Findings Of Fact Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4. DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate. As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4. Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader." The sign was permitted by the City of Lake Mary on October 17, 1984. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T. DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mac Davidson Maxmedia Outdoor Advertising Post Office Box 847 Winter Park, Florida 32790 Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue Whether the Petitioner's outdoor advertising sign located at 1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF. Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits. On June 26, 1997, the above-referenced sign did not have a current valid permit. On June 26, 1997, the above-referenced sign was not an on-premises sign. Charles Tucker is the owner of the subject sign and the property on which it is located. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon. Charles Tucker has owned the subject sign since 1974. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes. There has been a seven-year period of time during which the subject sign displayed advertising copy. No structural changes have been undertaken on the subject sign since it was constructed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued. DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Mark Gamble Real Estate Representative Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811 Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel 605 Suwannee Street Haydon Burns Building 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
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's timely filed a Petition challenging the voiding of an outdoor advertising permit and whether the Department properly denied a resulting application for issuance of a new permit for the subject outdoor advertising structure.
Findings Of Fact The Community Sign Service, Inc. (Community) received permits numbered 54510 and 54511 from the Department on February 8, 2006, authorizing erection of a two-sided billboard in Lanark Village along U.S. Highway 98 in Franklin County, Florida. That permit included a statement that a completed outdoor advertising sign must be erected within 270 days of issuance of the permit or else the permit would become void. The Petitioner, Community, erected a sign structure consisting of a "monopole" structure at the permitted location. It has two rectangular "wind frames" surrounded by a catwalk on top. The Petitioner, Mr. Franklin, intended attaching a vinyl wrap to the structure with the advertising copy or an "available for rent" message, but that had not been accomplished as of December 4, 2006. On December 4, 2006, the Department, through an inspection by a Department contractor, inspected the site and determined that the sign had not been completed because the face and message were not on it. Therefore, on December 14, 2006, the Department issued a notice advising the Petitioners that the permit was void, the sign illegal, and it needed to be removed because the completed outdoor advertising sign had not been erected at the site within 270 days of the date of permit issuance. The notice to the Petitioners notified them that they could elect to challenge the action by requesting an administrative proceeding within 30 days of the date of the notice, in accordance with the notice of appeal rights on the reverse side of the notice form. The reverse side of the form stated that any petition must be filed with the clerk of agency proceedings by 5:00 p.m. no later than 30 days after the Petitioners received the notice. Several other notices of violations for failure to post Department-issued "tags" on signs were issued to Mr. Franklin. The Department tags were required to be posted on signs within 30 days of their issuance, and on November 16, 2006, Mr. Franklin received two notices that outdoor advertising permits were void, for failure to display advertising copy on two sign structures in Gulf County, Florida. Mr. Franklin met with Ms. Holschuh of the Department in late 2006 or early 2007, to discuss the notices that he had received from the Department and to show her several photographs, taken on his digital camera, of several signs. One of the photographs he alleged showed the Franklin County sign with a "for rent" sign or message, with a phone number at the base of one of the wind frames on the sign structure. This is referred to in the industry as "the apron." The camera did not display the date of the photograph in the picture, but Mr. Franklin stated that he took the picture on December 20, 2006. Ms. Holschuh asked him to provide her with a copy of the photograph but he did not return with a copy because he could not get one to print from his camera with a date on it. Mr. Franklin was given until September 20, 2007, after the hearing, to present the photo as a late-filed exhibit, with the Department accorded an opportunity to submit a counter exhibit, but the photograph exhibit was never filed. In any event, the condition which resulted in the void notice was observed by the contractor inspector on December 4, 2006, and the notice of void permit was issued on December 14, 2006. After he was unable to resolve the void permit issue with the Department, Mr. Franklin submitted a new application under his own name, for a permit for the sign structure at issue, on February 15, 2007. He submitted it in his own name because Section 479.07(5)(a), Florida Statutes, provides that an entity whose permit has been voided may not be eligible for a new permit at the same location for 270 days after the date on which the permit became void. Therefore, Mr. Franklin submitted the application for a new permit in his own name so it would not be the same entity applying. The application for advertising permits for the same location in Franklin County was denied by the Department on the same day, with an explanation that U.S. 98 in Franklin County had recently been declared a "scenic byway" and under the law pertaining to that status, no new permits could be issued. On February 21, 2007, Mr. Franklin submitted a letter to the Department's clerk challenging the voiding of the original permit and stating "this sign had a phone number and for rent sign posted to the apron as there was no sign face to attach the sign to." An Amended Petition challenging both the voiding of the prior permit and the denial of the application for a new permit was submitted to the Department on April 9, 2007.
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 a final order be entered by the Florida Department of Transportation denying the Petitioner's applications for state outdoor advertising permits, based on the scenic highway designation referenced hereinabove, and dismissing the challenge to the voiding of the permit as untimely filed and directing consequent removal of the subject sign in accordance with the provisions of Section 479.105, Florida Statutes (2006). DONE AND ENTERED this 10th day of December, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 10th day of December, 2007. COPIES FURNISHED: Leon Franklin 336 Mills Bayou Drive Milton, Florida 32583 Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450
Findings Of Fact On November 3, 1982, outdoor advertising sign permits AR946-06 and AK947-06 were issued by the Department of Transportation to Sandy Advertising Company. The permits were for a location on the west (north) side of U.S. Highway 90 approximately two miles east of its intersection with U.S. Highway 29 within the city limits of Pensacola, Florida. Sandy Advertising Company transferred those permits to Lamar Advertising Company of Pensacola, Inc. Annual renewal payments have been made each year in a timely manner by Lamar Advertising Company of Pensacola, Inc. No permit tags have been displayed at the Lamar sites and no sign has been built or maintained at the Lamar sites since issuance of the permits. Without having submitted an application for a permit to the Department of Transportation, Outdoor Media of Pensacola, Inc., obtained a building permit from the City of Pensacola for the erection of an outdoor advertising sign located in Escambia County approximately 3,790 feet east of State Road 296 on the north side of U.S. Highway 90. Pursuant to the building permit, Outdoor Media erected a sign at that location. The sign had an east and a west face and was less than 500 feet from the site for which permits AK946-06 and AK947-06 were issued. Each face of the sign required a separate permit from the Department of Transportation. Learning of the erection of Outdoor Media's sign, the Department notified Petitioner to remove it. Instead Outdoor Media applied for two sign permits for each face of the sign. On August 8, 1988, the Department of Transportation received Petitioner's applications for a state outdoor advertising permit. The applications were for each face of the sign located on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. The applications were denied on the ground that two other permits, permit AK946- 06 and permit AK947-06, had been issued to Lamar Advertising of Pensacola, Inc., for a location on the same side of the highway within one thousand feet of Petitioner's site. The spacing impediment caused by the earlier permits is the sole basis for denial of Petitioner's permit applications by the Department of Transportation. Petitioner meets all other permit requirements. In 1984, the legislature extensively revised Chapter 479, Florida Statutes. See Chapter 84-227, Laws of Florida. Of particular concern in this proceeding are the changes to Section 479.07, Florida Statutes, and whether those changes apply to permits AK946-06 and AK947-06. The revisions to this section introduced very specific tag display as well as sign erection and maintenance requirements for all permits. The revisions increased the fee schedules and provided that all permits expire annually on January 15. Section 479.07, Florida Statutes, as amended states in part: (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. 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. (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permit is valid only for the location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100. A permittee shall at all times maintain the permission of the owner or other persons in lawful control of the sign site to have and maintain a sign at such site. (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags which are not renewed shall be returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side- to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main- traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main- traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. The effective date(s) of the amendments to Section 479.07, Florida Statutes, is stated in Section 27 of Law 84-227. Section 27 specifically and explicitly made permits issued prior to June 30, 1984 subject to the new provisions of Law 84-227. Section 27 states: This act shall take effect October 1, 1984, except that the amendments to Section 479.07 F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. In spite of the language of Section 27, it is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within thirty (30) days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with Sections 479.07(5)(b) and (8)(a), Florida Statutes. While DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes, it is applied statewide and has been held to be an invalid unpromulgated rule in Case NO. 5227R, Final Order issued December 29th, 1988. DOT relies upon the definition of "non-conforming" signs given in Section 479.01(12), Florida Statutes. Section 479.01(12), Florida Statutes, states in part: `Nonconforming sign' means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. [Emphasis supplied.] 1/ DOT does not rely upon the exceptions listed in Section 479.16, Florida Statutes, as amended by Chapter 84-227. The exceptions are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits." It is DOT's view that permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained or displayed. These "secret signs" can only be discovered after the application is submitted and DOT checks its computer records. The effect of DOT's interpretation is that pre- 1984 outdoor advertising sign permits can exist into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as the permittee renews its permit. This interpretation is directly opposed to the legislature's purpose in enacting the 1984 amendments, i.e., the prevention of advertisers stockpiling unused sites and permits. Moreover, this interpretation is contrary to the pre- or post-1984 statutory language and is not a reasonable interpretation of the statute. DOT bases it's interpretation on the ground that the constitution prohibits the retroactive application of the 1984 amendments to permits existing prior to the effective date of those amendments. DOT did not offer any evidence as to the accuracy of its view on the requirements of the constitution. Failing such evidentiary support, DOT has failed to carry its burden of proof when utilizing an unpromulgated rule on a case by case basis. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause. Section 120.57(1) Florida Statutes. Section 479.07, Florida Statutes, was amended by Chapter 84-227, Laws of Florida, to require that parties obtaining outdoor advertising permits post their permit tags within thirty (30) days and erect their signs within two hundred seventy (270) days or their permits would automatically become void. The amendment became effective July 1, 1984. The amendment also expressly and explicitly provided for treatment of pre-July 1, 1984 permits by stating" . . . any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. Section 479.01(12) only makes exceptions for nonconforming "signs lawfully erected." Section 479.07(9)(c) only provides that nothing in subsection (9), pertaining to spacing requirements or permitting of new signs after July 1, 1984, may be construed to cause a sign which is conforming on the effective date of the Act to become nonconforming. See the definition of "sign" contained in Section 479.01(14), Florida Statutes, and of "erect" contained in Section 479.01(4), Florida Statutes. However, in spite of the clear language of the statutes, DOT interprets the term "permitted signs" as including permits issued prior to July 1, 1984, but which have no sign erected on the site. DOT has placed an interpretation upon the statutes that is not apparent from their language. The plain language of Sections 479.01(12) and 479.07(9)(c) only applies to signs which have been constructed on the permit site. The sections do not apply where no sign has been constructed. Since no signs were ever erected on the sites covered by permit AK946-06 and AK947-06 neither Section 479.01(12) nor 479.07(9)(c) applies to Lamar's permits. Further, DOT interprets the amendment to Section 479.07, now codified as Section 479.07(5)(a), requiring permit display and sign erection within a specified time period, to be applicable only to permits initially issued after the effective date of July 1, 1984. The agency has not enforced that subsection against preexisting permits and renewals of such preexisting permits, irrespective of whether or not a sign has ever been erected on the permitted site. However, the agency has applied and enforced against preexisting permits all other portions of the amendments, including but not limited to the mandatory recurring uniform annual January 15 renewal date and increased renewal fee with regard to preexisting permits. The agency has taken this approach on the grounds that the constitution prohibited the amendment from being applied retroactively to such preexisting permits. In Administrative Case NO. 88-5227R, this interpretation was held to be an invalid unpromulgated rule. However, agencies have the choice of properly promulgating rules and applying them with the full force and effect of law or of fully explicating those policies by demonstrating the policies' reasonableness and factual accuracy on a case by case basis in Section 120.57 proceedings. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Amos v. Department of Health and Rehabilitative Services, 444 So.2d (Fla, 1st DCA 1983); Gulf Coast Home Health Services Of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987). As noted earlier, the sole reason for DOT's policy was that it was required by the constitution. Such a bare bones claim as "the constitution requires it" is tantamount to the claim that was asserted in Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980) that a previous statutory interpretation was "wrong as a matter of law." In Florida Cities, no record foundation was made for the non-rule policy being followed in that case. The Florida Supreme Court held that such a rationale was not sustainable absent adequate record support for the application of non-rule agency policy. In this case, DOT has failed to affirmatively show the reasonableness and factual accuracy of the policy that sign permits which were issued prior to July 1, 1984, should not be subject to Section 479.07(5), Florida Statutes, enforcement and should be treated as if they constituted, erected and maintained signs for purposes of Section 479.07(9), Florida Statutes. It is doubtful that DOT could ever show the accuracy of its view of the constitution. The case law in the area clearly establishes that permits such as these are not property in the constitutional sense. Such permits do not confer any right, estate or vested interest, and are revocable at the will of the legislature. Such permits are also subject to new permit conditions. State ex rel First Presbyterian Church of Miami v. Fuller, 187 So. 148 (Fla. 1939); City of Miami Beach v. Deauville Operating Corp., 129 So.2d 185 ( Fla. 3d DCA 1961) and Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 ( Fla. 1st DCA 1977). Moreover, the 1984 amendments to Chapter 479 do not require retroactive application to be applied to permits AK946-06 and AK947-06. The new permit conditions were applicable only upon the expiration of the old permits on January 15. Thereafter, the new permit conditions applied to the renewal. Therefore, since Lamar did not build any signs on the sites covered by either permit AK946-06 or AK947-06 within 270 days of its first renewal after the effective date of the statutory revisions to Chapter 479, Florida Statutes, and has not posted the required tags at the sites, permits AK946-06 and AK947-06 are void and cannot be used as a basis for denying Petitioner's sign applications. As in Florida Cities, having failed to establish the reasonableness and accuracy of its policy, the foregoing policy cannot form the basis of the permit denials. This is especially true in light of the fact that DOT's policy ignores the clear language of the statutory amendments.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order voiding Permits AK946-06 and AK947-06, held by Respondent, Lamar Advertising Company, Inc., and granting the applications of Outdoor Media of Pensacola, Inc. DONE and ENTERED this 23rd day of May, 1990, at Tallahassee, 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 23rd day of May, 1990.
Findings Of Fact The Respondent, Gary Dotson, d/b/a Castaway Point, holds outdoor advertising sign permit number 6637-2 authorizing a sign on U.S. 1, 1.3 miles north of SR 516, facing west, in Brevard County, Florida. This location is inside the road right-of-way of the City of Palm Bay. At the time when the subject sign Permit was issued by the Department, the City of Palm Bay had given permission to erect a sign at this location. This permission was for a period beginning on February 15, 1979, and expiring in April of 1980. A sign had been erected at the site where the permit had been issued. This sign was erected by a previous owner, and when the Respondent bought Castaway Point the purchase included the sign. The sign which was authorized by the subject permit was removed by the City of Palm Bay after the City's permission for continued maintenance of this sign had expired. There is presently no authority from the City of Palm Bay for the Respondent to have a sign at the permitted site.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that permit number 6637-2 held by Gary Dotson, d/b/a Castaway Point, for a sign on US. 1, 1.3 miles north of SR 516, facing west, in Brevard County, Florida, be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of March, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. Gary Dotson 3101 Bay Boulevard, N.E. Palm Bay, Florida 32905 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether the Department of Transportation's Notice of Denied Application for an outdoor advertising permit at State Road 61 (U.S. 319), 168 feet west of Thomasville Road, Leon County, issued to Lamar of Tallahassee on May 30, 2008, should be upheld pursuant to Section 479.07, Florida Statutes,1/ or whether the sign should be permitted as a nonconforming sign as defined by Section 479.01(14), Florida Statutes.
Findings Of Fact The Department is a state agency empowered to regulate outdoor advertising signs along the interstate and federal-aid primary highway systems of Florida pursuant to Chapter 479, Florida Statutes. Lamar is licensed to engage in the business of outdoor advertising within the state of Florida pursuant to Section 479.04, Florida Statutes. Lamar owns a V-shaped sign located on certain real property at 1940 Thomasville Road in Tallahassee. Thomasville Road is also known as State Road 61. Lamar does not own the real property, but has the right to erect and maintain its sign on the property under a lease that Lamar executed with the landowner in 1998. Lamar's sign was erected in 1998, with the approval of the City of Tallahassee. The sign is located on the southwest corner of the intersection of Thomasville and Betton/Bradford Road, behind the Southern Flooring showroom. The east side of the sign face is within 660 feet of and visible to State Road 61. State Road 61 is a federal-aid highway and thus a "controlled road" subject to the jurisdiction of the Department pursuant to Section 479.07(1), Florida Statutes. Therefore, the east side of the sign requires a permit from the Department. The west side is visible only to Bradford Road and does not require a permit from the Department. On February 10, 2008, Lisa Adams, an outdoor advertising inspector conducting an annual inventory on behalf of the Department, identified the subject sign as an unpermitted sign that is visible from State Road 61. Ms. Adams completed a Department compliance checklist stating that the sign was possibly illegal because it lacked a Department permit and the east side of the sign was visible from State Road 61. On April 22, 2008, the Department issued a notice of violation stating that the sign was illegal and must be removed within 30 days of the date of the notice, pursuant to Section 479.105, Florida Statutes. Lamar did not file a request for hearing in response to the notice of violation, and does not contest the notice of violation in this proceeding. On May 16, 2008, Lamar filed an Application for Outdoor Advertising Permit for the sign. The Department reviewed the application and issued a Notice of Denied Application on May 30, 2008. The application was denied because the sign site does not meet the spacing requirements of Section 479.07(9)(a)2., Florida Statutes, in that it is closer than 1,000 feet from another permitted sign owned by Lamar. The other permitted sign was built in 1979. The 1,000 foot spacing requirement has been in the statute at all times since the 1998 construction of the sign at issue in this proceeding, meaning that it could never have met the spacing requirement of Section 479.07(9)(a)2., Florida Statutes. Myron Laborde was Lamar Advertising Southeast's regional manager in 1998 when the sign was built. His area of authority included Tallahassee. Mr. Laborde testified that in 1998 the view of the sign from State Road 61 was obstructed by several palm trees, some scrub oaks, and a very tall tallow tree. Some of these trees were removed when Southern Flooring took over and remodeled the old Helms Exterminators building at 1940 Thomasville Road about four years ago. Mr. Laborde testified that the sign is now visible from State Road 61 due to the removal of the trees, but only "if you . . .turn your head 90 degrees" while driving north on State Road 61. Loyd Childree has been the vice-president and general manager of Lamar of Tallahassee since 2003. Mr. Childree testified that the renovations to the Helms Exterminators building began some time after March 2005, and that the building's size was nearly doubled to accommodate the Southern Flooring showroom. Mr. Childree testified that a lot of trees were removed during the renovation, including palm trees and a "canopy-type tree" about 25 to 30 feet tall with a full crown similar to that of an oak. Mr. Childree testified that the sign is now visible from State Road 61 due to the removal of the trees. Mr. Childree further stated that Lamar markets the sign to advertisers based on the traffic counts from Bradford Road, not those from State Road 61. Ms. Adams, the inspector who identified the possible illegality of the sign, has worked for the Department's contractor, TBE Group, since August 2004. Her job is to conduct an inventory of permitted signs on controlled roads such as State Road 61 and determine which unpermitted signs are visible from the roadway. Ms. Adams inventoried State Road 61 in 2005, 2006 and 2007 without identifying Lamar's sign as an unpermitted sign visible from the roadway. Ms. Adams testified that her predecessor in the position inventoried State Road 61 every year since Lamar's sign was erected and never identified the sign as one visible from State Road 61. Ms. Adams testified that she might have seen the sign in a previous year but did not identify it as illegal because she believed it had "on-premise" advertising, i.e., it advertised Southern Flooring. With certain restrictions, a sign erected on the premises of a business establishment that bears advertising for that establishment is exempt pursuant to Section 479.16(1), Florida Statutes. Ms. Adams frankly conceded that she was speculating and that her memory was unclear as to whether she had seen and noted this sign in past years. In any event, Lamar's log of advertisers showed that Southern Flooring never advertised on the sign. Lynn Holschuh is the Department's state outdoor advertising administrator, and had held this position since 1992. Ms. Holschuh testified that State Road 61 has been inventoried by an outdoor advertising inspector every year since Lamar's sign was erected in 1998. None of the inspectors noted the visibility or possible illegality of the sign until Ms. Adams noted the sign on February 12, 2008. Ms. Holschuh lives in Tallahassee and has driven on State Road 61 hundreds of times over the years. In her deposition, she testified that she believed the sign was not visible when it was built, and only became visible from State Road 61 when a third party removed the obstructing trees. The testimony of Mr. Laborde, Mr. Childree, and Ms. Holschuh was credible and uncontroverted as to the history of the sign. It is found that the sign was not visible from State Road 61 when it was erected in 1998, but that it became visible from State Road 61 when trees were removed by the landowner during renovations to the old Helms Exterminators building at some point after March 2005. Lamar's sign, now visible from State Road 61, is subject to the Department's jurisdiction pursuant to Section 479.01, Florida Statutes, because State Road 61, as a federal- aid primary highway, is a "controlled road" under the statute. A sign visible from a controlled road must carry a Department permit. Lamar contends that the facts of this case establish that its sign meets the definition of a "nonconforming sign" set forth in Section 479.01(14), Florida Statutes: "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. Lamar's sign was not visible from State Road 61 in 1998 and therefore was "lawfully erected" in terms of the Department's licensing requirements. Lamar contends that the removal of trees by a third party constituted "changed conditions" that rendered the sign out of compliance with state law, and that the sign is therefore a nonconforming sign under Section 479.01(14), Florida Statutes. The Legislature has provided no definition of the term "changed conditions," and the Department has no rule to provide interpretive guidance to the words of the statute. On September 17, 2008, Lamar filed a motion for leave to amend its petition for hearing in this case to challenge the Department's alleged interpretation of the phrase "due to changed conditions" as an unadopted rule. In particular, Lamar alleged that the Department was applying an unadopted rule limiting "changed conditions" to those initiated by a government agency. On September 19, 2008, the Department filed an unopposed motion to remand the case to the agency. The motion was granted on September 22, 2008. In the Florida Administrative Weekly dated November 26, 2008 (vol. 34, no. 48, p. 6228), the Department published a Notice of Development of Proposed Rule, with the following preliminary text of an amendment to Florida Administrative Code Rule 14-10.006: 14-10.006 Additional Permitting Criteria. Each application for an outdoor advertising sign permit shall meet the requirements of Sections 479.07(9) and 479.11, F.S. In addition, an application must comply with the requirements of the agreement between the state and the United States Department of Transportation referenced in Section 479.02(1), F.S., which have not been duplicated in Sections 479.07(9) and 479.11, F.S., or superseded by stricter provisions in those statutes. The requirements are: through (8) No change. (9) The term "changed conditions" referenced in Section 479.01(14), F.S., defining nonconforming signs, means only the actions of a governmental entity, as defined by Section 11.45, F.S., which includes for example: Rezoning of a commercial area, reclassifying a secondary highway as a primary highway, or altering a highway's configuration causing a preexisting sign to become subject to the Department's jurisdiction. (Emphasis added) Ms. Holschuh testified that this draft rule language was written in direct response to Lamar's allegation that the Department's denial of its application was based on an unadopted rule. On December 16, 2008, the Department held a workshop on the draft rule. At the workshop, the Florida Outdoor Advertising Association ("FOAA") submitted the following suggested draft language for subsection (9) of Florida Administrative Code Rule 14-10.006: (9) The term "changed conditions" referenced in Section 479.01(14), F.S., defining nonconforming signs, means, and shall include, any of the following: An action taken by a governmental entity, as defined by Section 11.45, F.S., such as the rezoning of a parcel of property fro commercial to noncommercial, reclassifying a secondary highway to a primary highway, altering a highway's configuration, or the taking of any other action within the powers of such governmental entity which thereby causes a preexisting sign to become subject to the Department's jurisdiction; The action of a third party, who is not the owner of a preexisting sign, relating to modifications to the topography, vegetation, buildings or other physical characteristics of the property upon which the sign is located, or the property surrounding the sign, which thereby causes a preexisting sign to become subject to the Department's jurisdiction. an act of God which thereby causes a preexisting sign to become subject to the Department's jurisdiction. The Department rejected the FOAA's proposed language, and ultimately abandoned the effort to adopt a rule defining the term "changed conditions." On September 18, 2009, the Department filed a motion with DOAH to reopen this case and proceed to a fact-finding hearing regarding its proposed rejection of Lamar's application. In her deposition, Ms. Holschuh testified that the rulemaking effort was abandoned because the language proposed by the FOAA made it clear that it would be "nearly impossible" to arrive at a definition that would cover "every situation that might arise for when an existing sign might suddenly become visible." Ms. Holschuh testified in deposition that it is now the Department's policy to review these matters on a case-by- case basis. However, she also testified that the Department, as a matter of "policy," continues to limit its consideration of "changed conditions" to actions taken by a governmental entity. The Department bases this limitation on the examples provided by 23 C.F.R. § 750.707(b), defining "nonconforming signs" for purposes of the Federal Highway Administration: A nonconforming sign is a sign which was lawfully erected but does not comply with the provisions of State law or State regulations passed at a later date or later fails to comply with State law or State regulations due to changed conditions. Changed conditions include, for example, signs lawfully in existence in commercial areas which at a later date become noncommercial, or signs lawfully erected on a secondary highway later classified as a primary highway. Ms. Holschuh stated that the Department's policy was applied to Lamar in the instant case, and would continue to be applied in the future unless some "extraordinary circumstance" in a specific case led the Department to revisit the policy. At the final hearing, Ms. Holschuh backed away somewhat from her flat statement that the Department's "policy" was to limit consideration of changed conditions to those caused by government action. She stated that FOAA's proposed rule language caused the Department to reconsider its position that governmental action should be the exclusive reason for granting a permit for "changed conditions," and testified that the Department will consider other circumstances in its case-by-case review of permit applications. Ms. Holschuh testified that, under the facts presented in this case, the Department would deny the permit because there is DOAH case law on point for the proposition that tree removal does not constitute "changed conditions," and because broadening the definition of "changed conditions" to include the situation presented by this case would open up the process to abuse. Ms. Holschuh testified, at more than one point in the proceeding, that the Department would have very likely granted the permit had the trees been removed by the Department rather than the private landowner. She gave no indication that Section 479.105(1)(e), Florida Statutes, or any other statute would prevent the Department from granting the permit for Lamar's nonconforming sign, should the Department find that the sign fell into nonconformity due to "changed conditions." The DOAH case law cited by Ms. Holschuh is Lamar of Tallahassee v. Department of Transportation, Case Nos. 08-0660 and 08-0661 (DOAH September 15, 2008), discussed more fully in the Conclusions of Law below. Ms. Holschuh testified that Lamar's sign is not located in a Department right-of-way and is not a hazard to the public in its current location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation denying the application of Lamar of Tallahassee for a state sign permit for a location described as State Road 61 (U.S. 319), 168 feet west of Thomasville Road, in Leon County, Florida (Application Number 57155). DONE AND ENTERED this 7th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of June, 2010.
Findings Of Fact In mid-1983 National had a properly permitted outdoor advertising structure bearing tag numbers AD-016-10 (south-facing sign) and AD-018-10 (north-facing sign) on the east side of U.S. 27 on leased property in Highlands County. In the latter part of 1983 this property was purchased by Young. On September 15, 1983, Young notified National that he was the owner of the property on which this sign was located and requested National to remove the sign. On September 16, 1983, Young applied for a permit to erect an outdoor advertising sign at this location. Young's application was disapproved by DOT on November 7, 1983, because DOT's records showed this to be a site occupied by a permitted sign (Exhibit 3). On or about October 26, 1983, after having received no response from National to his request for National to remove the sign, Young cut down the sign by sawing its supporting posts. On November 28, 1983, Young requested a hearing on the denial by DOT of his application for a permit for a sign at this site. On November 3, 1983, National obtained a lease (Exhibit 2) on property abutting Young's property and, on or about November 4, 1983, erected a sign on this property using the same faces from the fallen sign and attached the tags issued for its original sign. National's original lease dated 10/13/80 (Exhibit 1) with John Larino provided that either party could terminate the agreement on thirty days' notice. When Young purchased the property from Larino, he complied with the lease provisions regarding termination of the lease, including rebating the rent for the unused portion of the lease. Young erected a sign on this property on November 6, 1983, before his application had been denied and two days after National had re-erected its sign. Young obtained a county building permit on September 16, 1983, for the sign he subsequently erected. National has not applied for permit for the structure erected on the land leased from Boyd but attached permit tags AD-016-10 and AD-018-10 to the sign. The juxtaposition of the signs is as follows: proceeding north on U.S. 27, the first sign is owned by Young, next is the site of the former National sign, and then National's new sign. All of these locations are on the east side of U.S. 27, are less than 1,000 feet from a permitted sign to the south, are more than 500 feet from the sign, and all are within 180 feet of each other. When an applicant applies for a permit for a new sign, the site is inspected by a member of the Outdoor Advertising staff in the DOT district where the sign is to be located in company with the application, or the site is staked out by the applicant and viewed by a staff member. This inspection is to ascertain that the proposed sign will be located the required minimum distance from an existing sign and the proper distance from the roadway from which the sign will primarily be observed. DOT'S policy is that any relocation of the sign from the authorized location constitutes a new sign and requires the submission of a new application and approval therefor. The approved application for National's original sign was on U.S. 27 2.9 miles north of "Junction 17-Sebring." This location is on the property now owned by Young.
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
