The Issue Whether the outdoor advertising sign of Respondent should be removed for lack of an outdoor advertising permit and for being erected without a permit within the prohibited distance of an interstate highway.
Findings Of Fact A violation notice and Notice to Show Cause dated August 3, 1978, was served upon the Respondent charging him with violation of Chapter 479, Florida Statutes, Sections 335.13 and 339.301, Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code. The sign in question carries the copy "Arrowhead Campsites" and is located 0.5 mile west of U.S. Highway 231 on Interstate Highway 10. An administrative hearing was requested on the charges. A billboard advertising Arrowhead Campsites has been erected within the past three years in Jackson County, Florida, about one-half mile west of U.S. 231 on the south side of Interstate 10. The sign is approximately fifteen (15) feet south of a fence located within the right-of-way of Interstate 10. The outdoor advertising is approximately one hundred (100) feet from the edge of the interstate highway and is clearly visible to the public traveling on the interstate. It obviously was erected to advertise the campsites to those traveling on the federal highway. The sign is located on private property in a rural area along the interstate highway. No outdoor advertising permit is attached to the subject sign, and no application has been made to the Florida Department of Transportation for a permit for subject sign. It was stipulated that the Respondent, Bill Reddick, is the husband of the owner of Arrowhead Campsites, and that Mr. Reddick accepted service of the notice and the notice has not been questioned.
Recommendation Remove the subject sign without compensation therefor and assess penalties as provided in Section 479.18, Florida Statutes. DONE and ORDERED this 9th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1979. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James P. Appleman, Esquire 206 Market Street Post Office Box 355 Marianna, Florida 32446 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
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
The Issue What final agency action should the Department of Transportation take on Petitioner's Application for Outdoor Advertising Permit.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The proposed sign that is the subject of the instant controversy (Proposed Sign) is located off of I-95 in the City of Miami (City) at 328-334 Flagler Street on a parcel of land leased by Petitioner from CanPartners Realty (CanPartners Parcel). Section 10.4.5 of the City's Zoning Ordinance (Section 10.4.5), which has been in effect since 2002, prohibits "new signs of outdoor advertising," except in limited circumstances. It provides, in pertinent part, as follows: For the purposes of this section, "Outdoor advertising signs" are signs used in the conduct of the outdoor advertising business; an outdoor advertising business, for the purpose of this section, is defined as the business of receiving or paying money for displaying signs where the sign copy does not pertain to the use of the property, a product sold, or the sale or lease of the property on which the sign is displayed and which does not identify the place of business as purveyor of the merchandise or services advertised on the sign. Except as otherwise provided in Articles 4 and 10 and/or the City Code, or, pursuant to this subsection, no new freestanding "Outdoor advertising signs," as defined above shall be allowed. * * * Notwithstanding any provision of this Zoning Ordinance to the contrary, permits for outdoor advertising signs may be issued pursuant to a Settlement Agreement authorized by Resolution passed by the City Commission, in conjunction with the settlement of related litigation, which expressly authorizes issuance of such permits for said outdoor advertising signs, and then only under the terms and conditions of settlement agreements that result in a net reduction in the party to the settlement's number of outdoor advertising signs located in the City of Miami. . . . The City has entered into "Settlement Agreements" of the type described in the last paragraph of Section 10.4.5 with three sign owners: Carter Pritchett Hodges, Inc., d/b/a Carter Outdoor Advertising, Inc.; Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor; and Intervenor. The City does not have a such a "Settlement Agreement" with Petitioner. The City entered into its Settlement Agreement with Intervenor (City/CBS Settlement Agreement) on July 18, 2008. The City/CBS Settlement Agreement contains the following provisions, among others: 4. Amended Permits. In recognition of CBS's [Intervenor's] removal of the numerous Sign structures and Sign faces described in this Agreement and waiver of just compensation thereof, the City will amend a maximum of 15 existing sign permits (the "Amended Permits") to allow CBS to transfer the permit rights associated with such Signs to new locations with a maximum of two (2) Sign faces each on the terms and conditions set forth below: The City will amend up to a maximum of 15 permits for Signs based on CBS's removal of Signs on a two for one basis: for every two bulletin faces removed, one bulletin face may be erected with an Amended Permit. . . . * * * c. Upon application by CBS showing compliance with the provisions of this paragraph, the City will amend existing Sign permits to allow the transfer of permit rights associated with such Sign or Signs to locations within the same or a less restrictive Zoning District. For all Initial Amended Permits and Amended Permits, CBS will submit FDOT Form 575-010-04 to the City, which will be stamped on the date received. The City's signature on the FDOT Form 575-010-04 shall constitute approval of the location of the sign, and no further approvals from the City shall be required. All Sign permits will be processed "first in, first out," such that no other FDOT Forms may be signed or authorized for a subsequent application which would interfere with the location secured by a previously approved FDOT Form 575-010-04. If an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application. * * * 19. Miscellaneous. * * * f. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of the any successor or permitted assigns of the parties hereto. CBS shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by CBS will be valid unless: (1) the assignee shall execute an Agreement to be bound by the terms and conditions of this Agreement and to accept all of the rights and obligations of CBS under this Agreement; and (2) the assignment is approved in writing by the City Commission, which approval shall not be unreasonably withheld, delayed or conditioned. The parties acknowledge that the City Commission shall have the right to reject proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any such assignment shall not relieve CBS of its obligations under this Agreement . . . . Any attempted assignment in violation of this Section shall be void. In anticipation of the finalization of the City/CBS Settlement Agreement, Intervenor (through Joseph Little) and Petitioner (through Harkley Thorton) had signed, on May 1, 2008, a Letter of Understanding (LOU) "set[ting] forth the understanding between [Intervenor] and [Petitioner] concerning new sign locations to be utilized in conjunction with the Settlement Agreement between [Intervenor] and the City of Miami." The first numbered paragraph of the LOU explained: CBS is negotiating and attempting to finalize a Settlement Agreement with the City whereby the City will issue 15 amended permits for the construction of new monopole signs with double faces, on expressways located within the City, in return for which CBS will remove 2 existing (or previously removed) sign faces for each new sign face constructed pursuant to an Amended Permit, subject to the terms and conditions of the Settlement Agreement between CBS and the City. Paragraph 2 of the LOU read, in pertinent part, as follows: With respect to the Settlement Agreement with the City, CBS and OM [Petitioner] agree as follows: * * * Under the Settlement Agreement, CBS seeks to obtain 7 Initial Amended Permits (as defined in the Settlement Agreement) one of which is tentatively agreed to be located in Jose Marti Park. Provided there is no term in the Settlement Agreement and the City does not otherwise require CBS to develop a site in the Jose Marti Park, CBS will abandon its proposed Jose Marti Park site and instead accept a site owned by Brickell Land Development Company, located at approximately 300 SW 8th Street (the "Brickell Site"), which is or will be subject to a lease with OM that allows construction and operation of a sign in accordance with the terms of paragraph (2c) below. . . . Provided OM obtains four (4) additional sites for placement of signs pursuant to Amended Permits under the Settlement Agreement, CBS agrees to accept said four sites provided CBS deems each site to be commercially viable. . . . For each of the sites accepted by CBS, CBS will enter into a sub-lease agreement with OM, whereby OM will be the sub-lessor and CBS will be the sub-lessee. . . . Provided that OM produces the Brickell Partners Site and four (4) additionally Commercially Viable Locations, CBS will assign the rights to one (1) of its amended permits under the Settlement Agreement with the City. CBS will assign to OM, and OM will assume, CBS's rights and obligations under the Settlement Agreement to said amended permit except for CBS'[s] obligations pursuant to paragraphs (7a-7d), (8a), and (12a). CBS will provide for the removal of two (2) of its existing sign structures to allow the City to issue the said Amended Permit to OM under the Settlement Agreement. * * * h. CBS'[s] acceptance of the four (4) Commercially Viable Locations referenced in 2c above is expressly conditioned upon the City's approving all locations on Exhibits B and B-1, as amended from time to time, as appropriate removals for Amended Permits in the Settlement Agreement. The penultimate paragraph of the LOU (Paragraph 6) provided as follows: This letter is a Letter of Understanding and binding between the parties and establishes the major business points and conditions of the Parties' agreement for this transaction. However, it is not all inclusive in that it does not contain all the deal points. The Parties agree to expand upon this Letter of Understanding in good faith to prepare a full agreement that can be executed within thirty (30) days of the date of this Letter of Understanding. Such agreement shall be consistent with the terms of this Letter of Understanding and contain such further terms and conditions as are mutually acceptable to the Parties. However, the failure of the Parties to complete a full agreement shall not invalidate the terms of this Letter of Understanding or excuse either Party from performing its obligations and responsibilities as set forth herein. The record is devoid of evidence that Intervenor and Petitioner ever executed a "full agreement," as contemplated by paragraph 6 of the LOU. Intervenor has not executed (pursuant to Paragraph 2e. of the LOU), nor has the City Commission approved (pursuant to Paragraph 19f. of the City/CBS Settlement Agreement), any assignment to Petitioner of Intervenor's rights under the City/CBS Settlement Agreement (although Petitioner believes that it is entitled to such an assignment and has so argued in circuit court litigation in which it is currently involved with Intervenor). On May 2, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. [Intervenor] and Outlook Media of South Florida, LLC [Petitioner] have signed a letter of understanding dated May 1, 2008 (The "Agreement"). Please accept this letter as confirmation that in accordance with the terms of the Agreement, CBS Outdoors, Inc. consents to Outlook Media of South Florida, LLC filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on our behalf. Thereafter, Petitioner submitted to the City's Zoning Administrator, Lourdes Slazyk, (on the version of FDOT Form 575- 010-04 then in effect) Petitioner's Application, requesting that Ms. Slazyk complete and sign the "Local Government Permission" section of the form. Obtaining such "Local Government Permission" is among the prerequisites for receiving an outdoor advertising sign permit from the Department. To erect an outdoor advertising sign in the City after the Department issues a permit, a City building permit (which is "something other than" the "Local Government Permission" referred to above) is required. Ms. Slazyk completed and signed the "Local Government Permission" section of the form, as requested, on May 22, 2008. It was not until almost a year later that Petitioner's Application was submitted to the Department. In completing the form, Ms. Slazyk checked the box indicating that the "outdoor advertising sign identified in this application: [was] in compliance with all duly adopted local ordinances and has been or will be issued the necessary permits." She did so based upon her understanding that the application (which named Petitioner as the applicant) was actually being filed by Petitioner on behalf and with the consent of Intervenor (in accordance with Mr. Little's May 2, 2008, letter) and that Petitioner was "traveling under" the City/CBS Settlement Agreement. Had Intervenor not notified the City that Petitioner was, with Intervenor's consent, "filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on [Intervenor's] behalf," Ms. Slazyk would not have checked the "compliance" box on the form, given the requirement of Section 10.4.5 of the City's Zoning Ordinance that "permits for outdoor advertising signs" may be issued only "pursuant to a Settlement Agreement" of the type described in Section 10.4.5 (to which Petitioner, unlike Intervenor, was not a party). On August 28, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. herewith withdraws its blanket letter of consent dated May 2, 2008 authorizing the City to approve FDOT application forms by Outlook Media of South Florida, LLC on our behalf. A copy of that letter is attached. Henceforth, any FDOT outdoor advertising application form submitted to the City by Outlook must include a specific authorization from CBS Outdoor indicating our approval and authorizing the City to process the FDOT form pursuant to our Settlement Agreement with the City. Please feel free to contact me if you have any questions. By letter dated October 24, 2008, Intervenor (through its attorney, Glenn Smith, Esquire), advised the City, among other things, that it was "withdraw[ing]" certain applications for outdoor advertising sign permits from the Department, including Petitioner's Application, that either it or Petitioner, on Intervenor's behalf, had previously submitted to the City to obtain the "Local Government Permission" required for such a Department permit. On February 13, 2009, Petitioner (through its attorney, Amanda Quirke, Esquire) sent a letter to Ms. Slazyk, which read, in pertinent part, as follows: As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped received copies for our files. Thank you for your assistance. Intervenor had not authorized Petitioner to make such a request on Intervenor's behalf. Accordingly, (through Mr. Smith) it sent Ms. Quirke the following letter, dated February 18, 2009: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is submitted in response to your February 13, 2009, letter to Lourdes Slazyk at the City of Miami ("City") seeking the approval of the City of the Renewal Applications. CBS has issued no authorization to OM [Petitioner] to submit the Renewal Applications to the City. Therefore, the February 13, 2009 Letter is ultra vires, and OM is directed to withdraw same. If OM desires to obtain CBS's authorization to process the Renewal Applications to the City, OM is directed to submit to CBS a written request for authorization to do so. OM's written request for authorization should address, among other things, the following: CBS's original authorization to OM to submit the FDOT Application to the City was to authorize OM to make submissions on behalf of CBS. Please confirm that any submission of Renewal Application by OM to the City will likewise be on behalf of CBS. Many questions remain relative as the various locations identified in the February 13, 2009, Letter as to whether the locations are "commercially viable." See Attachment A hereto. Please contact the undersigned to schedule a meeting to discuss resolution of these remaining questions. Can Partners Realty: As you know, the City has agreed to approve the Lummis Site. Therefore, the CanPartners Realty site is no longer under consideration and is not to be renewed. OM is hereby specifically directed to take no action to renew the FDOT Application for this site. CBS and its representative are available to discuss the February 13, 2009 Letter, the Renewal Applications and the contents of this letter. If OM desires to discuss same, please contact the undersigned for that purpose. That same day (February 18, 2009), Intervenor (through Mr. Smith) also sent a letter to Ms. Slazyk, in which it stated the following: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is being sent to you on behalf of CBS in response to the February 13, 2009 Letter to you from counsel for OM. In the February 13, 2009 Letter, counsel for OM requests approval by the City of Miami (the "City") of the Renewal Applications under the CBS Settlement Agreement with the City. Please be advised that CBS has not authorized OM to present the Renewal Applications to the City. Therefore, CBS requests that the City take no action on the Renewal Application until the City receives further communications regarding same from CBS. Notwithstanding Intervenor's directive (communicated in its February 18, 2009, letter to Ms. Quirke) that "the CanPartners Realty site . . . not . . . be renewed," on that same date (February 18, 2009), Petitioner (through Ms. Quirke) sent a follow-up letter to Ms. Slazyk, which read, in pertinent part, as follows: In accordance with the request of CBS, please accept this revised request for the renewal of the outdoor advertising applications, originally submitted on February 13, 2009. This revised request is a clarification that Outlook is requesting the renewal of the approval of the following applications on behalf of CBS. As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media of South Florida, on behalf of CBS, is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped, received copies for our files. Thank you for your assistance. The following day, February 19, 2009, Ms. Slazyk wrote back to Ms. Quirke, stating the following: I am in receipt of a faxed letter with back up from your office dated February 13, 2009 and faxed again, as modified, dated February 18, 2009 requesting renewal of certain outdoor advertising signs. I am informing you that, per the attached letters from CBS, and their representatives, the request is not authorized. Petitioner appealed Ms. Slazyk's denial of its renewal request to the City Zoning Board, which upheld the denial. Petitioner thereafter took a further appeal to the City Commission, but Petitioner subsequently withdrew this appeal. It is the City's position "today" (as expressed by Ms. Slazyk at hearing) that Petitioner does not have "Local Government Permission" from the City for the Proposed Sign. On May 4, 2009, almost a year after Ms. Slazyk had signed the "Local Government Permission" section of Petitioner's Application, Petitioner's Application was submitted to the Department.5 The Department contracts with Cardno TBE "to do physical inspections of potential advertising sites" that are the subject of permit applications. For the past 11 years, Matt Barnes has been employed by Cardno TBE as an outdoor advertising inspector responsible for conducting such inspections for the Department. Mr. Barnes was assigned the task of inspecting the CanPartners Parcel (the site where, according to Petitioner's Application, the Proposed Sign would be located). Using two different distance measuring devices,6 Mr. Barnes measured the distance "along the highway [I-95]" from a point directly above the Proposed Sign location (as indicated by a "wooden stake [sticking] about two feet out of the ground" that had been placed there by Petitioner) to the "nearest permitted sign" on the same side of the "highway" (which was to the south and bore tag numbers 412 and 413).7 He "came up with 970 feet both times." On May 19, 2009, the Department issued its Notice of Denied Outdoor Advertising Permit Application, announcing its intention to deny Petitioner's Application because, in pertinent part, the "[Proposed] [S]ign [did] not meet spacing requirements" and the "Local Government Permission" was given "more than six (6) months prior to [the Department's] receipt [of the application]." Petitioner subsequently requested a "formal administrative hearing" on the matter. On May 21, 2009, Intervenor filed an Application for Outdoor Advertising Permit for a sign to be located at 350 Northwest Second Street in the City on a parcel leased to Intervenor by Lummus Park Associates, LLC (Lummus Sign). Because of its proximity to the location of the Proposed Sign, the Lummus Sign would violate minimum spacing requirements and thus not be permittable were Petitioner's Application to be granted. Accordingly, Intervenor's application is being held in "pending status" by the Department until final action is taken on Petitioner's Application.8 On June 17, 2009, Petitioner (through one of its principals, Santiago Echemendia, Esquire) sent a letter to the City, which read, in pertinent part, as follows: This law firm represents Outlook Media of South Florida, LLC ("Outlook"). As you may be aware, Section 14 of SB 360 provides that any local government issued development order or building permit that has an expiration date of September 1, 2008 through January 1, 2012, is extended and renewed for a period of two years following its date of expiration. In accordance with Section 4(c) of the Settlement Agreement between CBS Outdoor, Inc. and the City of Miami (attached), "[i]f an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application." FDOT also takes the position that the local government permission on FDOT Form 575-070-04 must be issued within 180 days of application to FDOT for an FDOT tag for a sign location. On behalf of Outlook, pursuant to Section 14 of Senate Bill 360, please accept this letter as notification that Outlook is extending the local government permission provided on FDOT Form 575-070-04 for the following locations: * * * Site: CanPartners Folio Number: 01-4137-036-0020 Local Government Permission: 05/22/08 FDOT 180 Day Expiration: 11/18/08 2 Year Extension of FDOT 180 Day Expiration: 11/18/10 Original 280 Day Expiration: 02/26/09 2 Year Extension of City of Miami Expiration: 02/26/11 * * * This 2 year extension notification applies to extend both the FDOT 180 Day Expiration, as well as the 280 Day Expiration set forth in the CBS Settlement Agreement. Therefore, the expiration date for the aforementioned sign locations is extended until the dates listed in the columns entitled "2 Year Extension of FDOT 180 Day Expiration" and "2 Year Extension of City of Miami Expiration." A copy of the FDOT Form 575-070-04 for each of the sign locations is attached for your convenience. . . . On October 5, 2009 (approximately five months after the filing of Petitioner's Application with the Department), the City Commission, on second reading, adopted a resolution (Resolution File Number 09-01061) to enable it to participate in the "pilot program" established by Section 479.07(9)(c), Florida Statutes, "under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if [certain] requirements . . . are met." The resolution, which is still in effect, provides as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION EXPRESSING ITS INTENTION TO PARTICIPATE IN A PILOT PROGRAM ALLOWING 1,000 FOOT SPACING OF OUTDOOR ADVERTISING SIGNS ALONG EXPRESSWAYS IN THE CITY OF MIAMI ("CITY"), SUBJECT TO CONDITIONS; FURTHER AUTHORIZING THE CITY MANAGER TO NOTIFY THE FLORIDA DEPARTMENT OF TRANSPORTATION OF THE CITY'S INTENTION TO PARTICIPATE IN SUCH PILOT PROGRAM. WHEREAS, Section 10.4.5 of the Miami Zoning Ordinance prohibits new freestanding "Outdoor advertising signs" as defined therein, except for Outdoor advertising signs permitted pursuant to a Settlement Agreement that results in a net reduction in the number of Outdoor advertising signs located in the City of Miami (hereinafter "qualified settlement agreement"); and WHEREAS, by separate Resolutions, the City Commission has authorized the City Manager on behalf of the City of Miami ("City") to enter into qualified settlement agreements with the following sign owners: Carter Pritchett Hodges, Inc. d/b/a Carter Outdoor Advertising, Inc. ("Carter"), Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor ("Clear Channel"), and CBS Outdoor, Inc. (hereinafter "CBS"); and WHEREAS, at the time the qualified settlement agreements were approved by the City Commission, Section 479.07(9)(a), F.S. (2008), required new Outdoor advertising signs to be located at least one thousand five hundred feet from any other permitted sign on the same side on an interstate highway (hereinafter "1,500 foot spacing"); and WHEREAS, by House Bill 1021, the Florida Legislature recently amended s. 479.07(9)(c), F.S., in the 2009 Legislative Session, to include the City within a pilot program permitting new Outdoor advertising signs on an interstate highway to be located within one thousand feet from any other permitted sign on the same side of the interstate highway (hereinafter "1,000 foot spacing") under certain enumerated conditions, to wit: "(c) Notwithstanding paragraph (a)(1), there is established a pilot program in Orange, Hillsborough, and Osceola Counties, and within the boundaries of the City of Miami, under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if all other requirements of this chapter are met and if: The local government has adopted a plan, program, resolution, ordinance, or other policy encouraging the voluntary removal of signs in a downtown, historic, redevelopment, infill, or other designated area which also provides for a new or replacement sign to be erected on an interstate highway within that jurisdiction if a sign in the designated area is removed; The sign owner and the local government mutually agree to the terms of the removal and replacement; and The local government notifies the department of its intention to allow such removal and replacement as agreed upon pursuant to subparagraph 2." and WHEREAS, the City Commission deems it in the best interest of the City to participate in the pilot program authorized by s. 479.07(9)(c), F.S. (2009), which would permit 1,000 foot spacing for Outdoor advertising signs under the guidelines provided in this Resolution; NOW, THEREFORE BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. 2. Pursuant to s. 479.07(9)(c)(2), F.S. (2009), the City hereby adopts a pilot program encouraging the voluntary removal of signs within the boundaries of the City, which provides, subject to the conditions stated below, for a new or replacement sign to be erected on an interstate highway, with 1,000 foot spacing, if other Outdoor advertising signs within the boundaries of the City are removed. Section 3. Any sign owner seeking permission to erect an Outdoor advertising sign with 1,000 foot spacing under this pilot program shall meet the following conditions: The sign owner must have a qualified settlement agreement with the City; Any application for a new sign under the pilot program must be in accordance with all terms and conditions of the qualified settlement agreement unless otherwise specified in these conditions; In no event may an application for a new sign under the pilot program exceed the limitation on the number of signs otherwise permitted under the qualified settlement agreement; The duration of the pilot program will not exceed the term of the qualified settlement agreement; No LED Sign may be erected with 1,000 foot spacing unless allowed by an amendment to the sign owner's qualified settlement agreement pursuant to applicable provisions of the Miami Zoning Ordinance; Sign owners must specify in advance of applying for a 1,000 foot spacing application the locations of the signs proposed to be removed or already removed; Sign owners may not be delinquent on any financial obligation to the City as per their qualified settlement agreement; All Outdoor advertising signs erected with 1,000 foot spacing shall be designed with aluminum plating (example attached) or be subject to design review per Manager's designee or designees. Section 4. Should s. 479.07(9)(c), F. S. (2009) be repealed by the Florida Legislature, this pilot program shall automatically expire. Section 5. The City Manager is authorized (1) to notify the Florida Department of Transportation of the City's intention to allow removal and replacement of Outdoor advertising signs under 1,000 foot spacing as provided in this Resolution. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. Petitioner has not entered into "a qualified settlement agreement with the City" providing for the removal and replacement of outdoor advertising signs (as required by Section 3(a) of Resolution File Number 09-01061), nor has it at any time, much less "in advance" of having submitted its application (as required by Section 3(f) of Resolution File Number 09-01061), "specif[ied]" what sign(s) would be removed and replaced if the Proposed Sign were to be permitted. In or around November 2009, Petitioner retained the services of Mario Prats, a Florida-licensed surveyor since 1982, to measure how far the Proposed Sign location was to the nearest existing sign directly to the south of this location. When Mr. Prats went to the CanPartners Parcel, he did not see the stake that had been there in May 2009, when Mr. Barnes had done his measurements; nor did he see any other object marking the location of the Proposed Sign. He relied on a "drawing" to "approximate" where the sign would be. Using a "Topcon [measurement] device" and measuring, not along I-95, but the ramp to I-95, Mr. Prats determined that the distance between the Proposed Sign location and the closest sign south of this location was 1,032 feet. The only measurements offered and received into evidence to establish the distance between the Proposed Sign location and the nearest permitted sign (on the same side of the highway) were those taken by Mr. Barnes and Mr. Prats (as discussed above). Neither Mr. Barnes, nor Prats, determined that this distance was 1,500 feet or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order denying Petitioner's Application for the reasons set forth above. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of August, 2010.
The Issue Whether the sign of Petitioner is in violation of the Florida Statutes, Outdoor Advertising Law, Chapter 479 and particularly Chapter 479.07 for having erected this sign in violation of the zoning regulations and without a permit from the Department of Transportation.
Findings Of Fact An alleged violation notice was sent to Peterson Outdoor Advertising Corporation, Petitioner, by the Respondent, Department of Transportation, on July 27, 1977. The notice indicated that the sign owned by Petitioner located 300 feet north of 5-227, U.S. Highway 301 in Bradford County, Florida, with a blank copy was in violation of Ch. 479, Florida Statutes, Rule 14-10-05 (1)(a), Not zone for conforming sign - sign erected in a zoned agricultural area. Ch. 479.07(1) Florida Statutes, Rule 14-10.04 Sign erected without first [sic] obtaining a permit. A violation notice was received by Michael S. Nelson, lease representative for the Respondent, and a letter was sent to the District Administrator for Outdoor Advertising, Florida Department of Transportation, acknowledging receipt of the violation notice and requesting the Department of Transportation to set the cause for hearing. This administrative hearing is the result of such request. The Peterson Outdoor Advertising Corporation made an application for permit for a sign to be located at the location the subject sign now stands. The application for a permit was not approved for the stated reason that the requested location was in a zoned open rural area and outdoor advertising could not be permitted in such a location. Petitioner was so notified. Nevertheless a sign was erected by Petitioner and Respondent's inspectors found said sign at the location with no copy on it at the first inspection. Subsequent to that inspection, the sign was finished by Petitioner to advertise McDonalds, with the large golden "M", further stating: "Campers/ Buses 3 Miles Ahead on the Right, Open at 7:00 for Breakfast." The sign was erected without a permit in a zoned open rural area in Bradford County. The sign is approximately 15 feet off the right of way of Highway 301 in open rural country at least 3 miles from any industrial or commercial areas. Petitioner contends that he applied for a permit to erect the sign at the subject location but that his application was denied. Regardless, he erected the sign and has been endeavoring to have the rural area rezoned. Respondent, Department of Transportation, contends that the erection of the subject sign is in violation of the law inasmuch as it is the duty of the Department of Transportation to grant a permit before a sign is erected. Respondent further contends that the area in which the sign is located is in open rural country and the proposed sign location, even if it were rezoned to allow outdoor advertising, could not be permitted by the Department inasmuch as such rezoning would be "spot zoning" and contrary to the requirements of Chapter 479, Florida Statutes, Title 1 of the Highway Beautification Act of 1965 and Title 23, U.S. Code and contrary to the concept of "effective control" by the Florida Department of Transportation which has the duty to control outdoor advertising for the State of Florida. In response to a request to the Bradford County Zoning Commission, the following letter was received: Pursuant to our conversation on November 7, relating to the zoning classification of the C. M. Ritch property located approximately 2 miles South of Starke on Hwy. 301, the property is zoned Open Rural and under Bradford County Zoning Ordinances does allow outdoor advertising signs. The area in which the sign was erected is the area indicated in the letter. The Petitioner intentionally erected its sign in the open rural area of Bradford County and continues to allow it to stand although the Bradford County Zoning Ordinances show that no outdoor advertising is to be allowed.
Recommendation Remove the sign of Respondent for intentionally erecting a sign in an unzoned rural area without a permit from the Department of Transportation. Invoke the penalties provided in Section 479.18, Florida Statutes, for both the Petitioner and for the McDonald Corporation whose goods and services are advertised. Section 479.13, Penalties, provides: Any person, violating any provision of this chapter whether as principal, agent or employee for which violation no other penalty is prescribed, shall be guilty of a misdemeanor of the second degree, punishable as provided in Section 775.083: and such person shall be guilty of a separate offense for each month during any portion of which any violation off this chapter is committed, continued or permitted. The existence of any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon. DONE and ORDERED this 13th day of March, 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 Rick Hurst, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Michael S. Nelson Lease Representative Peterson Outdoor Advertising Corp. P. O. Box 301 Ocala, Florida 32670 L. M. Gaines, Director Bradford County Zoning Commission P. O. Drawer B Starke, Florida 32091 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: PETERSON OUTDOOR ADVERTISING NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL Petitioner, REVIEW AND DISPOSITION THEREOF IF FILED vs. FLORIDA DEPARTMENT OF TRANSPORTATION Respondent. / CASE NO. 77-1432T
Findings Of Fact Foster and Kleiser are the owners of signs located on I-275 at the off- ramp of 54th Avenue, Pinellas-Hillsborough Cloverleaf. These signs are 198 feet from the beginning of the pavement adjacent to the signs and 15 feet from the right of way. The location is in an unincorporated portion of Pinellas County. On December 22, 1972, Ace Outdoor Advertising Co., Inc., the predecessor in interest of Foster and Kleiser as regards this sign, sought and received a permit for the construction of a sign located at "I-75. . .five miles north of St. Petersburg." These permit numbers have been renewed every year until the present with Foster and Kleiser succeeding in interest to Ace Outdoor Advertising Co., Inc. through purchase in 1976. In late 1972, two members of the Department of Transportation, a Mr. Boger (an outdoor advertising inspector now deceased) and Mr. Moran along with Mr. Arthur Hempel, the President of Ace Outdoor Advertising Co., Inc. looked over the area in Pinellas County where the sign was intended to be constructed. At that time Mr. Hempel showed Mr. Boger and Mr. Moran the general area in which the sign would be erected, said area being a strip of approximately 1500 feet fronting I-275 just north of the 54th Avenue North cutoff. No specific site for the sign was stated to Mr. Moran or Mr. Boger and it was pointed out by the DOT personnel that a zoning change would have to be accomplished to permit any sign to be constructed. This rezoning was later made by the County Commission and the land in question was changed from A-1 (agricultural) to CP (Commercial Parkway) in 1973. The sign in question was not erected until on or about June 21, 1977, and is located approximately 198 feet north of the widening for the beginning of the off-ramp at the 54th Avenue North interchange of Interstate 275 in Pinellas County. Prior to the promulgation of Rule 14-10 the Department used as its rule and regulation regarding spacing of signs the Agreement between the Governor of the State of Florida and the United States Department of Transportation, which is now set forth verbatim in Rule 14-10.06 which was adopted in April 1977. The Agreement was enforced by the Department prior to 1976 when it was adopted as a rule. On or about July 27, 1977, the Department cited Respondent Foster and Kleiser for a violation of F.S. 479.02 and Rule 4-10.06 for having erected an outdoor advertising sign within 500 feet of the widening of the pavement at the exit from I-75.
Recommendation For the reasons stated above and in the light of the applicable law, since the sign in question is nonconforming and since currently valid permits have not been issued for the site at which it was erected in June, 1977, it is illegal, cannot be permitted and should be removed. DONE and ORDERED this 28th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1978. COPIES FURNISHED: John A. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Horace A. Andrews, Esquire 602 Florida National Bank Building St. Petersburg, Florida 33701 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-1430 FOSTER AND KLEISER, Respondent. /
The Issue Whether the outdoor advertising signs in question are in violation of the applicable statutes and regulations and whether their permits should be revoked.
Findings Of Fact The Respondent applied to the Petitioner for outdoor advertising permits at a location on the west side of State Road 263, 674 feet north of U.S. Highway 90, with signs facing north and south. Prior to making application with the Petitioner, Mr. Mooshie contacted the Tallahassee Leon County Department and was advised that the site was located within county jurisdiction. Mr. Mooshie applied for and received a permit from Leon County whereby the county asserted jurisdiction over the area in question. The site in question is within the city limits of Tallahassee and was in the city limits of Tallahassee at the time Mr. Mooshie applied for the permit. The permit applications submitted by the Respondent indicated that the sign site was not inside the city limits. State Permit Tag Numbers BB 729-35 and BB 730-35 were issued on July 22, 1990 for the site in question. The Respondent applied to the City of Tallahassee for a city permit for the subject site on July 11, 1990 and was advised that a permit could not be issued because a city permit had been issued to Lamar Advertising for a location 600 feet north on the same street on June 21, 1990. The Petitioner issued an outdoor advertising permit to Lamar Advertising for the site for which the city had issued a building permit prior to the final hearing in this case. The City of Tallahassee sign ordinance requires 2,000 feet spacing between billboards on the same side of the street. No sign structure has been erected at the site in question.
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 State Permit Tag Numbers BB 729-35 and BB 730-35 be revoked. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. COPIES FURNISHED: Vernon L. Whittier, Esq. Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 John S. Mooshie Wakoa, Inc. Post Office Box 12335 Tallahassee, Florida 32317 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, M.S. 58 Thornton J. Williams, Esq. General Counsel 605 Suwannee Street 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The central issue in this case is whether the Respondent is entitled to a sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether the sign which has been erected at that location is in violation of applicable provisions of Chapter 479, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs. The Respondent owns or controls an outdoor advertising sign (subject sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the centerline of I 4. The sign face and direction of the subject sign are visible from I 4 following that route as it is normally traveled, i.e. on the main-traveled way. The subject sign is no more than 480 feet from the interchange at Fairbanks and I 4. The subject sign was erected in June, 1979, when SR 424 was not designated a federal aid primary road and a state permit was not required. On May 17, 1979, the Department's then district sign coordinator issued a letter to Respondent in response to Creative Media's sign permit application which provided that "a state permit is not required at this time." (e.s.) The Respondent's application in 1979 specified that the sign location was not within city limits which is presumed true for purposes of this record. Further, the 1979 application specified that the sign would be located .1 of a mile (presumably 528 feet) from the intersection. That description of the proposed sign is also presumed true. Subsequently, Fairbanks became a part of the state highway system and a requirement for outdoor advertising permits for signs erected along that roadway became effective. The sign face for which the present permit is sought is within 500 feet of the I 4 interchange. On January 30, 1990, Inspector Dollery photographed the subject sign which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental Apartments at Heathrow". When Inspector Dollery visited the location on January 3 and 4, 1991, the sign face was painted white with only a telephone number (425-5100) depicted. On February 5, 1990, the Department's current district outdoor advertising administrator issued a notice of alleged violation regarding the subject sign. On February 26, 1990, the Respondent filed an application for a permit for the sign face in dispute. The 1990 application acknowledged that the sign was 480 feet from the I 4 intersection. The Department returned the application as not meeting the spacing requirements for signs facing I 4 and for being less than 500 feet from the interchange. POA Acquisition, an outdoor advertising company, holds permits for signs located on I 4 which are within 1500 feet of the subject sign.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign in violation of the rule as set forth in the notice of alleged violations dated February 5, 1990, and denying the permit application of the Respondent. DONE and ENTERED this 22nd day of April, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1991. APPENDIX TO CASE NO. 90-2193T RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 3 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: The six unnumbered paragraphs are addressed in the order presented. The first paragraph is accepted. The second paragraph is accepted. The first sentence of the third paragraph is accepted. The second sentence of the third paragraph is rejected as contrary to the weight of the credible evidence or irrelevant if intended to establish that a DOT official told Mr. Fekete to retain paperwork. The fourth paragraph is rejected as contrary to the weight of the credible evidence. If the sign had been constructed as represented on the application, the fifth paragraph could be accepted; however, Respondent did not build the sign as stated in the 1979 application nor can it be determined from this record whether the spacing requirements along I 4 could have been met in 1979. Certainly, for a sign facing on Fairbanks, the spacing requirements could have been met. The distance from the interchange is ultimately why Respondent's application would have failed in 1979 if accurately requested. Consequently, as drafted, the fifth paragraph must be rejected as contrary to the weight of the evidence. The sixth paragraph is accepted. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida 32801 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S.58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the outdoor advertising sign of Petitioner should be removed.
Findings Of Fact A notice of alleged violation of Chapter 479 and Section 335.13 and 339.301, Florida Statutes and notice to show cause were sent to Petitioner, Highland Court on August 18, 1977. The notice alleged that the subject outdoor advertising sign with copy, Highland Court, located 2.11 miles north of US 192; US 1 13 N Mile Post 2.11 was in violation of Chapter 479.07(2), and Rule 14- 10.04 having no current permit tag visible. The Petitioner asked for an administrative hearing which was properly noticed. Prior to the hearing the Petitioner stated that he was retiring and had no further interest in the sign. He stated that he was selling the business. Evidence was presented that the subject sign was erected without a permit from the Florida Department of Transportation. It has no current state permit tag attached. An application had been made for a permit but the permit was denied for the reason that the sign stands less than 500 feet from an existing sign to which is attached a current and valid permit.
Recommendation Remove the sign. DONE AND ORDERED this 21st day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Kenneth E. Gross, Manager Highland Court 24 North Harbor City Blvd. Melbourne, Florida 32935
Findings Of Fact On January 27, 1982, the department of Transportation notified the Petitioner, Vortex Springs, Inc., that its applications for the outdoor advertising sign permits which are the subject of these proceedings were denied because the zoning had been determined to be unacceptable. These applications seek permits authorizing two signs on I-10 in Holmes County, Florida, one approximately 1.38 miles west of SR 81 facing west, and the other approximately 1.1 miles east of SR 81 facing east. Both of these locations are inside the city limits of the municipality of Ponce de Leon, Florida. The signs for which the Petitioner seeks permits were already erected when the subject applications were submitted to the department. There was no other evidence presented that was relevant or would support additional findings of fact.
The Issue Whether the Outdoor Advertising Sign owned by the Petitioner qualifies for permitting as a non-conforming sign.
Findings Of Fact On August 5, 1996, the Department issued a notice of Violation of an illegally erected sign to Clarence E. Adams. The sign in question was located 9.240 miles south of the line between Georgia and Florida on real property that is now and always has been zoned agricultural. The property upon which the sign is located was purchased by Clarence Adams and his brother, Dennis C. Adams, in 1976. The sign was on the property when they purchased the property; and, although they did not own the sign, they have derived continually revenue from the rental of the property upon which the sign is located since 1976. The sign has been maintained in it present form since 1976 by its owner(s). The subject sign had never been cited previously by the Department for violation of the outdoor advertising statutes. The subject sign is located at mile post 9.240. The sign is not in the Department’s right of way. The sign is not a danger to the traveling public. The sign is located adjacent to and can be seen from the main traveled way of Interstate 75 which is a federal highway that is open to the public. The current owner, Ray Sheffield, testified and did not claim to have a valid permit. Clarence Adams admitted that he had never applied for such a permit. The Department proved by testimony and evidence that the subject sign does not have a valid outdoor advertising permit, and there is no record by the Department that it ever had a valid permit. Clarence Adams proved that the sign was at its current location in 1976 when Adams and his brother purchased the property. Adams proved that a sign was in that location as early as 1975. The Department and the Federal Highway Administration entered into an agreement in 1972 that prohibited the erection of outdoor advertising signs along federal highways in areas zoned agricultural. The Petitioner did not prove that the sign was erected prior to the agreement between the Department and the Federal Highway Administration in 1972.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding: That the outdoor advertising sign, which is the subject of the notice of violation and which is located at mile post 9.240, does not have a permit, is in violation of the law, and is not qualified to be grand-fathered in and permitted; and That the owners of the real property upon which the subject sign is located and putative owner of the sign, Ray Sheffield, be directed to remove the sign within 30 days; and That the owners of the real property be advised that, if the subject sign is not removed, the Department will seek an order of a court of competent jurisdiction directing the removal of the sign and assessing costs for obtaining the court’s order and the costs of removing the sign. DONE and ENTERED this 22nd day of May, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1997 COPIES FURNISHED: Kenneth Scaff, Jr., Esquire Post Office Drawer O Jasper, Florida 32052 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450
