The Issue The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location. The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.
Findings Of Fact Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked. DONE AND ENTERED this 11th 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 11th day of May, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street Pensacola, Florida 32503 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
The Issue Based upon the Stipulation and the evidence received, the issue to be determined is whether Bill Salter has the written permission of the land owner to erect the proposed advertising signs.
Findings Of Fact Bill Salter filed an application for the erection of outdoor advertising signs, Exhibit 1, with the Department of Transportation. This application included a lease agreement and diagram of the proposed signs. Subsequently, the Department of Transportation received a copy of the letter addressed to Ronald Lashley of Bill Salter Advertising from W. L. Whisenhant and Luverne Whisenhant, the owners of the property upon which the proposed signs were to be located, cancelling the lease for the erection of the signs. Based upon this information, the Department of Transportation denied the application of Bill Salter. At the hearing a letter dated October 12, 1979, was introduced, which is a grant of permission to Bill Salter Advertising to erect an outdoor advertising sign at the location specified in the original application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application be granted. DONE and ORDERED this 1st day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Bill Salter Bill Salter Advertising Company Post Office Box 422 Milton, Florida 32570
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
The Issue Whether the sign of Petitioner, White Advertising International, should be removed by the Respondent, Department of Transportation, for violation of Section 479.07(1) and Section 479.11(2), Florida Statutes, and the rules and regulations promulgated thereunder.
Findings Of Fact A notice of violation was sent by the Respondent, Department of Transportation, to the Petitioner, White Advertising International, on March 21, 1977, citing an outdoor advertising sign owned by the Petitioner located 1.97 miles west of U.S. #1, State Road 50 E/B with copy "Real Estate Service." The violation noted that the sign violated Section 479.071(1), Florida Statutes, and Rule 14ER77-09 (now Rule 14-10.04) and Section 479.11(2), Florida Statutes, and Rule 14ER77-10, 11 (now Rule 14-10.05 and 14-10.06). There is no dispute as to the location or copy or ownership of the subject sign. It is not in a zoned business, commercial or industrial area and is outside an urban area. The sign does not conform to the current setback requirements. The sign has a permit tag dated 1971, the only permit tag on the sign. No application was alleged to have been made for permit or annual fee paid or offered subsequent to 1971 until the application noted in 4, infra. A sign permit application and annual renewal was processed by White Advertising International dated January 21, 1977. The application was an annual renewal for the year of "19 72-1976." The printed application form stated that, "The signs listed above meet all requirements of Chapter 479, Florida Statutes. Respondent, by its outdoor advertising section administrator, refused to grant the permit on the grounds that the sign which had been erected prior to the enactment of the current setback regulations and probably in the year 1967 had had no application for permit or annual fee paid since 1971 and therefore having become an illegal sign, no permit could be issued. The Petitioner sign company introduced into evidence a letter dated February 28, 1977, from Respondent, Department of Transportation, through its property management administrator which indicated that the State had previously contended the subject sign was built on an unplatted street and had to be removed without compensation but that it was discovered such was not the case and that the State then offered to reimburse Petitioner for relocation costs. Petitioner did not remove the sign and the letter states that the current position of the Respondent State is: That the sign is on the right of way, contrary to Section 339.301, Florida Statutes; Has no current permit; contrary to Section 479.07(1), F.S. Violates Section 479.13, Florida Statutes, as having been constructed, erected, operated, used and maintained without the written permission of the owner or other person in lawful possession or control of the property on which the sign is located; and The sign therefore is an illegal sign and must be removed by Petitioner without compensation. Respondent contends: that the sign is illegal, having failed to be permitted since the year 1971; that it has one pole of the sign pole on the right of way contrary to Section 339.301; that it has no lease contract as required by Section 479.13; that Respondent has no authority to renew delinquent permits; that once a sign becomes illegal a new permit cannot reinstate its nonconforming status. Petitioner, White Advertising International, contends: that it should be granted a permit inasmuch as permits for some signs had been granted by the Respondent although the annual permit fee was not timely made.
Recommendation Remove subject sign if the same has not been removed within thirty (30) days from the date of the Final Order. DONE and ORDERED this 6th day of July, 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 William D. Rowland, Esquire White Advertising International Post Office Box 626 Titusville, Florida
Findings Of Fact State outdoor advertising permits numbered 108 60-10 and 10861-10 were issued in February of 1979, and are now held by Headrick Outdoor Advertising, Inc. These permits authorize a sign on the south side of U.S. 90A, approximately 300 feet west of SR 95A, in Escambia County, Florida. In July of 1985, Lamar Advertising Company applied for state outdoor advertising permits to erect a sign facing east and west on the south side of U.S. 90A, approximately 400 feet east of U.S. 29, in Escambia County, Florida. The location proposed by Lamar in its application is in conflict with the location where Headrick holds permits, in that the two sites are less than 1,000 feet apart. The land where the Headrick signs had been located, and the site where the Headrick permits authorize a sign, has been graded and paved, and is being used as a shopping center. In the course of the construction of this shopping center, the Headrick signs were removed, and Headrick no longer has a lease for its permitted site or permission of the property owner to locate a sign there. Lamar has a lease to the site where it applied for permits. This lease is from the owner of the land, and it grants Lamar permission to locate a sign at the location sought to be permitted, through February, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the state sign permits numbered 10860-10 and 10861-10 held by Headrick Outdoor Advertising, Inc., authorizing a sign on the south side of U.S. 90A, approximately 300 feet west of SR 95A, in Escambia County, Florida be revoked. And it is further RECOMMENDED that the application of Lamar Advertising Company for permits to erect a sign facing east and west on the south side of U.S. 90A, approximately 400 feet east of U.S. 29, in Escambia County, Florida, be granted. THIS Recommended Order entered on this 15th day of January, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 15th day of January, 1987. COPIES FURNISHED: Robert P. Gaines, Esquire P. O. Box 12950 Pensacola, Florida 32576 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Mr. Jim Baughman Vice President Headrick Outdoor Advertising, Inc. 404 Jenks Avenue, Suite "B" Panama City, Florida 32401 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064
Findings Of Fact Emerald applied for an outdoor advertising sign permit for a location approximately 778 feet west of the location for which a permit had previously been issued to Lamar. If the permit previously issued to Lamar were not in spatial conflict with the permit site sought to be used by the Petitioner, the Petitioner's permit could be granted. The Petitioner's proposed site, however, is in statutorily prohibited proximity to Lamar's site, if Lamar's permit is deemed valid. The Department denied Emerald's application because its proposed application was, in the view of the Department, in spacing conflict with the site related to Lamar's permit. The controversy at issue relates to a parcel of land in Destin, Florida, owned by members of the family of Kathleen Jones. Herman Jones owned a portion of the property, and Mildred Castro owned a portion of the property. Kathleen Jones held a life estate to Mildred Castro's portion of the property. Permits were issued to Lamar on June 25, 1981 for a sign at the Jones/Castro site. The sign was erected in August of 1981 and was supported by leases of the real estate involved between Lamar and the Joneses. That sign was maintained continuously until May of 1992. Herman Jones sold his portion of the property in 1992 to Frank J. Roberts and Destin Renaissance, Inc. A survey in conjunction with that sale revealed that the sign was partially on the parcel sold to Roberts and partially on the parcel retained by the Jones family. Lamar, accordingly, moved its sign, since it encroached on the Roberts parcel and executed a release of its lease as to the real estate which Herman Jones had sold to Roberts. Ever since the 1981 erection of the sign, the lease for the site had been between Lamar and Kathleen Jones. It was a written lease and provided for annual renewals. The annual lease payment had been increased in 1985 and again in 1987. On July 27, 1990, the lease was again re-written to increase the annual rental payment. On March 11, 1992, Mr. Roberts sent a letter to the Department's Chipley office stating that he and his corporation had purchased the property from Herman Jones and that he did not have a lease with Lamar. Acting upon that letter, the Department sent a letter to Lamar on April 6, 1993 which stated: This office has received information to the effect that you no longer have permission from the land owner to erect or maintain signs on the South side of US 98, 6.3 miles East of SR 85. The permits numbers are AE678-06 and AE679-06. If, in fact, this information is true and correct the permits issued for these sites are invalid pursuant to Section 479.07(7) Florida Statutes. You are hereby notified that the Department's determination of invalidity will become con- clusive and the subject permit(s) will be revoked unless you elect to challenge this action by requesting an Administrative Hearing pursuant to Section 120.57, Florida Statutes, within thirty (30) days from receipt of this letter. The request should be addressed to: Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 In the interim, if you can furnish documentary evidence of current permission from the present property owner to refute this information, it may be possible to resolve this matter to mutual satisfaction. Lamar replied to that letter on April 15, 1993 stating: We do have landowner permission for the referenced site as evidenced by our recorded lease of 8/07/90 and our amended lease for the same site dated 12/16/92. In addition the referenced tags were replaced by tags BG796-35 and BG797-35 on 2/15/93. This should be substantial evidence to refute any claim that we do not have landowner permission. Please indicate to me in writing the effect this will have on the need for an administrative hearing. In conjunction with the submittal of that letter of April 15, 1993, Lamar submitted a copy of its recorded lease with Herman Jones dated August 7, 1990 and a copy of its lease with Kathleen Jones dated December 16, 1992. Upon receipt of those documents, the Department concluded that Lamar did have written permission from the landowner to erect a sign at a location for which the permits described in paragraph three above were issued. The Department took no further action to revoke Lamar's permit, and Lamar, therefore, did not apply for an administrative hearing. The Department rejected Emerald's application by letter dated February 9, 1993, and Emerald requested an administrative hearing to contest that initial decision. The rejection of Emerald's permit application was due to the fact that the proposed permit was located less than 1,000 feet (778 feet) from Lamar's permit location. The Department took the position that Lamar's permits were still valid because it had provided satisfactory evidence to the Department that it still had landowner permission for the subject Lamar sign, by presenting a valid lease for the property in question, the Jones/Castro parcel.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that the applications of Emerald Outdoor Advertising, Inc. for outdoor advertising permits in Destin, Florida, be denied. DONE AND ENTERED this 1st day of February, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2668T Petitioner's Proposed Findings of Fact Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and as constituting a conclusion of law instead of a proposed finding of fact. Respondent Department's Findings of Fact The Respondent, Department of Transportation, adopts the proposed findings of fact submitted by the Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc. Thus, those proposed findings of fact are accepted. Proposed finding of fact number nine submitted by the Department, in addition to those submitted by Lamar, is rejected as being unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent Lamar's Proposed Findings of Fact The Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc.'s proposed findings of fact are accepted in their entirety as are the facts stipulated to by the parties. COPIES FURNISHED: Martin B. Daniel, Esq. 47 North Third Street Memphis, TN 38103 Robert P. Gaines, Esq. BEGGS & LANE Post Office Box 12950 Pensacola, FL 32576 Paul Sexton, Esq. Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The Department of Transportation ("DOT") originally issued sign permits in 1964 for the location authorized by Permits 3966-2 and 3967-2, and these permits have been renewed continuously thereafter. The location authorized by Permits 3966-2 and 3967-2 is on the east side of U.S. 441. Effective October 30, 1987, Eagle Outdoor Advertising, Inc., which has owned Permits 3966-2 and 3967-2 since 1968 or earlier, transferred them to Peterson Outdoor Advertising Corp. ("Peterson"). On July 10, 1987, Gator Outdoor Advertising, Inc. ("Gator") applied to DOT for sign permits. The location for which Gator sought sign permits is on the same side of U.S. 441, approximately 348 feet from the location authorized by Permits 3966-2 and 3967-2. On July 16, 1987, DOT rejected Gator's application solely because the proposed sign location did not meet applicable spacing requirements relative to the sign authorized by Permits 3966-2 and 3967-2. In 1984, the owner withdrew his permission for maintaining the sign authorized by Permits 3966-2 and 3967-2. There has been no sign lease or owner permission for a sign at this location since 1984. As of the date of the final hearing, Peterson had not obtained the owner's permission to maintain a sign. Representatives of the property owner and a representative of Peterson have discussed the possibility of owner permission, but it had not been unequivocally granted.
Findings Of Fact On or about August 16, 1982, the Respondent, Bill Salter Outdoor Advertising, Inc., filed applications for two permits to erect an outdoor advertising sign in Escambia County, Florida on the west side of I-110, .95 mile north of SR 296. This sign would have one face for northbound traffic and one face for southbound traffic, and would be located outside the city limits of Pensacola. These applications were field inspected by the Department's outdoor advertising inspector, and they were approved by the Department's district supervisor in Chipley. On or about September 20, 1982, the Department issued permits for the requested location to the Respondent. On these applications the Respondent designated that the proposed sign location was in an unzoned commercial area within 800 feet of a business. These applications also certified that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. A sketch attached to the applications showed that the proposed sign location would be adjacent to a business that was designated as Coleman Roofing. When the field inspector visited the site she was aware that an antique business was supposed to be located in the area because it was designated on another outdoor advertising company's application as a business that qualified another sign location as unzoned commercial. This inspector found Hazel's Antiques because there was a sign which said "antiques" and a nearby shed which was visible from the interstate. In continuing to look for Coleman Roofing, she walked up the embankment between I-110 and the subject location until she could see what she determined to be some roofing material stored at one end of the property. She approved the Respondent's applications more on the proximity of the antique business than on the basis of Coleman Roofing. The owner of the property where the antique business was supposed to be is not in the antique business and has never conducted any business activities from this property. She lives there in a mobile home, and no one else has ever been in business on her property. Another outdoor advertising company obtained her permission to place a sign on her property saying "antiques", and there are some antiques in her mother's home, but these are not for sale. A representative from this sign company also took out a county occupational license in the name of this property owner, but she did not apply for this license. The shed seen by the Department's inspector is used for cookouts, and while there is some old furniture outside, it is junk waiting to be carried away. The owner of the property where Coleman Roofing was supposed to be is a self-employed roofer operating out of a trailer in which he lives. He has also worked from his home as a carpenter. He has no business telephone in his home, only a residential listing, and he only does bookkeeping from the dining room of his home. Outside there is a shed where he has kept his boat and an outbuilding with junk and old furniture in it. When he is working on roofing jobs he orders roofing material delivered to the job site. His property is in a residential area, and any leftover roofing material that may be there is awaiting a trip to the dump. As viewed from I-110, there is no indication that any commercial activity is being conducted at the subject location. The nature of the area within 660 feet of the interstate right of-way and within 800 feet of the Respondent's sign is residential. Sometime prior to November of 1984, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued its notice of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AH820-10 and AH821-10, held by the Respondent, Bill Salter Outdoor Advertising, Inc., authorizing a sign on the west side of I-110, .95 mile north of SR 295, in Escambia County, Florida, be revoked, and the subject sign removed. THIS RECOMMENDED ORDER entered this 12th day of September, 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 12th day of September, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire P. O. Box 12308 Pensacola, Florida 32581 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Marilyn Bethel owns Tract B of Unit 3 in Indian River Estates in St. Lucie County, Florida [hereinafter referred to as the Property]. On or about May 14, 1988, Bethel entered into a lease agreement with Respondent. The agreement, which was signed by Bethel and Respondent's Secretary Treasurer, Richard Pozniak, provided as follows: The undersigned lessor, his [sic] heirs or assigns, in consideration of the annual sum of TWELVE HUNDRED (1,200) Dollars paid by AD-CON OUTDOOR ADV., INC., its heirs or assigns, hereafter known as Lessee, hereby grants to it or assigns the exclusive right to use and occupy the premises known as, [the Property] space for a south facing sign[,] for the purpose of constructing and maintaining advertising displays and devices, including necessary equipment for a period of Year to Year years from 6/1/88 19 . First option to lease both North and South facing locations will be granted to the Lessee by the Lessor for the above mentioned location at the termination date of the Lease drawn between the Lessor and National Outdoor Adv due to expire in [sic] April 1, 1989, for an additional 1,200. Total due will be $2,400. It is further agreed: In the event said property is to be improved by the erection of a permanent building, the agreement may be cancelled by giving sixty (60) days written notice to the Lessee prior to the commencement of construction. If the title passes from the present owner, this agreement may be cancelled by giving sixty (60) days written notice to the Lessee. In either case, the Lessee shall be refunded all unearned prepaid rental. The right is given to the Lessee to cancel this agreement by giving sixty (60) days written notice if the advertising value of the premises is diminished by any law or regulation, obstruction of view, or change of traffic. The Lessor agrees not to obstruct, nor to permit any other person to obstruct, the view of the advertising displays or devices constructed on said premises in any manner whatsoever. In the event this agreement is terminated before the end of its term (or the renewal thereof) the Lessor agrees to refund to the Lessee all unearned prepaid rental. It is understood that all display or necessary equipment placed on above property by Lessee is at all times its property and subject to its removal at any time. After the term (or renewal thereof) of this agreement, it will continue in force from year to year unless terminated by either Lessee or Lessor or[sic] written notice to the other, served not less than sixty (60) days before the beginning of such additional year. Lessor grants to lessee, or agents, the right to ingress or egress during the term of this contract to maintain sign structure(s). This agreement is subject to Lessee securing a building permit for said display. Payment is to be made upon securing building permit. The foregoing agreement was drafted by Respondent. Respondent prepared the agreement by adding the underscored language to a printed, form "Outdoor Advertising Structures and Display Lease" that it routinely utilizes in such transactions. On or about June 20, 1988, Respondent submitted an application for an outdoor advertising sign permit for the south facing sign referenced in the above-described lease agreement. Permit AY 242-35 was subsequently granted to Respondent by Petitioner. By letter dated January 9, 1989, from Respondent's attorney, Respondent informed Bethel that it sought to exercise its option "to lease both North and South facing locations," as provided in their agreement. By letter dated January 24, 1989, Bethel, through her attorney, gave "notification to [Respondent] pursuant to the Lease that it will be terminated on May 31, 1989." The letter was received by Respondent on January 25, 1989. On or about May 1, 1989, Bethel sent Petitioner a letter advising that Respondent would "not have a lease for the billboard [which is the subject of permit AY 242-35] after May 31, 1989." Based on the information provided by Bethel, Petitioner initiated action to revoke permit AY 242-35 on the ground that Respondent no longer had "the property owner's permission to maintain signs at the subject location."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, its hereby RECOMMENDED that Petitioner enter a final order revoking Respondent's permit AY 242-35. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of November, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3807T The following are the Hearing Officer's specific rulings on the findings of fact proposed by Petitioner: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected. The Hearing Officer is of the view that the agreement is not vague and ambiguous regarding Bethel's right to terminate her agreement with Respondent in the manner prescribed by the agreement's termination clause. In any event, to the extent that there may an ambiguity in the agreement concerning this matter, any such ambiguity should be resolved in favor of Bethel's right to terminate the agreement inasmuch as the agreement was drafted by Respondent. See Finlayson v. Broward County, 471 So.2d 67, 68 (Fla. 4th DCA 1985). COPIES FURNISHED: Rivers H. Buford, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Garrison M. Dundas, Esquire Swann and Haddock, P.A. Southeast Bank Building 300 South Sixth Street Fort Pierce, Florida 34950 Richard J. Pozniak Ad-Con Advertising Company Post Office Box 541 Fort Pierce, Florida 34954
Findings Of Fact Lamar acquired permits AA-634 and 7504 from Peterson Outdoor Advertising Company for a double-faced sign located on U.S. 98, South, approximately one-half mile north of Crystal Lake Drive on a site leased from Mary D. and Billy Allred. The lease (Exhibit 1.), executed in 1978, was for a three-year term with automatic renewal for an additional five year period and thereafter from year to year on the same terms and conditions unless terminated by lessee by giving 30-days notice prior to the end of the lease year. By warranty deed dated June 14, 1983, (Exhibit 2.) Sun State acquired the property on which this sign was located from Allred. Rent on this lease for 1984 was sent to Allred by Lamar, endorsed over to Sun State and cashed by Sun State. A check for rent for 1985 sent by Lamar to Sun State was never negotiated. By letter dated April 3, 1985, (Exhibit 4.) Sun State Homes told Lamar to immediately remove the sign from its property on U.S. 98, South. On May 16, 1985, Sun State applied for a permit for a sign on U.S. 98, 550-feet north of North Crystal Lake Drive. This application was disapproved by DOT on June 7, 1985, in Exhibit 3 because it was in conflict with the sign for which Lamar held tags for the proposed site. On or about the same time, Sun State applied to Polk County for a building permit to erect a sign at this site. Polk County disapproved the application because DOT had denied the permit. By letter dated May 29, 1985, Sun State appealed the denial of their application. On or about May 27, 1985, Lamar removed their sign from Sun State's property. On May 28, 1985, Lamar submitted an application for a permit to erect a sign on U.S. 98, 1,200 feet north of N. Crystal Lake Drive (Exhibit 5.) and simultaneously surrendered tags no. AA-634 and 7504. Lamar had obtained permission from the owner of that property to erect a sign at this site. This application was denied by DOT because of the appeal by Sun State from its denial. DOT will not approve an application for a sign permit when the right of occupancy of the site is contested. Lamar appealed this denial and the two cases were consolidated for hearing. The two applications are mutually exclusive as only one can be granted without violating spacing requirements.
