The Issue The issue in this case is whether Petitioner’s Outdoor Advertising Permit Applications should be denied due to application deficiencies, and because the signs are located adjacent to a designated scenic highway.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the state highway system, interstate highway system, and federal-aid primary highway system. U.S. Highway 1 is a federal-aid primary highway that runs in a generally north/south direction along the east coast of Florida. In April l995, the Department issued outdoor advertising sign permit tag number BK459 to Town & Country Realty for an outdoor advertising sign (the “original sign”). The original sign was constructed adjacent to and on the west side of U.S. Highway 1 in Sebastian, Florida (the “property”). Records maintained by the Department during the period of the original sign’s existence, i.e., the Department’s outdoor advertising database from July 31, 2002, indicate that the original sign was located at U.S. Highway 1 milepost 18.496. That evidence, created contemporaneously with the sign’s existence, and before any controversy regarding the sign arose, is accepted as the most persuasive evidence of the precise location of the original sign. Mr. Pye testified that outdoor advertising sign permits are issued for a specific location, rather than for any location on a parcel of property. Given the precise spacing requirements for signs (see, e.g., section 479.07(9) and section 479.11), and the permitting of signs to the thousandths of a mile, Mr. Pye’s testimony is accepted. The original sign was located against a backdrop of vegetation. The original sign was single-sided with a north- facing sign face. As such, the original sign could normally be seen only from vehicles traveling southbound on U.S. Highway 1. On June 13, 2000, U.S. Highway 1, from milepost 14.267 to milepost 22.269 was designated as the Indian River Lagoon State Scenic Highway. The scenic highway designation included the stretch of U.S. Highway 1 on which the property fronts. On March 18, 2004, Henry Fischer & Sons, Inc./Town & Country Realty sold the property and the original sign to Petitioner. Daniel Taylor, a licensed real estate broker, worked on the transaction that led to Petitioner’s ownership of the property. He indicated that the property was desirable because it was clean, cleared, and demucked, and because it had the permitted original sign as an attractive asset, since the sign provided an income stream that could be used to pay property taxes. Eric Fischer, who was a director of Town & Country Realty, testified that, when the property was sold to Petitioner, the original sign was intended “to go with the property.” Upon the sale of the property and the original sign, Petitioner believed that Town & Country Realty would notify the state of the sale of the sign, and that he would thereafter be contacted by the state. Mr. Taylor testified that he and Petitioner called the Department and determined that Petitioner “could just step into the Fischer's shoes.” Based on the testimony of Petitioner and Mr. Taylor, Petitioner knew, or should have known, that the Department had regulatory oversight over the sign. An Outdoor Advertising Permit Transfer Request form is required to be submitted to the Department in order to transfer a sign permit from one person to another. No Outdoor Advertising Permit Transfer Request form was submitted for permit tag number BK459. Petitioner was never contacted by the state regarding the sale of the sign. Nonetheless, Petitioner continued to lease the sign and, as detailed herein, to replace and move the sign after the hurricanes of 2004. In September and October 2004, Hurricanes Frances and Jeanne struck Sebastian, Florida, very badly damaging the original sign. The wooden supports were flattened and no longer usable, and the sign was “pretty demolished.” Petitioner testified that he was told by an official of Indian River County to relocate the original sign to keep it from proximity of trees that could, in the event of a recurrence of the 2004 storms, topple and destroy the sign. The testimony, which was intended to prove the truth of the matter asserted, i.e., that Petitioner was directed by a governmental representative to relocate the sign, was uncorroborated by evidence that would be admissible over objection in a civil trial. Petitioner hired a person to rebuild a sign on the property. When the sign was rebuilt, it was not replaced at its original location at milepost 18.496. Rather, the “rebuilt sign”1/ was moved to the cleared center of the property at milepost 18.535. Instead of a single-faced sign normally visible to northbound traffic, the rebuilt sign was a double-faced sign, with sides facing north and south. As such, the rebuilt sign could be seen by vehicles traveling U.S. Highway 1 in either direction. The original sign had four equally-spaced square support posts. The rebuilt sign has three equally-spaced round, and more substantial, support poles. The rebuilt sign has 11 horizontal stringers on each face, with each stringer secured to the three support posts. The stringers are uniform in appearance. The photographs of the rebuilt sign clearly show all of the stringers on one side, and some of the stringers on the other. The stringers show no evidence of having undergone storm damage, or of having been secured to support posts at different points along the stringers. The preponderance of the evidence supports a finding that the stringers were -- as were the posts -- new, stronger, intact materials when the rebuilt sign was constructed, and were not materials salvaged from the remains of the original sign. The original plywood facing on the original sign was replaced with vinyl facings on the rebuilt sign. As a result of the foregoing, a preponderance of the evidence indicates that the rebuilt sign was a new sign erected of entirely new materials, and was not established as a result of maintenance or repair of the original sign. After the March 18, 2004, sale of the property and the post-hurricane erection of the rebuilt sign, Town & Country Realty continued to receive renewal billing from the Department for the original sign, along with several other signs owned by Town & Country Realty. Town & Country Realty, having sold the property on which the original sign was located and having no apparent interest in maintaining its other signs, did not pay the renewal bills. On January 31, 2005, the Department issued a Notice of Violation and Order to Show Cause Non-Payment (“NOV”) to Town & Country Realty. The NOV provided a grace period of 30 days within which the license and permits could be renewed, subject to a penalty. Town & Country Realty did not renew the license or permits. On March 7, 2005, the Department issued a Final Notice of Sign Removal, noting that Town & Country Realty had not made payment for renewal or request an administrative hearing to contest the NOV. As a result, Town & Country Realty was given the option of either petitioning for reinstatement of the license and permits, or removing the signs, including the sign bearing permit tag number BK459. Failure to exercise one of the options within 90 days was to result in the removal and disposal of the sign by the Department. On March 22, 2005, as a result of the continued requests for payment, Town & Country Realty submitted an Outdoor Advertising Permit Cancellation Certification form (“Cancellation Certification”) to the Department for permit tag number BK459. The Cancellation Certification was received by the Department on March 24, 2005. The Cancellation Certification was signed by Carl Fischer, president of the permit holder, Town & Country Realty. Mr. Fischer indicated that it was the permit holder’s intent “that the above-referenced Permit(s) be cancelled,” and that “all entities with a right to advertise on the referenced sign have been notified of the permit cancellation.” In the “Date Sign Removed” field of the form, Mr. Fisher wrote “see below.” In the bottom margin of the form, Mr. Fischer noted that the sign had been destroyed by one of the 2004 hurricanes, and that “new owner rebuilt sign and I removed BK459 tag and enclosed it.” The Cancellation Certification did not provide any information regarding the rebuilt sign or whether it was a sign that required a permit from the Department,2/ nor did it provide the name, address, or other identifying information regarding the “new owner.” It was not clear when Mr. Fischer removed permit tag number BK459, but it was nonetheless removed and returned to the Department with the Cancellation Certification. The Cancellation Certification was not intended by Mr. Fischer to affect Petitioner’s rights or interest in the rebuilt sign, but was a means of stopping renewal bills from being sent to Town & Country Realty. A Cancellation Certification may be conditioned upon issuance of a new sign permit, provided the Cancellation Certification is submitted along with an outdoor advertising permit application. The Cancellation Certification gave no indication that permit tag number BK459 was being conditionally canceled as a requirement for issuance of a new permit, and was not accompanied by an outdoor advertising permit application. On March 24, 2005, permit tag number BK459 was cancelled. From 2005 until June 2014, the rebuilt sign remained in place without inquiry from the Department, during which time Petitioner continued to lease and receive income from the sign. No transfer of or application for a sign permit for the rebuilt sign was filed, and no payment of annual fees was made. No explanation was provided as to why the March 7, 2005, Final Notice of Sign Removal was not enforced, or why the rebuilt sign, which has at all times been clearly visible from U.S. Highway 1, was allowed to remain in place for nearly a decade despite having no affixed permit tag. On or about May 28, 2014, Mr. Johnson, who was on patrol in the area, noticed that the advertising on the rebuilt sign had been changed. The change caught his attention, so he reviewed the Department’s outdoor advertising sign database to determine whether the sign was permitted. He confirmed that the rebuilt sign was not permitted. On June 5, 2014, Mr. Johnson affixed a “30-day green notice” to the rebuilt sign, which provided notice of the Department’s determination that the sign was illegal, and was to be removed within 30 days. Failure to remove the sign was to result in the removal of the sign by the Department. On June 9, 2014, the Department issued a Notice of Violation - Illegally Erected Sign (NOV) to Petitioner for the rebuilt sign. Petitioner did not submit a hearing request regarding the NOV. Rather, Petitioner called the telephone number that was listed on the NOV. He spoke with someone at the Department, though he could not remember who he spoke with. Petitioner was advised to file an application for the sign, a remedy that is described in the NOV. On December 1, 2014, Petitioner submitted Outdoor Advertising Permit Application Nos. 61203 and 61204 for the northward and southward faces of the Current Sign at milepost 18.535. Petitioner subsequently submitted additional information, including local government approval, in support of the application. On December 18, 2014, the Department issued a Notice of Denied Outdoor Advertising Permit Application for application Nos. 61203 and 61204 (“notice of denial”) to Petitioner. The bases for the notice of denial were that the property’s tax identification numbers submitted in various parts of the application did not match, thus constituting “incorrect information” in the application, and that the rebuilt sign is located on a designated scenic highway, thus prohibiting issuance of the permit. In the Pre-hearing Stipulation filed by the parties, the Department, though referencing “incorrect information” as a basis for the December 18, 2014, notice of denial, concluded its statement of position by stating that “[i]n sum, the Department properly denied [Petitioner’s application] as the sign is located on a scenic highway.” That focus on the scenic highway issue in the Pre-hearing Stipulation could, of itself, constitute a waiver and elimination of other issues, including that of incorrect information. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). However, looking beyond the Pre-hearing Stipulation, the issue of incorrect information was not the subject of testimony at the final hearing, finds no substantial support in the documentary evidence, and made no appearance in the Department’s Proposed Recommended Order. The record in this proceeding does not support a finding that Petitioner provided “incorrect information” in his application, or that such “incorrect information” supports a denial of the application. On February 12, 2015, Petitioner filed a request for an informal administrative hearing with the Department to contest the notice of denial. The request for hearing included affidavits from Petitioner and Henry A. Fischer, a vice-president of Town & Country Realty, each of which provided that Town & Country Realty “submitted to the governmental authorities included but not limited to the Florida Department of Transportation notice of the transfer of the property and the sign permit to Mr. Daddano as well as his correct mailing address of 15 Lakeside Lane, N. Barrington, IL 60010.” It is not known whether the N. Barrington, Illinois, address was that of Mr. Fischer or that of Petitioner. Regardless, no such notice of transfer, or any other document bearing the referenced address, was introduced in evidence or discussed at the final hearing. The preponderance of the evidence indicates that the March 22, 2005, Outdoor Advertising Permit Cancellation Certification, with the notation described in paragraph 30 above, was the only notice provided to the Department regarding the disposition of permit tag number BK459. By June 4, 2015, the advertising copy that caught Mr. Johnson’s attention had been removed and replaced with a “This Sign For Rent” covering. By no later than November 17, 2015, well after the Department issued the notice of denial, and without any other form of approval or authorization from the Department, Petitioner had the rebuilt sign “pivoted” in roughly its existing location, so that it is now parallel to U.S. Highway 1. As such, only the side of the sign facing U.S. Highway 1 is visible from the highway, making it a “one-way reader” as opposed to a two-sided sign. Nonetheless, unlike the original one-sided sign, which was perpendicular to the highway against a backdrop of vegetation, the pivoted rebuilt sign can be seen by traffic traveling in either direction on U.S. Highway 1.3/
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order denying Outdoor Advertising Permit Application Nos. 61203 and 61204. DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 27th day of April, 2016.
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.
Findings Of Fact Petitioner owns the sign located 186 feet West of Mulberry Point, Citrus County, Florida. Petitioner also owns the property on which the sign is located. The sign advertises a community development which Mr. Infantino is developing. The sign is important to his business. The sign is located on a parcel of real estate adjacent to State Road 44. State Road 44 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to sign's erection. The sign was originally erected in 1980 or 1981. Mr. Infantino had the sign erected by a professional sign company. At that time, the area in which the sign is located was zoned commercial by the county. 1/ No state sign permit was obtained by either Mr. Infantino or the company that erected the sign. Mr. Infantino was not aware of the state sign permit requirement and, therefore, the sign has never been permitted in the nine or ten years of its existence. In 1986, the area in which the sign is located was rezoned by the county. The new designation given by the county to the area was Coastal Lakes - 2, an environmentally sensitive area with a primarily residential use. However, the County allowed the sign to remain as a non-conforming structure. The evidence failed to demonstrate whether there were at least three (3) businesses within 1600 feet of Petitioner's development. Additionally, the evidence did not demonstrate that the surrounding area was primarily commercial in its use or was customarily used in a commercial character. 2/ In 1989, after nine or ten years of the sign's existence, an unnamed DOT inspector discovered the sign involved in this case. The late discovery was never adequately explained at the hearing. However, upon its discovery, the sign was determined not to have a state permit. Mr. Infantino was cited for the violation in a Notice to Show Cause issued by the Department. In response to that Notice, Petitioner filed a permit application with Respondent. The application was reviewed and denied primarily because the area in which the sign was located was not currently zoned commercial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's application for a permit to erect and maintain a sign on State Road 44, on real estate located at Section 8, Township 19, Range 21, Parcel 12200, in Citrus County, Florida, be denied. DONE and ENTERED this 3rd day of February, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1990.
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact In August of 1995 Champion International Corporation gave Petitioner permission to place a sign advertising The Outpost on property that Champion owned in Walton County. The sign was to be located at the corner of the south side of State Road 20 and Black Creek Boulevard. State Road 20 is a federal-aid primary road. Black Creek Boulevard is a county maintained road. Petitioner subsequently erected a 4' X 8' outdoor advertising sign on Champion's property. The sign was located on the south side of State Road 20, two miles east of U. S. 331 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. The sign was double-sided with east and west faces. On September 1, 1995, Petitioner filed an application with Respondent requesting a permit for the 4' X 8' sign already erected on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. On September 22, 1995 Respondent issued a Notice of Denied Application informing Petitioner that it could not have a permit for a sign on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. Respondent denied this permit for two reasons: (a) the location was zoned "agricultural" which was an un-permittable land use designation; and (b) the proposed sign was located on the state's right-of-way. After receiving the Notice of Denied Application, Petitioner removed the 4' X 8' sign. On or about January 29, 1996 Petitioner filed a sign permit application with the Walton County Building Department. The application was for an off- premises sign to be located fifty (50) feet south of State Road 20 along Black Creek Boulevard. The application states that: If the proposed sign is located along a federal aid primary road, a permit from the Florida Department of Transportation (904/638-0250) must be obtained before a Walton County building permit is issued. The applicant must obtain a letter from Walton County to submit to the Department of Transportation to submit with the application. Petitioner did not apply for a permit from Respondent for this proposed sign. The Walton County Building Department issued Petitioner a permit to erect the proposed sign on January 29, 1996. Petitioner subsequently erected a second sign on the south side of State Road 20, one foot off of the right-of-way, and about fifty (50) feet from the intersection of State Road 20 and Black Creek Boulevard. It was 8' X 8', two-sided, mounted in concrete, with red, black and white copy advertising The Outpost on both sides. The sign was placed so that it could be read by east and west bound traffic along State Road 20. Only the east face of the sign could be read from Black Creek Boulevard. The subject sign was located within 660 feet of the right-of-way of State Road 20. It did not qualify as an on-premise sign because the Outpost RV Park was located two miles away. Respondent never received a permit application from Petitioner for the 8' X 8' sign. There was no material difference in the location of Petitioner's previously removed 4' X 8' sign and the new 8' X 8' sign. On May 13, 1996 Respondent issued Notice of Violation No. 10BME1996110 to Petitioner for the west facing of the 8' X 8' sign. Respondent also issued Notice of Violation No. 10BME1996111 to Petitioner for the east facing of the same sign. Each Notice of Violation contained a location description for a sign which was the same as the location description contained in Petitioner's previously denied sign permit application. The basis for both violations was that neither sign had the permit required by Section 479.07(1), Florida Statutes. The notices directed Petitioner to remove the sign structure within thirty (30) days. Respondent subsequently removed the 8' X 8' sign because Petitioner failed to do so within the prescribed time. Respondent's right-of-way on the north and south side of State Road 20 is the area that Respondent maintains which is approximately fifty (50) feet. Respondent's right-of-way map showing the maintained area is available to the public at Respondent's Right-Of-Way Office. In the past, Petitioner erected other signs along U. S. Highway 331 without obtaining a permit. Respondent issued a permit for at least one of these signs after Petitioner filed the appropriate application. Respondent required Petitioner to remove any sign that was not eligible for a permit. Respondent's inspector issued more than ten (10) notices of violation to owners of other outdoor advertising signs in the same general vicinity as Petitioner's 8' X 8' sign on May 13, 1996. These signs have been removed. There is a Reddick Fish Camp sign located on the south side of State Road 20 and west of the intersection of State Road 20 and County Road 3280. That sign is located six miles from the sign at issue here. Another sign has been nailed to a tree three-quarters of a mile west of the subject sign. There is insufficient evidence to determine whether these signs are illegal because they do not have a permit. There is no persuasive evidence that Respondent issues violations to Petitioner when it erects an off-premises sign without a permit but allows illegal signs of other property owners to exist without issuing similar notices of violation. Even if Petitioner had filed a permit application for the sign structure at issue here, it would have been ineligible for issuance of a permit because the location's land use designation was agricultural. If the property had been zoned commercial or industrial, Petitioner would have been required to have a permit because the sign did not qualify for any exceptions to Chapter 479, Florida Statutes.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order finding that Petitioner erected a sign with two faces in violation of Section 479.07(1), Florida Statutes. DONE and ENTERED this 17th day of December, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Paul T. Davis 4576 Highway 3280 Freeport, Florida 32439 Andrea V. Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transporation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent's outdoor advertising permits BU 839 and BU 840 became void pursuant to the provisions of Section 479.07(5)(a), Florida Statutes.
Findings Of Fact On August 18, 1998, Petitioner issued valid state outdoor advertising permit numbers BU 839 and BU 840 to Respondent for a sign with two faces, one facing north and the other facing south, to be erected at a specified location on the west side of State Road 5, 2000 feet north of PGA Boulevard in Palm Beach County, Florida. Section 479.07(5)(a), Florida Statutes, provides, in pertinent part, as follows: . . . If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. 1/ Petitioner adopted the following definition at Rule 14- 10.001(2)(c), Florida Administrative Code, on June 28, 1998: (c) "Completed Sign", for the purposes of Section 479.07(5)(a), Florida Statutes, means the erection of the sign structure as described in the permit, as well as attachment of the facing to the structure, and the posting of a message to the facing. Petitioner asserts the permits became void by operation of law on May 16, 1999, because that date is 271 days from August 18, 1998, the date the subject permits were issued. As of May 16, 1999, no completed sign had been erected by Respondent on the permitted site as the term "completed sign" has been defined by Rule 14-10.001(2)(c), Florida Administrative Code. Petitioner notified Respondent on May 21, 1999, that the subject permits were void. No representative of Petitioner misled or lulled Respondent into inaction at any time pertinent to this proceeding. Palm Beach County, the local permitting agency, requires a "Special Permit" before an outdoor advertising sign can be erected within its jurisdiction. Respondent applied for such a Special Permit for the subject signs on March 10, 1998. Palm Beach County issued Respondent a Special Permit for the subject location, but imposed a special condition, to which Respondent agreed. The special condition required Respondent to remove one of its other signs worth approximately $100,000. In addition to the Special Permit, Respondent was required to obtain from Palm Beach County a building permit for this project. That building permit was issued May 14, 1998. Respondent applied to Petitioner for the two permits that are at issue in this proceeding on May 18, 1998. On June 16, 1998, Petitioner denied Respondent's application on the grounds that additional information was needed. After the additional information was supplied, the subject permits were issued on August 18, 1998. On November 15, 1998, Respondent finished the site work that had to be done before the sign could be constructed. The Palm Beach County building permit expired 160 days after it was issued. Respondent secured the renewal of that permit on January 20, 1999. Petitioner placed orders for the sign construction in February 1999. The structural components arrived at the permitted site on April 5, 1999. Between April 5 and April 9, 1999, a 25-foot deep hole was dug, into which the 47-foot long, 4-foot diameter steel monopole was lowered by crane, and six tons of concrete were poured to construct a foundation and support for the sign superstructure. On April 9, 1999, Palm Beach County approved the final inspection of the excavation and foundation. On April 13, 1999, the superstructure of the sign was lifted onto the steel monopole by crane and installed, thereby completing construction of the two-faced sign. 2/ The cost of this construction totaled approximately $50,000. On April 14, 1999, Palm Beach County issued a stop work order (red tag) to Respondent for failure to post permit and plans at the job site and because a subcontractor blocked traffic with a crane that was being used to erect the sign structure. This red tag prevented Respondent from doing any further work on the two-faced sign. Had Respondent violated the red tag, it would have been exposed to a civil penalty of $250 per day and misdemeanor charges. Shortly after it learned that a red tag had been issued on April 14, 1999, representatives of Respondent met with Palm Beach County building officials and disputed their rationale for the red tag. Believing that the red tag issue with Palm Beach County had been resolved, Respondent entered into contracts with advertisers for the respective faces of the two-faced sign, one on April 22 and the other on May 11, 1999. It would have taken less than a day to install advertising copy on these signs. Palm Beach County did not lift its red tag on these signs until July 21, 1999. On August 9, 1999, Palm Beach County approved the two-faced sign on final inspection. Respondent placed advertising copy on both faces of the sign on August 9, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that applies the doctrine of equitable tolling and declares permits BU 839 and BU 840 valid. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 28th day of December, 1999.
Findings Of Fact Chapter 479 and the rules promulgated pursuant to that chapter establish the authority for Petitioner to regulate outdoor advertising in Florida. This regulatory function includes signs which are located on Interstate 75 in Florida. Interstate 75 is part of the interstate highway system in the United States as defined in Chapter 479, Florida Statutes. Respondent is in the outdoor advertising business and is subject to the requirements of Chapter 479, Florida Statutes. All signs which are in dispute in these cases are located adjacent to Interstate 75 in Alachua County, Florida and are or were owned by Respondent at all relevant times. The signs within the relevant time frame associated with this dispute could be seen from Interstate 75. Bartley Burch is a property and outdoor advertising inspector who routinely inspects the signs in question on a weekly basis. During the roughly three years which he had been performing inspections in the area in question he had inspected the seven signs a minimum of 200 times. His inspection schedule for the signs was on a weekly basis. His inspections led to the citations of those signs belonging to the Respondent. The basis of the citations are described in the Statement of the Issues. The citations date from July 18, 1990, based upon inspections performed July 12, 1990. The citations were received by Respondent on July 23, 1990. As described, Respondent having served the citations, this prompted the formal hearing. The sign in 5871T is located on Interstate 75 North, 22.4 miles north of the Marion County line. It advertises the Red Lobster restaurant. It is depicted in the photographs consisting of Petitioner's exhibits 2 and Respondent's exhibits 2A through 2C. Concerning the complaint, Burch discovered what he considered to be a lack of permit through his inventory or inspection activities that are routinely performed mentioned before. In conducting these inspections Burch used a computer printout issued by Thomas N. Brown, district outdoor advertising administrator in the Petitioner's district where the subject signs were found. That printout indicates the sign location and whether the signs are permitted or not. The printout also includes signs which Chapter 479, Florida Statutes, describes as nonconforming signs. The sign in 5871T did not show up on the computer printout as having been permitted. Burch does not recall that a permit tag was attached to the sign in 5871T. In addition to checking his printout Burch contacted Petitioner's Tallahassee office to see if that office had any record of a permit being issued to the sign in 5871T. He was told that the Tallahassee records did not reflect a permit issuance. From the tenor of his remarks, Burch also examined records in the district office where he works to ascertain whether a permit had been issued for the sign in 5871T. Those records dated back to 1987. They did not reveal the issuance of a permit. In his contacts with the Tallahassee office of Petitioner, he did not determine how far back in time those records went. Neither did he go to Tallahassee to examine the records which were held by the Petitioner on this subject. The methods of looking at his inventory list, available information at the district level where he works and contacts with Tallahassee, in Burch's attempts to ascertain whether permits had been issued were the same in 5873T and 5876T as they were in 5871T concerning the basic methods which Burch employed to find out if permits had been issued for the latter two signs. The sign in 5873T is at Interstate 75 North at mile 5.93. It is a Red Lobster advertisement. It is depicted in Petitioner's exhibit number 2 and Respondent's exhibits numbers 2A through 2C, photographs of the sign. The photographs taken of this sign and all other signs which are Petitioner's exhibits were made by Burch on July 12, 1990. The photographs which are Respondent's exhibits were made by Andrew Wayne Lee on August 23, 1990. In 5873T a permit tag is not attached to the sign or any of its supporting posts. Burch noted at hearing that if an application was made at that point in time to have a new permit issued it would not be approved because of a spacing problem. In 5876T, the sign in question is a Red Lobster advertisement. The sign is at Interstate 75 South at mile 3.49. Petitioner's exhibit number 2 and Respondent's exhibits 2A through 2C are photographs of the sign in 5876T. The Respondent's photographs depict attached permit tags. The details of those permit tags may not be discerned by examining the photographs. Burch had no recollection of those tags at the time that he made his inspection. His attempts to determine if a permit had been issued for this sign are as previously described. These attempts did not lead to the confirmation that a permit had been issued. In 5872T, the sign is at Interstate 75 North at mile 23.46. Petitioner's exhibit number 2 and Respondent's exhibits 2A through 2C are photographs of the sign. They depict a blank sign face which has been painted. At no time during the inspections which Burch made did he observe any advertising on the sign face. The sign had been painted before the formal complaint was made concerning the allegation of being void of advertising for 12 months or longer. The sign had a permit tag attached dating from 1974. It is classified as a nonconforming sign. In addition to the date of the permit tag being 1974, the spacing which Burch measured pointed out that the sign was nonconforming. According to Burch, the sign at 5872T became void of advertising approximately two years before the hearing date. What he meant was whatever was on the sign was not legible to Burch. What the witness said was that approximately two years ago is when he noticed that he was unable to read the message on the signboard even though there was something written there. That is the reason why he began to believe that it was void of advertising. Legibility to Burch means that the message is dilapidated, faded or the paint pealing off, things of that nature. He is unaware of any policy by the Petitioner by way of a memorandum which sets out standards of what it means to be void of advertising as a definitional matter. From the record there does not appear to be any standards by Petitioner which further describe the meaning of void of advertising beyond what is stated in Rule 14-10.007(2)(e), Florida Administrative Code. In 5874T the sign in question is at Interstate 75 North at mile 21.79. It is depicted in Petitioner's Exhibit 2A and B and Respondent's Exhibits 2A-C, photographs of the sign. Unlike the situation in 5872T, this sign does have information which is portrayed; however, the message that is being presented is unclear. In his inspections Burch has never viewed advertisement that he considered legible. His statement of legibility equates to the notion of clarity evidenced by the photographs referred to. The sign also had a spacing problem and was nonconforming for that reason. Again, this sign had been void of advertising in terms of legibility for approximately two years before the hearing date, according to Burch's observations. In 5875T the sign in question is located at Interstate 75 North at mile 22.39. The sign is depicted in Petitioner's Exhibits 2A and B and Respondent's Exhibits 2A-C. This sign is in disrepair in that some of the panels are missing. The sign while it contains writing is unclear in its message or lacking in legibility when observing the photographs. Respondent's Exhibits No. 2A and B show permit tags affixed. Those tags cannot be read as to their contents concerning dates upon which the permit tags were issued. Burch confirmed that the sign was void of advertising for over 12 months by making weekly inspections. The sign in question is nonconforming because of spacing problems. In 5877T the sign in question is at Interstate 75 South at mile 3.44. This sign is depicted in Petitioner's Exhibit No. 2 and Respondent's Exhibit No. 2A-2C. The photographs show that the sign has been painted and has no message portrayed. Respondent's Exhibit No. 2B shows certain tags affixed. The uppermost tags on the pole bear dates of 1973 and 1974. This sign had been painted before the complaint was issued concerning the alleged violation. The sign is a nonconforming sign based upon spacing problems. No prior action had been taken concerning the signs that have been discussed, as Burch understands it, based upon the Petitioner's policy of not filing complaints against a Respondent unless the process may be concluded by removing the signs that are offending. Brown supervises Burch. He rides Interstate 75 and conducts periodic inspection or inventories in the same areas where his inspectors perform their duties. This had made Brown familiar with the signs in question. As Brown describes it, if there is no permit tag, and the inventory related to signs based upon computer records at the district level don't include questioned signs, resort is made to the records in Tallahassee to ascertain whether a permit exists for a questioned sign. If the records checks locally and in Tallahassee do not reveal that a permit was issued then the district officials conclude that the sign is illegal. Alternatively, at times the sign owner may have records which will verify the existence of a permit and that would be available to the Petitioner. Copies of applications for permits are available to Brown and in the absence of an approved application this is further evidence that the permit was not issued. It may also be evidence that the approved application has been lost. At the end of each year a list of signs held by companies such as that of the Respondent is prepared and sent to the sign owner for billing purposes, the collection of fees. This gives an indication of permits that are held by the sign owner and the sign owner assists in verifying the ownership by remitting annual fees to pay for the sign operation and through such remittance clarifying the status of permitted signs which are held by that vendor. As Brown describes, Petitioner also becomes aware of the status of signs through transfers of permit tags from one owner to another related to a given sign. Brown employed general methods for researching the question of whether a permit had been issued for the questioned signs as was described before. In particular related to 5871T, 5873T and 5876T he checked for original applications and could find none. He called Tallahassee and tried to get research information from Tallahassee concerning permits being issued and was unable to find any information. He went through old filing cabinets at the district level and found nothing. This search in the filing cabinets was a manual search in addition to the computer search which he had made at the district level. None of these attempts led to verification of a permit being issued for the signs in question. There was information which suggested that the signs may have been in violation as far back as 1983. He did find one permit that had been issued related to 5871T, that permit belonged to the National Company for a Manatee County sign. It was not for a permit for the Alachua County sign owned by Respondent. The 1971 permit tag belonging to National can be seen in the photographs by Respondent, his Exhibit No. 2. That same tag number is referenced in an affidavit requesting a new tag permit for a loss permit that relates to that location and is found as Petitioner's exhibit number 3 admitted into evidence. It was submitted on August 6, 1990 and will be further discussed in describing the testimony of Andrew Wayne Lee at hearing. The computer records at the district level at times include unpermitted signs as well as those that have permits. This is not an indication that a permit had been issued for the sign upon some former date. Mr. Brown believes that the idea of a sign void of advertising is a sign which has no copy on the sign, an example is a sign that is painted blank for a period of one year. In 5874T Brown recalls this sign as being void of advertising for five and a half years, this is taken to mean illegible. When shown the photographs depicting the sign in 5874T he described that sign as looking the same way as depicted in the photographs for a period of five and a half years. He said that in driving 55 or 60 miles an hour he could not read what was on that sign. He also remarked that in 5875T he couldn't read some of the letters in that sign well enough to tell what was written. Brown described the speed limit in the area of the signs in question as being 65 miles per hour. His representation is accepted. Brown describes the fact that when the owner of the signs do not pay the annual fees the signs are found in violation and a "take down" order is issued. In making his record search to discover whether the signs which were charged with having no permit had ever been recorded as permitted, Brown indicated that the records of the Petitioner went back as far as 1971 but that they were not complete. This incompleteness as to some of the records refers to the absence of a paper record or a computer entry record. Brown acknowledges certain contacts with Respondent or members of his family. He does not recall that Respondent or members of the family were requested to submit Respondent's proof of permitting for the three signs that are the subject of a claim that no permits were issued for them. Notwithstanding this lack of inquiry, the hearing presented the opportunity for the Respondent to submit any information it had regarding the matter of permits being issued for those three signs in defending against the allegations. In the annual billing lists which are submitted to the vendors such as Respondent, they include properly permitted signs or signs in good standing as well as signs that are considered in violation. The idea of in violation would include the problem of not having permits issued for the sign. This is borne out by Respondent's exhibit number 4 which is a billing list which Respondent had which refers to the three signs in question for which permits are said to be lacking. For that reason permit numbers are not found on that page of the exhibit which describes the signs. Andrew Wayne Lee, son of Respondent described how he is in the cattle business, the outdoor advertising business and that he buys and sells properties. He says his family has been in the outdoor advertising business since about 1965. His involvement in the outdoor advertising business has been more extensive in the last three or four years. He became involved because his father was diagnosed as having Alzheimer's disease in or around April or May of 1985. Before that date the son had very little participation in the outdoor advertising business. Respondent's son made an attempt to find records which would verify the status of the signs in question, especially those which Petitioner claims to not have permits. He describes that a number of records concerning the outdoor advertising business had been stored in a family residence around 1972 and in 1981 an accidental fire occurred and those records were burned up. He says that other records were put in different places by his father and that he is unable to converse with his father about where those additional records may be found given his father's illness. Lee points out in 5871T, the photograph Respondent's 2B showing the 1971 tag permit. As stated that tag permit is the incorrect tag permit for the sign. In 5873T, Respondent's 2A and 2C show markings on the pole where permit tags were probably affixed, according to Lee. Unfortunately it is unclear what happened to those permit tags and whether they were the appropriate permit tags for the sign at the time they were affixed. It may well be that they were the inappropriate permit tags as was the case of the 1971 permit tag which was affixed to the sign in 5871T at the time Lee took photographs on August 23, 1990. In 5876T Lee refers to Respondent's exhibit 2C which shows two permit tags. He did not describe the idea that these two permit tags were the appropriate permit tags for the sign in question. He made no mention of those permit tags when he attempted to obtain a new permit tag for that sign by submission of an affidavit on August 6, 1990 as depicted in Respondent's exhibit number 3 in 5876T. It is unexplained why Respondent in making an affidavit in furtherance of its attempt to gain a new permit tag for the sign in 5876T would not refer to the older permit tags affixed to the sign and their numbers in an attempt to verify that a permit had been issued in the past. On the other hand, resort to that information found on the preexisting permit tags located on the sign post would be unavailing if they were not associated with that sign when they were issued or if they could not be cross-referenced with the older records held by the Petitioner that established the permits on the signpost as being related to the sign in question. Neither party made connection in the record between the permit tags on the sign post and the idea of a permit having been issued specifically for that sign at that location. In his attempt to bring the signs in compliance by making affidavits seeking the reissuance of a tag permit for the three signs in question where Petitioner claims permits did not exist, Lee described his methods. Having found no record held by Respondent which would describe the issuance of permits for those three signs, in preparing the affidavit in 5871T, he used a 1971 permit tag number that was found on the sign because it was the only number he had available. He was hopeful that the Department could use that as some sort of cross reference to verify the existence of a permit. He believed the three signs were permitted, but felt that he had no means of tracking down the proper numbers. In addition to searching the records held by Respondent he went up and down the road trying to ascertain the appropriate permit numbers. Lee also went to Tallahassee and examined Petitioner's files. He noted that the amount of records concerning the activities of his father in the outdoor advertising business, which is much more extensive than the seven signs in question, were not the same as on other occasions when he and his father had visited the Petitioner's office in Tallahassee. This refers to records held by the Petitioner. The comparison of what he saw on the occasion of his attempt related to the present cases and what he found on trips made by Lee and his father differed in that on prior occasions he found considerably more material than he found on the latter trip. In describing the permit affidavit for obtaining a new permit tag in 5871T, Lee describes this as having been involved in an agreement with Peterson Outdoor Advertising. This is in addition to his remarks about the use of the 1971 tag which have been stated before. The significance of this swap agreement, if one existed with Peterson Outdoor Advertising, as it relates to the question of an appropriate sign permit having been issued in 5871T was not explained in the hearing. In 5873T, as with 5871T and 5876T Lee prepared an August 6, 1990 affidavit requesting a new tag permit. This is found in Respondent's exhibit number 3 in case number 5873T. The several affidavits submitted in an attempt to gain new permit tags for the three signs Petitioner claims do not have permits were rejected. All affidavits were returned. In summary, Lee believes that the three signs in question had permits issued but has no proof from any source which would confirm that belief. In the signs which are the subject of the claims of being in jeopardy for reasons that they are void of advertising, the signs in 5874T and 5875T have been removed by Petitioner. The signs in 5872T and 5877T have been painted but have not been leased given the pendency of these proceedings. Robert Still is construction manager and supervisor for Respondent. He has worked for that concern for over 18 years. Still describes the painting of the signs at 5872T and 5877T in June of 1990. The sign in 5872T had copy related to McDonald's and the sign related to 5877T had copy related to Sonny's Bar-B-Q before they were painted over in the blank color described in the photographs. Still offered no comments concerning the legibility of the McDonald's copy in 5872T and the Sonny's Bar-B- Q copy in 5877T before that copy was painted over in June, 1990. Still's relationship with the Respondent's company did not extend to being responsible as records custodian for information associated with permit issuance and permit renewal fees. He expresses, as did Lee, the belief that the three signs in question were permitted at one time or another but has no records to verify this belief. He does recall placing permit tags on the signs in question. In 5876T he makes mention of the fact of the older permit tags which are shown in the photographs by Respondent. He states that the sign in 5871T had a permit at one time which was a 1974 permit. This was as distinguished from the 1971 permit which was found on that sign on August 23, 1990 depicted in Respondent's photographic exhibit. Still has worked with the sign in 5871T for about 12 years; the sign in 5876T for 12-14 years and the sign in 5873T since 1973. In spite of the remarks by Lee and Still concerning their belief that permits had been issued for the signs in 5871T, 5873T, and 5876T, on balance based upon the record and the facts found herein, permits were not issued for those signs.
The Issue The central issues in this case are whether Petitioner knowingly submitted an application with false or misleading information for the purpose of securing sign permits and, if so, whether the sign permits should be revoked.
Findings Of Fact Petitioner owns a parcel located in Brevard County, Florida, upon which it desires to construct a sign with two sides (one facing north, one facing south). The parcel is located at 4121 Norfolk Parkway, West Melbourne, Florida, and is adjacent to Interstate 95 (I-95). Respondent is the state agency charged with the responsibility of regulating outdoor advertising located within 660 feet of the state highway system, interstate, or federal-aid primary highway system. It is undisputed the parcel owned by Petitioner together with the proposed two-sided sign falls within Respondent’s jurisdiction and is adjacent to I-95. The application process for sign permits follows a specified course to assure the applicant submits all requisite information and the parcel meets the statutory guidelines. In this case, Petitioner submitted not fewer than three applications for the desired permits. Each side of the proposed sign required a permit and each permit required an application. Each of the first applications was rejected and returned to Petitioner for reasons specified by FDOT. Among the reasons Petitioner’s applications were rejected were: the applicant did not answer all questions on the applications completely; the forms were not notarized; the applications did not have a signed statement from the local government official indicating the land use designation of the parcel; and the parcel identification numbers did not match on all documents. On December 17, 2012, Petitioner completed and had notarized one or two applications for the sign permits. Only one application for each side (dated December 17, 2012) was received by Respondent. Those applications indicated the zoning for Petitioner’s parcel as commercial parkway district, an acceptable zoning for the approval of a sign permit. In truth, however, Petitioner’s parcel is zoned residential. Respondent considered the applications dated December 17, 2012, complete but they contained an error other than the incorrect zoning that needed to be corrected. Based upon that error, FDOT issued a Notice of Denial and returned the paperwork to Petitioner to have the correction initialed. Once the applications were initialed, Respondent approved the applications and issued permit numbers 56284 and 56285. The applications submitted by Petitioner did not have the correct parcel identification number. Based upon the parcel identification number on the approved applications, the sign would be constructed on a parcel not owned by Petitioner. At all times material to this case, Petitioner represented it owned the parcel upon which the sign would be constructed. The parcel identified on the approved applications is correctly zoned for an outdoor advertising sign, but Petitioner’s parcel may not be. Petitioner has never intended to construct a sign on the parcel identified by its applications. Petitioner knew on December 17, 2012, that it had submitted applications with an incorrect parcel identification number. Petitioner knew on December 17, 2012, that the zoning for its parcel was residential not commercial. When Petitioner received the documents subsequent to the Notice of Denial (identified in paragraph 6), it did not correct the parcel number or advise FDOT that the parcel number was incorrect. Although the parcel numbers now matched for each section of the applications, the number related to a parcel owned by West Melbourne Holdings, II, LLC. Petitioner has no interest in West Melbourne Holdings, II, LLC. As a result, Petitioner did not accurately represent the zoning for the parcel it owns and upon which it sought to construct its sign. FDOT relies on the information submitted by applicants to determine whether a parcel is eligible for a sign permit. If an applicant submits false information, Respondent takes action to revoke a permit that was based on false information. In this case, Petitioner began to construct a sign on its property and another sign company (Petitioner’s competitor) notified FDOT that Petitioner was constructing a sign in an inappropriate location. Upon receipt of the complaint, FDOT began a review of Petitioner’s applications and discovered the applicant did not own the parcel that was approved for the sign. Although Petitioner had submitted an accurate street address, the parcel for which the sign permits were issued was not owned by Petitioner. Additionally, FDOT discovered a zoning discrepancy that would not allow approval of permits for Petitioner’s parcel. Had Petitioner submitted the correct zoning information for its parcel, the applications may not have been approved. Petitioner maintains that inaccuracies on its applications were inadvertent and unintentional. Petitioner argues it never knowingly submitted incorrect or misleading information. Having weighed the credible evidence submitted in this cause, such argument has been rejected. To the contrary, Petitioner knew the parcel number submitted on the applications dated December 17, 2012, was false. Petitioner knew the zoning for its parcel was residential. Petitioner did nothing to correct the errors after they were known and before the permits were issued. An applicant has an affirmative duty to submit truthful, accurate information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order revoking the permits for the subject sign. DONE AND ENTERED this 2nd day of October, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 2nd day of October, 2013. COPIES FURNISHED: Gary B. Frese, Esquire Frese, Hansen, Anderson, Anderson, Heuston and Whitehead, P.A. Suite 301 2200 Front Street Melbourne, Florida 32901 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Trish Parsons, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
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 sign permit dispute, Petitioner, Department of Transportation (DOT), seeks to revoke the permit for an off- premise outdoor advertising sign owned by Respondent, North Florida Pecan 1 & 2, Inc. (Respondent), on the grounds that the original sign was destroyed by a fire in June 1998, the newly rebuilt sign has lost its nonconforming status, and any rebuilt sign is now illegal. In response to these charges, Respondent contends that the fire that destroyed the sign was an act of criminal mischief or arson, rather than an Act of God, and thus the sign still qualifies for a nonconforming status. The sign in question is located 12.2 miles north of the Flagler County line on the west side of Interstate 95 (I-95) facing south, and is perhaps a mile or so south of the intersection of State Road 207 and I-95 (intersection) in St. Johns County, Florida. Respondent does not own the property where the sign is located, and it conducts no other business activities on that property. The property on which the sign is located is zoned Open Rural by St. Johns County (County), and it is not designated predominately for commercial or industrial uses by the County under the County's future land use map, comprehensive plan, or zoning ordinances. The sign is used to advertise Respondent's combination gas station and "open-area fruit market" located "just off" the intersection. The parties have stipulated that the sign was originally constructed more than 20 years ago before the current sign regulations became effective; under the present law, it would be a nonconforming sign and illegal. On May 27, 1998, a thunderstorm occurred in St. Johns County, resulting in between one-quarter and one-half inch of rainfall in the area. Due to a lightning strike on a tree, a 2-acre fire started approximately 1,000 feet southwest of the intersection in the vicinity of the sign. Although firefighters believed they had "knocked out" the fire within a day or two, the fire continued to smoulder under the dampened top layer of organic matter for several weeks until June 15, 1998, when it "worked its way back to the surface," broke out again, and cleared the containment line of the earlier fire. Aided by a light wind from the southeast and extremely dry conditions, the fire quickly spread eastward at the rate of 1,000 to 1,500 feet every 15 minutes and consumed several hundred acres, including the land on which Respondent's sign was located, before it was brought under control. That fire is commonly referred to as the Fort Peyton fire. In determining the cause of the Fort Peyton fire, forestry officials could not find any indicators of arson, and visual burn patterns clearly indicated that the new fire's origin was where the May 27 fire had begun. Therefore, it was officially classified as a "rekindle or breakout" of the May 27 fire, which was started by lightning. Put another way, the fire was the result of an Act of God, which is "the sudden manifestation and forces of nature." On either May 30 or June 5, 1998, depending on whether court or forestry records are accepted as being the most accurate, a fire began in Flagler Estates, which, "as the crow flies," lies approximately 12 to 15 miles southeast of the Fort Peyton fire. The Flagler Estates fire, however, was the result of an unattended illegal burn which was started by three individuals and went out of control. The fire was brought under control the same evening by firefighters, but only after some 450 surrounding acres were destroyed. The three individuals were later charged with arson. Respondent established that the prevailing winds during May and June 1998 were from the southeast and that "spoilers" or "floaters" (hot debris) from existing fires can sometimes float in the air and ignite new fires several miles away. Indeed, Respondent's investigator observed spoilers from inland fires floating through the air some 8 or 9 miles out in the Atlantic Ocean while he was fishing during that period of time. Accordingly, Respondent contends that it is just as likely that a spoiler floated northeastward from the Flagler Estates fire on May 30, 1998, and ignited the Fort Peyton blaze, some 12 to 15 miles away. If this theory is accepted, it would mean that the Fort Peyton fire would be attributable to arson, and not to an Act of God. The foregoing assumption has been rejected for several reasons. First, spoilers from the Flagler Estates fire did in fact ignite several spot fires in the area, but all of these spot fires occurred on the same day as the fire started and were within an eighth of an mile from the Flagler Estates perimeter. Second, it is highly unlikely that a spoiler would float up to 15 miles and then lie dormant for two weeks before igniting the Fort Peyton fire. Finally, the theory goes counter to the more persuasive evidence given by the supervising forester who investigated the Fort Peyton fire and concluded that it was an outbreak of the earlier fire that was started on May 27, 1998. After the sign was destroyed, Respondent rebuilt the sign at the same location using substantially the same materials that had composed the sign before it burned. However, the materials used to rebuild the sign were not part of the sign structure which was burned in the Fort Peyton fire. The new sign is the same size, shape, and height of the destroyed sign.
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 North Florida Pecan 1 & 2, Inc., under sign permit number BR 252-55 is illegal and must be removed. The permit should also be revoked. DONE AND ENTERED this 17th day of March, 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 17th of March, 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 J. Stephen Alexander, Esquire 19 Old Mission Avenue St. Augustine, Florida 32084 Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was $1,055.00. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in Brevard County, Florida, be DISMISSED; and it is further RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED. THIS RECOMMENDED ORDER entered this 16th day of October, 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 16th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T 86-0452T Rulings on Petitioner's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact. Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 A. J Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
