The Issue Whether the signs of Respondent should be removed for violating the spacing requirements of Florida Statutes and State Laws, Rules and Regulations.
Findings Of Fact An application for a permit was filed by the Respondent, Lamar-Citrus Outdoor Advertising, for a location and construction of a billboard sign. The application designated U.S. 41 not within the city limits in the county of Lee. The nearest highway intersection was designated as Bonita Beach Enterance, Highway 865 and 1200 feet North from the intersection. The permit was approved May 13, 1976, and the approval designated the sign location as "Sec 309N 01.32 15R f/s." The direction that the sign would face was checked. The lighted block was not checked. Thereafter a 12 x 25 double-face lighted sign was erected by the Respondent on the West side of United States Highway 41, a four-lane highway. On May 2, 1977, the Petitioner, Department of Transportation, issued an "alleged violation of Chapter 479, Florida Statutes, and Notice to Show Cause." The violation notice stated "Signs were approved in this section, but they were for 309 North, not South." Petitioner requested an administrative hearing. Petitioner contends: he properly constructed his signs pursuant to his application and the permit issued by the Respondent. He contends that the spacing problem is caused by another outdoor advertising sign and not his own. Petitioner further contends that the application forms have been changed to clarify the location of signs since his application was filed and his permit was granted. Respondent contends: that Petitioner failed to locate his sign in the location for which he applied and for which the permit was issued; that because of the failure to properly locate his sign, his sign is in an unpermitted location and is an unpermitted sign; that Petitioner's sign is in violation of the spacing requirements of Section 479.02(2) inasmuch as a properly permitted sign is within 200 feet of Petitioner's sign; that the Petitioner has been applying for and has been granted permits for outdoor advertising along the highways of the State of Florida for at least nine and a half years and that the same method of describing the location for the construction of billboards has been used by the Respondent and has been used by the Petitioner and that it is a logical and practical way to describe a permitted location for a sign along a highway; that it is true that new forms are being used to further clarify the position of signs but that the application form used by the Petitioner when applying for the sign and obtaining a permit for the subject sign is clear on its face and the method of location has been well known to the Petitioner for many years. Upon observing the demeanor of the Petitioner and Respondent and listening to the testimony of the witnesses and argument of counsel, the Hearing Officer further finds 1) the Petitioner knew or should have known that the area in which he was permitted to erect a sign was East of the highway inasmuch as the location and construction form expressly stated that the nearest highway intersection was Number 865 and that the direction from the intersection was North. The permit states Sec. 309 North and indicated the sign faces South. A driver of a vehicle going North from the intersection must be in the right hand two lanes of U.S. 41 and that to proceed 1200 feet a sign would be on the right hand or the East side of the four lane highway. The "modus operandi" for location of signs is statewide and well known to the Petitioner as well as the Respondent. To ascertain a location on the West side opposite the area in which the Respondent approved for Petitioner's sign would have required a vehicle to travel North in the South bound lanes of U.S. 41 in order to drive the distance from the stated intersection to the location. Throughout the state the sections are usually designated on the permits so that they show the direction in which to drive, North, South, East or West. The signs are located on the right side of the highways as the vehicle travels.
Recommendation Require the Petitioner to remove the subject sign or remove it at the expiration of appeal time. DONE and ENTERED this 12th day of January, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 E. Snow Martin, Esquire Post Office Box 117 Lakeland, Florida 33802
Findings Of Fact Petitioner submitted Request for Admissions to Respondent Waller on 17 August 1982, and no response thereto was received from Waller (Exhibit 1). Pursuant to Rule 1.370(a), Florida Rules of Civil Procedure, these requests are deemed admitted. Included therein are the following: The sign in question is an outdoor advertising sign visible to vehicular traffic on I-4 and located within 660 feet of the I-4. The sign has never been issued a permit by Petitioner. The sign was located outside the corporate limits of a city or town at the time it was erected. The sign is not located in a commercial or industrial zoned area or in a commercial or industrial unzoned area. The structure is owned by Respondent Waller. Exhibit 2, a computer printout from the office of the Secretary of the State of Florida, shows Country Village Flea Market, Inc., to have been incorporated July 15, 1980, with all directors having the surname of Waller, and Ferris Waller as president and registered agent. The address of the corporation is the same as the address to which the Notice of Alleged Violation was sent. The area in which this sign is located is zoned R-1A, which is single- family residential, and is located inside the city limits of Plant City, Florida.
Findings Of Fact By notice of alleged violation dated January 19, 1979, the Department charged that the Respondent, Chevron, U.S.A., installed a sign on 1-4, 23.86 miles east of U.S. 301, without a permit in violation of Rule 14-10.04, Florida Administrative Code. The notice also alleged that the sign was too close to an off ramp of 1-4, in violation of Title 23, Section 13, U.S. Code Para. 2(B). The parties stipulated that the sign is located along 1-4, a part of the Federal Interstate Highway Systems which was open to vehicular traffic in 1959-1960 and that the sign is located in the unincorporated area of Polk County. On or about October 22, 1969, the Respondent contracted with Pickett and Associates, of Tampa1 Florida, a general contractor, to construct a complete operating service station at 1-4 and SR 35-A. Included in the contract price was the cost of constructing the sign in question. An engineer for Chevron, J. L. Edgar, requested on June 4, 1969, that Pickett and Associates proceed to obtain all permits prior to construction. Due to no direct fault of the Respondent, the necessary permits to install the sign were never obtained from the Department. This fact was discovered when a sign inspector noticed the sign to be in poor condition and in need of repair. The contractor who erected the sign was contacted regarding the permits but all records relating to this particular job have been discarded. Chevron was unaware that the sign was never permitted until the notice was issued by the Department. The sign is located within five hundred (500) feet of the exit ramp off 1-4 to Kathleen Road (SR 35-A) , as measured from the spot where the road widens to the exit. No evidence was submitted to show that the sign was on the same property of the station or within one hundred (100) feet thereof.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That the Respondent's sign be found in violation of Rule 14- 10.06(1)(b)(2)(b) , Florida Administrative Code and Section 479.07, Florida Statutes. DONE and ORDERED this 18th day of August, 1980. in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. A. Scott Chevron, U.S.A., Inc. 3908 10th Avenue Tampa, Florida 33605 Charles Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On July 20, 1987, a DOT sign inspector observed a portable outdoor advertising sign along U.S. 19 near the intersection of 108th Street North in Pinellas County which appeared to be located on the DOT right-of-way. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the edge of the paved lane. Measurements taken showed the sign to be 38 feet from the edge of the pavement. Photos taken of the sign at the time the sign was inspected reveal that the sign was damaged with the frame bent. Around noon of the day the sign was inspected, Respondent was notified by the user of the sign that the sign's frame had been bent and the sign damaged. A second call to Respondent around 1:30 P.M. advised that a warning notice had been placed on the sign. When Herb Selak arrived at the scene shortly thereafter, he observed the anchor missing from the sign and the sign damaged apparently having been hit by a construction company vehicle and pushed off of the parking lot where it had been located and anchored. Prior to the unauthorized removal of the sign onto the right-of-way by a third party, the sign was lawfully placed.
Findings Of Fact The sign in issue is owned by the Petitioner, is in existence and is located as shown on Exhibits 1 and 2 along SR 580, 100 feet north of Nebraska Avenue. The sign is located within the city limits of Tampa and is outside the DOT right of way. There is only one face on this sign which faces southwest and can be seen by eastbound traffic on Busch Boulevard (SR 580). SR 580 is a noncontrolled highway and the spacing requirements are not applicable to signs along Busch Boulevard which are otherwise not controlled. Nebraska Avenue (U.S. 41) is a federal-aide primary highway. A sign was originally erected in the same location as the existing sign in 1979 and remained until 1987 when the property on which the sign was erected changed hands. The new owners requested the sign be dismantled and re-erected on property being developed. This was done and the sign was re-erected in 1988 on its original location and of the same size as the original sign. The original sign was exempt from the spacing requirements by virtue of its grandfather status as a nonconforming sign. The sign can readily be seen by motorists traveling north on U.S. 41 (Exhibits 8-10). When the sign was rebuilt it lost its grandfather status and a new sign permit is required. Petitioner presented the only witness who testified that the angle of the sign is intended to give maximum visibility on Busch Boulevard and that the exposure time to a motorist is substantially longer on Busch Boulevard than on Nebraska Avenue. However, the exhibits submitted into evidence show the sign to be at an approximate 45 degree angle to both Busch Boulevard and Nebraska Avenue, that the sign is seen to the left side of a vehicle traveling east on Busch Boulevard and to the right side of a vehicle traveling north on Nebraska Avenue, and that there are more obstructions to the sign's visibility from Busch Boulevard than from Nebraska Avenue. This latter factor would indicate the sign's exposure time from Nebraska Avenue is at least equal to the sign's exposure time from a vehicle traveling along Busch Boulevard.
The Issue Whether the subject sign, owned by Calusa Campground Condominium Association, Inc. (Calusa), is illegally erected because it is (1) located in the right-of-way of the Florida Department of Transportation (the Department) on U.S. Highway 1 in Monroe County, Florida, and/or (2) it does not have a required permit.
Findings Of Fact The Department is an agency of the State of Florida responsible for regulating outdoor advertising signs within 660 feet of certain road systems, including federal-aid primary highways. Calusa is the owner of the subject sign, which is located in Monroe County, Florida, on U.S. Highway 1. The subject sign is located in the Department's right- of-way. U.S. Highway 1 in Monroe County is a federal-aid primary highway, and it has been designated as a scenic highway. With the exception of an "on-premises sign," a permit issued by the Department is required for signs located within 660 feet of a federal-primary highway. The subject sign is not an "on-premises sign." A permit is required for the subject sign. The subject sign does not have the required permit. Calusa was issued a "Notice of Violation - Illegally Erected Sign in Right of Way" on February 23, 2011, and an "Amended Notice of Violation - Illegally Erected Sign in Right of Way" on July 10, 2012. The violations were based on two reasons: (1) the sign lacks required permits, and (2) the sign is unlawfully in the Department's right-of-way. Both notices contained the following: This sign is illegal and must be removed within 10 days from the date of this Notice, pursuant to s. 479.107(1), F.S. If it is not removed within that time, it will be removed and disposed of by the Department without further notice. PLEASE NOTE: If the sign is removed by the Department, all costs associated with the removal will be assessed against the sign owner. . . .
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that the subject sign is illegal and ordering its removal. DONE AND ENTERED this 6th day of November, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of November, 2012. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Michael Healy, Esquire The Silver Law Group, P.A. Post Office Box 710 Islamorada, Florida 33036 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Gerald B. Curington, General Counsel Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Ananth Prasad, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399
The Issue Whether the subject signs violate the state and federal laws and should be removed; Whether Respondent has violated Section 479.07(1)(4)(6) and Section 479.11(1), Florida Statutes.
Findings Of Fact By letter from Benjamin W. Redding, Esquire, the Hearing Officer was advised that no appearance would be made on behalf of Commander Realty, Inc. and notice was given that Respondent waived any objections to conduct the hearing at the place other than Chipley or in a summary manner. The following described sign is located in an unzoned area outside the city limits in an essentially rural area. The location is on a federal aid highway, U.S. 98. The location is on the corner of U.S. 98 and East Eleventh Street. The copy is Town and Country Lake Estates, a double-faced sign. This sign sets two feet on the road right of way, has never been permitted, no application was made before its erection sometime during the fall of 1975.
The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statute 479.11(1), sign erected without a state permit. Whether subject sign is a new and different sign inasmuch as it has new facings, is erected on new poles and is materially elevated from the location of the previous sign. Whether subject sign is in violation of federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued the Respondent, Peterson Outdoor Advertising Corporation, notice of alleged violation of Chapter 479, F.S., on October 27, 1975 with respect to the following sign: Highway: S.R. 8 (I-95) Location: Junction I-95 and U.S. 17 Copy: 76 Truck Stop Pursuant to this notice the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. This request was made by John T. Graczol, vice president of leasing, by letter dated November 6, 1975. Respondent is the owner of the sign referred to in paragraph 1 of these findings. A sign with similar copy was erected by the Respondent prior to 1970 at the approximate location of subject sign. The Respondent owned and maintained the sign from time of erection up until January of 1975 when such sign was removed and the subject sign built. Subject sign is erected in a nonconforming area both in zoning and on a ramp outside of the city limits on an interstate highway. It is nearer than 660 feet from the nearest edge of the right of way of an interstate highway system in an open rural zoning area and can be read by persons traveling on the interstate highway system. The sign that was removed was in the approximate location with similar copy but with an elevation of under 10 feet. Subject sign is a replacement sign in the approximate location as the replaced sign with the same type of copy. The replacement sign is on different poles and at a more elevated height (from under 10 feet to over 16 feet) than the replaced sign. The replacement subject sign is much more visible to the traveling public than the old sign because of the materially increased elevation. No part of the old sign is standing and the replaced sign has been removed The Petitioner testified that the value of the sign increased by $484.00 and it is the finding of the Hearing Officer that the replacement sign is of more monetary value than the replaced sign. The new facing materials, the replacement of poles and the decided increase in elevation, make subject sign a different sign within the meaning of Chapter 479, F.S. and the federal regulations, thus, becoming a new sign requiring a permit rather than qualifying as nonconforming with the customary maintenance or repair of existing signs allowed under Section 479.01(12), F.S., infra. The owner of the sign was given written notice of the alleged violation and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject sign if said sign has not been received by the owner within ten (10) days after entry of the final order herein. DONE and ENTERED this 30th day of June, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire P. O. Box 539 Winter Park, Florida Mr. O. E. Black Administrator Outdoor Advertising Section Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. F. S. Whitesell District Sign Coordinator South Marion Street Lake City, Florida 32055
Findings Of Fact The Steakery and the Sugarloaf Leisure Club are businesses in Summerland Key, Monroe County, Florida, that are owned by William A. Hare. For the past four years, Mr. Hare has, on behalf of his respective businesses, leased two outdoor advertising signs that are located on the same support structure with one sign being directly above the other. On one sign there appears an advertisement for The Steakery while on the other there appears an advertisement for the Sugarloaf Leisure Club. These two signs face are located in Monroe County, Florida, on the northbound side of U.S. 1, a federal-aid primary highway. The support structure for the signs is approximately 10 feet from the highway. No permit has been issued by the Florida Department of Transportation (DOT) for either sign. The signs are located in a part of Monroe County which is zoned "Native Area". This area is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The signs are not located on the business premises of the sign owner. The signs were inspected by the DOT's Outdoor Advertising Inspector and found to have no state sign permits attached them. On October 5, 1989, DOT caused to be filed against the two signs notices that neither sign had the permit required by law and that the zoning for the location of the signs did not permit outdoor advertising signs. Respondents have not contested the method by which the notices were posted. Mr. Hare, on behalf of his businesses, filed a timely demand for formal hearing following his receipt of the notices of violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order which finds that permits required by law have not been issued for the subject signs, that the signs are in a location that is ineligible for permitting because of its zoning, and which orders the immediate removal of the subject signs. DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 f Administrative Hearings this 15th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASES 89-6103T AND 89-61O4T The following rulings are made on the proposed findings of fact submitted on behalf of the Department of Transportation: 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 3 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 6 of the Recommended Order. 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. 5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 5 of the Recommended Order. COPIES FURNISHED: Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mr. William Hare Owner, The Steakery Owner, Sugarloaf Leisure Club Post Office Box 723 Summerland Key, Florida 33042 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Bulding 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That: Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed. DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Covered in Findings of Fact 1, 3, 4 and 7. Incorporated in Findings of Fact 5 and 6. Incorporated in Findings of Fact 7 and 8. Incorporated in Findings of Fact 2 and 7. Rulings on Proposed Findings of Fact Submitted by Respondent Incorporated in Findings of Fact 1 and 2. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 5. Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 7. Paragraph 1 - approved. Paragraph 2 - approved. Paragraph 3 - approved. Approved. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Rejected as conjecture after the fact. Rejected. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151
