National Freight approximately $60,000 to bring the 100 additional trailers into Florida. National Freight would not have incurred this expense had the trailers been denied Florida permits, and it acted in reliance upon DOT's issuance of the permits, reasonably assuming from DOT's action that the vehicles were permittable. On January 16, 1985, in response to an inquiry concerning the validity of National Freight's special permits, DOT notified National Freight by Certified Mail that permits had been issued to the additional overlength trailers "with the understanding that they would be operating and registered in Florida prior to July 1, 1983." The letter requested National Freight to supply proof of registration prior to that date and stated that the permits were subject to cancellation if proof of timely registration was not received. When National Freight was unable to supply the requested information, DOT initiated an administrative proceeding to revoke the 100 permits. After a formal administrative hearing, a recommended order was entered recommending against revocation. DOT later dismissed the proceeding as moot. (DOAH Case No. 85-1362) By letters dated September 19 and October 15, 1985, National Freight applied for a second renewal of its special permits. In its October letter, National Freight acknowledged that 100 of the permits sought to be renewed were for trailers which had not been registered and operating in Florida before December 1, 1982, but had been offered for use in Florida before that date. The letter further stated that the 100 permits had been originally issued in 1983 based upon proof that the permitted vehicles had been ordered before December 1, 1982, and that the permits had been routinely renewed in 1984. Renewal for 1985 was requested on this same basis. DOT denied renewal of the 100 permits by letter dated October 16, 1985. The sole reason for denial was National Freight's failure to provide proof that the 100 trailers for which these permits are sought were registered and operating in Florida on or before December 1, 1982. Each of the 100 trailers, when used in a tractor- trailer combination, is over 55 feet but less than 65 feet in length. Each would thus have qualified for a special permit under DOT's permitting practice prior to 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation grant National Freight's application for renewal of special permits for the operation of the 100 tractor- trailers identified therein. DONE AND ENTERED this 26th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0374 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, National Freight, Inc. Petitioner's proposed findings of fact 1-16 are adopted in substance as modified in Findings of Fact 1-16. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation Respondent failed to file proposed findings of fact. COPIES FURNISHED: Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 W. Douglas Hall, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith Cutler and Kent, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Charles G. Gardner, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Of the two signs located on the property owned by the Respondent, Mr. Leo Vogt, the larger sign is located 786 feet from the business office and the smaller sign is located 800 feet from the business office. The larger sign is located 398 feet from the nearest edge of the right- of-way of I-10. A proper violation notice was given citing this sign. The smaller sign is located fourteen (14) feet from the nearest edge of the right-of-way of I-10. No violation notice was given citing this sign. Respondent has actual notice that Petitioner claims both signs are in violation of Chapter 479, Florida Statutes, and both signs carry similar copy.
Recommendation Notify the Respondent that his sign located 0.5 miles east of State Road 87 on Interstate 10, with copy "Safari Campground Welcome" will be removed if such is not removed within ten (10) days after entry of the Final Order. DONE and ORDERED this 23rd day of November, 1976, 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 Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Leo Vogt Route 4, Box 185 Milton, Florida 32570 J. Bryan Jordan, C.S.R. 212 South Palifox Street Pensacola, Florida 32501 Larry K. White, Esquire Staff Counsel, Office of Legal Operations Haydon Burns Building Tallahassee, Florida 32304 Philip S. Bennett, Esquire Florida Department of Transportation Staff Counsel, Office of Legal Operations Haydon Burns Building Tallahassee, Florida 32304
Findings Of Fact On January 21, 1985, the Department received two applications from the Petitioner, Bill Salter Outdoor Advertising, Inc., seeking permits for a two-faced sign on the north side of I- 10, 1.6 miles east of SR 87 in Santa Rosa County, Florida. This sign would face east and west. The Petitioner's applications stated that the proposed site was in an unzoned commercial or industrial area, within 800 feet of a business, and that the sign would meet all requirements of Chapter 479, Florida Statutes. Since these applications were filed after July 1, 1984, they are governed by the provisions of the 1984 Supplement to Chapter 479 which became effective July 1, 1984. The Petitioner leased the proposed sign site from George Atkinson of Milton, Florida, in November of 1984. George Atkinson had a metal building on this property which was used as a warehouse, or storage shed, in the Atkinson Heating and Air Conditioning business. Although the Atkinson warehouse, or storage shed, had a small sign on it with the Atkinson company name printed thereon, this sign was not visible from the interstate, and there was nothing about this building that would indicate to traffic on the main-traveled way of I-10 that a business activity was being conducted there. George Atkinson has retired, and the storage building was leased to Bush Painting Company on December 1, 1984. Busch Painting Company is located in Pensacola. Although it might use the Atkinson building as a storage area, there is no evidence that any business activity is being conducted there by Bush Painting Company. Across the interstate from the proposed sign site there is a junk yard on which is a house trailer, wrecked cars, piles of junk, and piles of wood scrap. There are three business listings in the telephone book for the junk yard property, namely, Clark's Surplus and Used Auto Parts, Clark's Flea Market and Clark's Surplus and Recycling. These three businesses have the same telephone number. The Atkinson storage building now leased to Bush Painting Company, and the three Clark businesses on the other side of the interstate, are located within a 1,600 foot radius of each other. The proposed sign site is within 800 feet of the Atkinson storage building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the applications of Bill Salter Outdoor Advertising, Inc., for permits to erect a sign on the north side of I-10, 1.6 miles east of SR 87 in Santa Rosa County, Florida, facing east and west, be denied. THIS RECOMMENDED ORDER entered this 12th day of March, 1986 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 12th day of March, 1986. COPIES FURNISHED: Bill Salter Outdoor Advertising, Inc. P. O. Box 422 Milton, Florida 32572 Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact On September 1, 1981, the Department received in its district office in Chipley, Florida, the Respondent's application for a permit to erect an outdoor advertising sign adjacent to I-10, approximately 1.62 miles east of SR 69S in Jackson County, Florida. This permit application stated that the location requested was in a commercial or industrial area within 800 feet of a business. The Department's outdoor advertising inspector visited the site after having reviewed the Respondent's application and being told by Harry Fuqua that he would find a business called Branch's Garage there. He found a house with a tin farm-type building like a barn in the back. Inside this tin barn were some tools and welding equipment. There was a sign on the door stating the business hours, and another sign on the side of this tin building stating the name Branch's Garage. None of this was visible from I-10, however; all that could be seen from the interstate was the roof of the residence and part of the tin barn; there was no indication to traffic on the interstate that any commercial activity was being conducted at this location. The inspector's supervisor and the Department's Right-of-Way Administrator both visited the site prior to approval of the subject permit. The supervisor had also been told that he would find a business known as Branch's Garage there, and he was looking for it. At the site he observed what appeared to be a garage and some work being done. This could not be seen from I-10, and from the interstate he could not see anything that would indicate to traffic that a garage was at this location. The Respondent's representative, Harry Fuqua, admits that no business activity was visible from I-10, and that there was nothing to indicate to traffic on the interstate that any commercial activity was being conducted at this location. The site where Branch's Garage is located cannot be reached from I-10 directly. It would have to be approached from one of the side roads after traffic had exited the interstate. Based upon his inspection of the site, coupled with the Respondent's representation that a business called Branch's Garage existed there, the inspector approved the Respondent's application for a sign permit. Thereafter, both the supervisor and the Right-of-Way Administrator also approved the application. The permit was issued on or about September 8, 1981, because of the proximity of the proposed site to the nearby business known as Branch's Garage which had been observed by the inspector, his supervisor, and the Right- of-Way Administrator. Subsequently, after the permit had been issued, the Respondent erected its sign which is the subject of this proceeding. In late 1984 and early 1985 there was no business activity at the subject site and there continues to be nothing there to indicate to traffic on the interstate that any commercial activity exists at this location. The Respondent through its agent Harry Fuqua, submitted the application for the subject permit, and designated thereon that the proposed location was in an unzoned commercial area within 800 feet of a business. This application also certified that the sign to be erected met all of the requirements of Chapter 479, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AF191-10 held by Fuqua & Davis, Inc., be revoked, and the sign which was erected pursuant to this permit be removed. THIS RECOMMENDED ORDER entered this 11th day of July, 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 11th day of July, 1985. COPIES FURNISHED: Maxine C. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 James J. Richardson, Esquire P. O. Box 12669 Tallahassee, Florida 32317-2669 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue As to DOAH Case Nos. 14-4926 and 14-4927, the issues are whether the billboards identified in the notices of violation are located on the premises of Respondent's business and, thus, exempt from licensure; and, if not, whether the billboards are eligible for licensure pursuant to section 479.07, Florida Statutes, or, alternatively, the "grandfather" provision set forth in section 479.105, Florida Statutes. With respect to DOAH Case No. 14-4928, the issue is whether Respondent engaged in, or benefitted from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact I. DOAH Case Nos. 14-4926 & 14-4927 The Parties The Respondent in these proceedings is I-10 Pecan House, Inc. ("Pecan House"), an entity currently owned and managed by Olan Q. Nobles. As discussed in greater detail below, Pecan House is a small country store that has conducted business in Jefferson County, Florida, for nearly 40 years. The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 600 feet of, and visible from, interstate highways. The Events In or around 1976, Erma Jean Walker (Mr. Nobles' sister) and her husband, Lyman Walker, III, purchased three tracts of land that are relevant to this proceeding. The first such parcel, upon which the Walkers quickly constructed an open- air market, comprises one acre and is located on State Road 257, immediately north of the intersection of that roadway and I-10. The second relevant parcel, .18 acres in size and located a short distance to the southeast of the first tract, is situated adjacent to the westbound lanes of I-10. Upon their acquisition of this parcel, the Walkers constructed a billboard that advertised the open-air market and the related business activities conducted on the third parcel. The third parcel, which is roughly 2.3 acres in size and likewise adjoins the westbound lanes of I-10, is located less than 1000 feet to the east of the second tract. It is upon this tract that, in mid-to-late 1976, the Walkers built a concrete structure to be used for the purpose of manufacturing candy and jelly——products the Walkers offered for sale at the nearby open-air market. By the end of 1976, the Walkers also constructed (upon the third parcel) a billboard advertising the open-air market and jelly/candy manufacture. Although the billboards referenced above were visible from I-10 and located within 600 feet of the roadway——and, thus, within the Department's "controlled area"——the Walkers did not apply for outdoor advertising permits. This is because, as the Department concedes, the billboards were exempt from licensure from 1976 until the mid-1990s (or perhaps later, as Mr. Nobles asserts) under the "on premises" exemption set forth in section 479.16, Florida Statutes. Under the definition of "premises" in effect during that period, the land upon which a sign was located did not need to be contiguous to the advertised business in order for the exemption to apply. For reasons that will soon be apparent, it is necessary to inject a third billboard into this discussion: in 1993, the Walkers constructed on the third tract of land a "double-stack" billboard, which is situated less than 200 feet and 1000 feet, respectively, from the signs erected in 1976 upon the third and second tracts. Although the double-stack billboard would have ostensibly satisfied the on-premises exemption, the Walkers nevertheless applied for——and were granted——an outdoor advertising permit. For all that appears, the Department has never initiated any proceedings to revoke the permit, which remains valid to this day. In 1995, Mrs. Walker transferred control of Pecan House to Mr. Nobles, who until that time had assisted the Walkers on an as-needed basis. Soon thereafter, Mr. Nobles upgraded the open-air market (on the first parcel) to a secure building and, of particular relevance here, ceased all manufacturing activities at the concrete building (on the third parcel). At or around that time, the Legislature amended the definition of "premises" to include a contiguity requirement.3/ This is significant, for the second and third parcels——the locations of the two billboards at issue herein——are not contiguous to the first parcel but, rather, are separated by a tract in which neither the Walkers nor Mr. Nobles holds a leasehold or ownership interest. Further, there is no recorded easement connecting Mr. Nobles' three parcels. Thus, although the two billboards constructed in 1976 lost their on-premises status in the mid-1990s, this fact apparently went unnoticed by the Department for roughly 13 years. Then, in March of 2008, the Department issued notices of violation in connection with both billboards. Among other things, the notices alleged that "outdoor advertising permit[s] [were] required, but ha[d] not been issued" for the billboards, which Mr. Nobles was instructed to remove within 30 days. A short time thereafter, an inspector or other agent of the Department conducted, in Mr. Nobles' presence, an examination of the 1976 billboards and Pecan House's business operations. At the conclusion of her inspection, the Department employee erroneously opined that, in fact, there was "no problem"4/ with the billboards in question, which Mr. Nobles reasonably took to mean that the signs continued to satisfy the on-premises exemption and, thus, were exempt from licensure. The reasonableness of this understanding was bolstered by the fact that, subsequent to the inspection, Mr. Nobles heard nothing more from the Department concerning the March 2008 notices of violation.5/ More than four years later, on December 17, 2012, the Department issued new notices of violation in connection with the 1976 billboards: notice 1352, relating to the billboard constructed upon the third parcel, which presently reads "Exit Now" and bears a Shell gasoline logo (hereinafter "Exit Now"); and notice 1487, relating to the billboard erected upon the second parcel, which presently reads "Welcome to Big O's / We Appreciate Your Business" (hereinafter "Big O's"). The parties thereafter engaged in settlement negotiations, in the course of which Mr. Nobles' counsel struggled mightily to convince the Department that the billboards continued to satisfy the on-premises exemption. When the Department rejected this argument, Mr. Nobles applied for an outdoor advertising permit for each billboard. The applications were ultimately denied, prompting the Department to refer the matters to DOAH for further proceedings. Based upon the evidence adduced at final hearing, it is evident that the billboards in question no longer meet the on-premises exemption and, thus, are subject to removal unless the signs meet either the current statutory requirements for a permit or, alternatively, the "grandfather" provision set forth in section 479.105, which authorizes licensure if the billboards satisfy earlier statutory criteria and certain other conditions. Eligibility for Licensure – "Exit Now" Beginning first with the "Exit Now" billboard, the record makes pellucid that the current statutory requirements for licensure cannot be satisfied. Among other things, the sign is located a mere 190 feet from the permitted, double-stack billboard erected in 1993, a distance far less than the minimum spacing requirement of 1500 feet. See § 479.07(9)(a)1., Fla. Stat. As for the potential applicability of the grandfather provision to the "Exit Now" billboard, it is critical to observe that the Department's delay of nearly five years (March of 2008 through December of 2012) in pursuing removal has placed Mr. Nobles at a significant disadvantage. In particular, had the Department moved forward in 2008——instead of inexplicably abandoning the action, which, along with the statements of its inspector, led Mr. Nobles to believe, incorrectly, that no permit was required——Mr. Nobles likely would have applied for a permit,6/ which the Department would have evaluated pursuant to the version of the grandfather provision in effect at that time. This is significant, for the 2008 codification of the grandfather provision, which remained unchanged until July 1, 2014, did not preclude licensure in situations where a billboard had previously enjoyed on-premises status or some other recognized exemption from the permitting requirement. Further, the pre-July 1, 2014, grandfather provision was quite favorable in that it allowed a potential licensee to demonstrate that the billboard would have met the criteria for licensure in effect "[a]t any time during the period in which the sign has been erected." § 479.105(1)(e)2., Fla. Stat. (2013)(emphasis added). The current version of the grandfather provision is quite a different animal. For one thing, grandfather status can only be granted if the billboard at issue "has never been exempt" from permitting. § 479.105(1)(c)2., Fla. Stat. (2014) (emphasis added). For another thing, the current grandfather provision looks not at "any" time in which the sign has been erected but, rather, at the criteria in effect during the initial seven years in which the sign was subject to the Department's jurisdiction. § 479.105(1)(c)2.b., Fla. Stat. (2014). As Mr. Nobles readily acknowledges, his effort to obtain a permit for the "Exit Now" billboard is a nonstarter under the 2014 version of the grandfather provision, whose plain language prohibits the issuance of a permit where, as here, the sign was previously exempt from licensure. This does not end the matter, however, for the undersigned finds that the Department's unjustified delay in pursuing removal——along with its agent's erroneous statement that the billboard was legal, upon which Mr. Nobles relied——requires that the "Exit Now" application be evaluated under the version of the grandfather provision that was in effect from 2008 until July 1, 2014. Pursuant to the pre-2014 codification of section 479.105, "grandfathering" was authorized if the owner could demonstrate: 1) that the sign in question had been unpermitted, structurally unchanged, and continuously maintained at the same location for at least seven years; 2) that, at any time during the period in which the sign has been erected, the sign would have satisfied the criteria established in chapter 479 for issuance of a permit; 3) that the Department did not file a notice of violation or take other action to remove the sign during the initial seven-year period in which the sign was unpermitted, structurally unchanged, and continuously maintained at the same location; and 4) that the sign is not located on a state right-of-way and is not a safety hazard. § 479.105(1)(e), Fla. Stat. (2013). Upon such a showing, the Department was authorized to treat the sign as conforming or nonconforming and issue a permit. Turing to the merits, the first prong is easily satisfied, as the "Exit Now" sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for 39 years, far longer than the seven-year period the statute requires. The third prong is also met, for the record makes clear that the Department took no action to pursue removal during the initial seven-year period, i.e., 1976 through 1983, in which the sign was unpermitted, structurally unchanged, and continuously maintained. In addition, the Department stipulates that the sign neither poses a safety hazard nor is located upon a state right-of-way, thereby satisfying the fourth prong.7/ This leaves only the second prong, which asks if the sign would have met the criteria for licensure at any time after it was erected. The selection of any time period subsequent to 1993 would surely doom the application, as the sign would be unable to satisfy the minimum spacing requirement due to its close physical proximity to the double-stack billboard——which, as noted previously, was issued a permit in 1993 and remains licensed. Prior to 1993, however, there does not appear to be any spacing conflict that would preclude licensure in this instance.8/ With the spacing concern resolved (and the relevant period of inquiry narrowed to "any" time between 1976 and 1993), the undersigned turns to the only other criterion for licensure that appears to be in dispute: section 479.111(2), Florida Statutes, which authorizes the issuance of a permit only if the sign is located in "commercial-zoned and industrial-zoned areas or commercial-unzoned or industrial-unzoned areas." Unfortunately, this issue cannot be resolved on the instant record, for there is a dearth of persuasive evidence concerning the zoning designation of the third parcel (the location of the "Exit Now" sign) during the critical period of inquiry. Indeed, the record contains only the Department's speculative assumption that, because the area is presently unzoned, it therefore must have been unzoned at all times in the past.9/ Further, even accepting the Department's assumption at face value, it is impossible to determine whether the business activities conducted on the parcel from 1976 until the mid- 1990s——namely, the manufacture of candy and jelly and the sale of pecans——would satisfy the use test at any time between 1976 and 1993.10/ Under ordinary circumstances, such an absence of evidence would necessitate an adverse result for the permit applicant. Owing, however, to the unusual history and posture of this case, as well as the undersigned's conclusion that the pre-2014 grandfather provision should govern, it is recommended that the Department reevaluate Mr. Nobles' application to determine if the third parcel could have satisfied the requirements of 479.111(2) at any point between 1976 and 1993. Eligibility for Licensure – "Big O's" The undersigned turns next to the "Big O's" sign, which, like the "Exit Now" billboard, is unable to satisfy current licensing criteria due, among other reasons, to its close proximity to the double-stack billboard.11/ Further, as with the "Exit Now" billboard, the fact that the "Big O's" sign was previously exempt from licensure (owing to its on-premises status from 1976 through the mid-1990s) renders it ineligible for licensure under the 2014 codification of the grandfather provision. However, in sharp contrast to the "Exit Now" billboard, the "Big O's" sign is positioned within 500 feet of an interstate exit ramp, thereby constituting a safety hazard. This distinction is fatal to Mr. Nobles, as every codification of the grandfather provision from the mid-90s (when the sign lost its on-premises status) onward has prohibited the licensure of billboards that present a safety issue. The short of it, then, is that the sign was no more eligible for licensure in the past than it is today, which obviates the need for any further analysis under the pre-2014 version of the grandfather provision. For the reasons articulated above, Mr. Nobles has failed to prove that the "Big O's" sign is exempt from licensure by virtue of the "on-premises" exception. Further, the evidence conclusively demonstrates that, due to safety concerns, the sign would not have been eligible for licensure at any point in time. Accordingly, the undersigned is constrained to recommend the sign's removal pursuant to section 479.105. II. DOAH Case No. 14-4928 As noted earlier in this Order, DOAH Case No. 14-4928 involves an allegation that Mr. Nobles engaged in——or benefitted from——the unpermitted removal, cutting, or trimming of vegetation. The relevant facts are recounted below. On January 21, 2013, Mr. Nobles executed a lease agreement with Michael McDougal, who owns a parcel of land adjacent to the eastbound lanes of I-10, approximately .6 miles from County Road 257. In relevant part, the terms of the lease authorized Mr. Nobles to place on the property a pickup truck, attached to which was a billboard that advertised the I-10 Pecan House. Shortly thereafter, in late January 2013, Mr. Nobles relocated the truck to a position on Mr. McDougal's property a short distance to the south of the fence line that separates the parcel from the Department's right-of-way. But trouble soon followed: in late February or early March, the Department received several reports of unusual vegetation removal in the general area of Mr. Nobles' truck sign. In response, the Department requested one of its contractors, Metric Engineering, Inc. ("Metric"), to conduct a field inspection of the area. The inspection was performed on or about March 12, 2013, by Bill Armstrong, a certified arborist employed by Metric. During the course of his inspection, Mr. Armstrong observed, first, an area that the Department had previously cleared to facilitate the installation of a new fence, which had yet to be installed. This particular area, which ran along the length of the fence line and had been cleared within the preceding six months, had a width (as measured from the fence toward the roadway) of approximately 12 feet. Immediately beyond this 12-foot zone, however, Mr. Armstrong noticed evidence of other activity that had occurred much more recently. Specifically, Mr. Armstrong observed, on the side of the fence immediately opposite Mr. Nobles' truck, an area 120 feet in length (parallel to the fence line) and approximately 25 feet in width that had been cleared of vegetation. Within this 120 by 25 foot area, Mr. Armstrong discovered 30 tree stumps, which, upon close examination, exhibited signs of having been recently cut. Such indications included the presence of sawdust; the fact that the stumps were bright in color and relatively clean; and the observation of fresh debris at both ends of the swath. These findings were recorded in a report dated March 25, 2013, which Metric promptly forwarded to Morris Pigott, the Department's Project Manager of Vegetation and Resource Management. Several weeks later, Mr. Pigott conducted his own site visit, during which he examined the particular area that had concerned Mr. Armstrong. Consistent with the findings contained in Metric's report, Mr. Pigott observed, within the 120 by 25 foot area, numerous, freshly-cut tree stumps. Mr. Pigott further concluded, quite reasonably, that this activity had not been performed by the Department or one of its contractors, for the stumps had not been cut to ground level, the vegetation immediately to the east and west of the area was "very dense," and the area had not been "grubbed."12/ (As explained during the final hearing, "grubbing" involves the removal of the top six inches of surface material, an action designed to prevent regrowth.) To cinch matters, Mr. Pigott observed that the selective clearing of the 120 by 25 foot area had enhanced the visibility of Mr. Nobles' truck-mounted billboard for eastbound traffic. Thereafter, on April 14, 2013, Mr. Pigott cited Mr. Nobles for violating section 479.106(7), which provides that any person who engages in or benefits from the unauthorized removal of vegetation shall be subject to an administrative penalty. Mr. Pigott further notified Mr. Nobles that, pursuant to Florida Administrative Code Rule 14-10.057, the Department intended to assess mitigation in the amount of $8,304.25. Mr. Nobles promptly denied any and all involvement in the removal, claiming that a road crew had cleared the vegetation two years earlier. In response, Mr. Pigott contacted Mr. Armstrong, disclosed Mr. Nobles' explanation, and asked that a follow-up inspection be performed. Mr. Armstrong conducted his second inspection on August 8, 2013. At that time, Mr. Armstrong observed that Mr. Nobles' truck-mounted billboard was still present, and that the stumps within the 120 by 25 foot area had sprouted and grown to a height of two to three feet. Samples of the sprouts were collected, which Mr. Armstrong later examined for evidence of internodes——i.e., rings that denote growth, with one ring forming during each growing season. Due to the absence of internodes, Mr. Armstrong concluded that the stumps were in their first growing season, thereby eliminating any possibility that the vegetation had been cleared several years earlier.13/ Finding that the evidence proves clearly and convincingly that Mr. Nobles benefitted from the unauthorized vegetation removal, the undersigned turns finally to the question of mitigation. As noted above, the Department seeks mitigation in the amount of $8,304.25, a figure derived from Mr. Armstrong's use of the formula referenced in rule 14-10.057. It is at this juncture that the Department's case falters. Although Mr. Armstrong offered credible testimony concerning the number and species of trees (water oaks, Florida maples, and the like) that were removed from the area, the record evidence regarding their market value consists entirely of hearsay. Indeed, the Department called no witness who possessed any firsthand knowledge as to the market value of the trees; instead, it presented only the testimony of Mr. Armstrong, who explained that he had telephoned three nurseries, obtained price quotes over the phone, averaged the three figures, and plugged the averages into the formula. To be clear, the undersigned has no quarrel with either the formula or Mr. Armstrong's initial reliance upon the price quotes. The problem is that, in the absence of a stipulation from Mr. Nobles concerning the amount of mitigation, the Department was obligated to adduce at least some non-hearsay evidence of the market values——the starting point of the calculations. Inasmuch as the record is devoid of such evidence, the Department's request for mitigation must be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: DOAH Case No. 14-4926 RECOMMENDED that the Department of Transportation enter a final order finding that the billboard identified in Notice of Violation 1487 ("Big O's") is illegal and subject to removal pursuant to section 479.105, Florida Statutes. It is further recommended that the Department enter a final order denying the related application for an outdoor advertising permit. DOAH Case No. 14-4927 RECOMMENDED that the Department of Transportation take no further action on Notice of Violation 1352 until such time that it reevaluates (under the pre-July 1, 2014, codification of section 479.105) the related application for an outdoor advertising permit. If the application is granted, the Department should enter a final order dismissing Notice of Violation 1352. In the event, however, the application is once again denied, the Department should afford Respondent a point of entry into the administrative process. DOAH Case No. 14-4928 RECOMMENDED that the Department of Transportation enter a final order finding Respondent guilty of violating section 479.106, Florida Statutes, and imposing an administrative fine of $1,000.00 DONE AND ENTERED this 4th day of May, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 4th day of May, 2015.
The Issue Whether the signs of the Petitioner should be removed for violations of Section 479.07(2) and 14-10.04(2), no current permit and the violation of Section 479.07(2) and 14-10.06(3), a spacing violation.
Findings Of Fact An alleged violation of Chapter 479, Section 335 and 339.31, Florida Statutes, and notice to show cause was sent to the Petitioner on the 13th day of February, 1978 alleging that a sign owned by Petitioner located on a roof top thirty (30) feet east of Mills Avenue and State Road 50 with copy reading "WFTV Eyewitness News" is in violation of Section 479.07(2), having no current permit visible. A second sign located on the same roof top, 30 feet east of Mills Avenue and State Road 50 with copy "B.J. 105 Radio Station", was in violation of Section 479.07(2) as having no current permit visible and also in violation of Section 479.02(2), Rule 14-10-06(3), Florida Administrative Code, violation of a spacing requirement. An application was made by Petitioner for a permit but was denied by the Respondent for the two subject signs. The sign with the copy "B.J. 105 Radio Station" is less than 500 feet from a permitted billboard and has no current permit tag attached thereto. The sign with the copy "WFTV Eyewitness News", has no current permit tag attached thereto. The subject signs advertise off-premise businesses and must have permits from the Respondent, Department of Transportation. No permits have been issued for either of the subject signs. Petitioner has agreed that any improper use of the sign will be discontinued and contemplates an "on-premise or on-site" sign which the Respondent has agreed is a proper use and not in violation of the statutes and rules.
Recommendation Remove the signs of Petitioner within 30 days from the date hereof unless such signs are permitted by the Respondent after a change in the copy on the sign structures. DONE AND ORDERED this 18th day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce E. Chapin, Esquire 201 East Pine Street Orlando, Florida 32801 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether a sign owned by Respondent and located on the southbound side of I- 95 north of Pembroke Road in Broward County, Florida, violates Chapter 479, Florida Statutes, as alleged in the notice dated August 8, 1991; and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes. Chapter 479 regulates outdoor advertising structures along the state highway system. Respondent is the owner of a sign located adjacent to the southbound side of Interstate 95 ("I-95") near Pembroke Road in Broward County, Florida. Respondent maintains the sign on the side of the trailer portion of a so-called 18 wheel tractor-trailer (an "18 wheeler") in a stationary position. No truck or tractor is affixed to the trailer. The sign and 18 wheeler were situated on property owned by Air Stern. Air Stern is an air conditioning company. Petitioner's Outdoor Advertising Inspector (the "inspector") first observed the sign in August, 1991. The sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary location. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. The advertising message was clearly visible from I- 95. A light facing the sign was affixed to the ground and positioned to illuminate the sign on the side of the 18 wheeler at night. An expired 1990 Florida license plate was affixed to the back of the trailer. Grass had grown up around the tires of the trailer and the trailer had been in its same position for several months. The inspector issued a Notice of Violation by physically attaching it to the trailer on August 8, 1991. The inspector determined that the printed advertisement on the trailer's side was an unpermitted sign that violated Section 479.07(1), Florida Statutes. The inspector based his determination upon his observation of the trailer on the premises, its position in relation to I- 95, and the type and content of the message printed on the side. Another copy of the Notice of Violation was mailed to Respondent. After more than 30 days had elapsed with no action by Respondent, Petitioner had the first sign removed by Sal's Towing on September 23, 1991. The sign was stored at Petitioner's maintenance facility in Ft. Lauderdale, Florida. On November 9, 1991, Respondent paid the towing charge for removal of the sign and then returned the sign to its original location adjacent to I-95 near Pembroke Road in Broward County, Florida. In addition to placing the sign in its original location, Respondent placed a second sign next to the first sign. The second sign was substantially similar to the first sign. The second sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary position with no truck or tractor attached. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. A sign permit has not been applied for by Respondent nor issued by the Department for either of the signs located adjacent to I-95.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent shall have ten days from the date of the Final Order to comply with Notice of Violation No. 4-369 by removing the sign or be subject to the cost of removal and imposition of an administrative fine. DONE and ENTERED this 6th day of April 1992, in Tallahassee, Florida. DANIEL MANRY 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 6th day of April 1992.
Findings Of Fact A notice was sent to the Respondent on the 11th day of May, 1977, alleging violation of Section 479.07(1), 479.11(1), Florida Statutes, for the reason that the sign owned by the Respondent had no permit attached thereto and was located within 15 feet of the right of way of the secondary road. Respondent's sign is painted on a guard rail which had been erected in front of the residence which stood at the east/west end of the intersection or "T" of State Road 707 and State Road 707A. The copy on the sign which was in two parts read: "Indian River Beverage Deli Take-out Catering" and a telephone number "333-5600--1 1/2 miles South" with an arrow indicating a southerly direction. The immediate area of the residence protected by the guard rail includes a parking lot and a trailer park. The sign advertises the business of the Respondent located 1 1/2 miles from the zone. The sign is approximately 6 feet from the edge of the pavement of the secondary road. No permit was applied for or secured before the sign was painted on the guard rail. Petitioner contends that the sign must be removed inasmuch as it sits less than 15 feet from the edge of the paved secondary road and that no permit was applied for or secured. Respondent contends that he assumed that the owner of the guard rail had gotten a permit to erect the guard rail and that the guard rail was erected to protect the house inasmuch as the house had been invaded by traveling automobiles seven times in seven years. He further contended that the sign was all dirty and rusty, and he made an agreement with the owner of the property to paint the sign and that it was sandblasted, cleaned up and painted in white and made traveling on the state road safer as well as advertising his establishment.
Recommendation Remove the sign unless it has been removed within five (5) days after final order is issued. DONE and ENTERED this 19th day of December, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Martin K. Hawthorne Indian River Beverage, Inc. 2222 Indian River Drive Jensen Beach, Florida 33457
