Findings Of Fact By operation of Rule 60Q-2.019 F.A.C. and Rule 1.370 Fla.R.Civ.P. upon DOT's unanswered Requests for Admission, by DOT's unopposed Motion for Summary Recommended Order, and by stipulation of counsel that no material facts alleged within the motion are in dispute, the following facts are admitted and may be taken as true: The sign is located on I-75. I-75 is an interstate highway. No outdoor advertising permit has ever been issued by DOT for the sign. DOT has never owned the sign. The Sumter County Future Land Use Map designates the use of the land upon which the sign is located as agricultural. From 1977 to date, the zoning and land use designation for the land upon which the sign is located has been agricultural. Prior to 1977, all zoning and land use designations for the land upon which the sign is located have been agricultural. Lee was advised by DOT in 1992 that it was required to obtain an outdoor advertising sign permit for the sign. No written waiver of the requirement to obtain an outdoor advertising sign permit for the sign has been issued by the DOT. No DOT employee has ever advised Lee that Lee was not required to obtain an advertising sign permit for the sign. The prior owner of the sign never advised Lee that Lee was not required to obtain an advertising sign permit for the sign.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying a permit to Lee for the sign in question and ratifying its Notice of Violation 10B-MM-1995-0035F. DONE AND ENTERED this 18th day of June, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1996. COPIES FURNISHED: Will J. Richardson, Esquire Richardson Law Offices, P.A. Post Office Box 12669 Tallahassee, FL 32317-2669 Paul Sexton, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue Whether the Petitioner's outdoor advertising sign located at 1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF. Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits. On June 26, 1997, the above-referenced sign did not have a current valid permit. On June 26, 1997, the above-referenced sign was not an on-premises sign. Charles Tucker is the owner of the subject sign and the property on which it is located. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon. Charles Tucker has owned the subject sign since 1974. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes. There has been a seven-year period of time during which the subject sign displayed advertising copy. No structural changes have been undertaken on the subject sign since it was constructed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued. DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Mark Gamble Real Estate Representative Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811 Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether the Department of Transportation (Respondent) should approve the application filed by Thoroughbred Development, Inc., and Rodney Dessberg (Petitioners) to permit an existing sign under the "grandfather" provision set forth in section 479.105(1)(e), Florida Statutes (2012).1/
Findings Of Fact The Respondent is the state agency charged with regulation and permitting of certain outdoor advertising signs placed on specified highways. The Petitioners are the applicants for a sign permit, application number 58806/58807. The Petitioners own the sign and the property upon which the sign is located. The sign and property are located on U.S. 41, a federal aid primary highway designated in 2003 as a "Scenic Highway." The relevant portion of U.S. 41 is also referred to as the Tamiami Trail. The sign at issue in this proceeding (the "1964 sign") was erected in 1964 by owner Blue Heron fruit shippers. The sign has remained unpermitted, structurally unchanged, and continuously maintained at the same location since installation. The 1964 sign was built on a parcel of land (the "sign parcel") located at 7450 Tamiami Trail, Sarasota, Florida. A small commercial building also occupied the parcel. The location is within an unincorporated part of Manatee County. The sign parcel has been zoned for commercial use since the erection of the sign in 1964. The sign is not located on state right-of-way and is not a safety hazard. When the 1964 sign was erected, it was used to promote the Blue Heron fruit shipping business located on an adjacent parcel at 7440 Tamiami Trail, Sarasota, Florida (the "Blue Heron parcel"). At all times material to this case, the two parcels have had separate legal descriptions. The parcels have separate driveway connections to Tamiami Trail. For reasons unknown, the addresses of the parcels were changed at some point, but the legal descriptions of the parcels have not been amended. Although the parcels were presumably commonly owned or leased by the Blue Heron fruit business at the time the 1964 sign was erected, the parcels were independently sold and owned individually by separate purchasers. The sign parcel is currently designated as 7851 North Tamiami Trail, Sarasota, Florida. The commercial building remains on the property. The Blue Heron parcel is currently designated as 7849 North Tamiami Trail, Sarasota, Florida. In October 1976, Kerry and Jane Kirschner purchased the Blue Heron parcel and the fruit business thereon. The Kirschners continued to operate the fruit business. The sign parcel was owned by another individual. Although there was no written agreement between the Kirschners and the owner of the sign parcel, Mr. Kirschner testified at the hearing that he made a monthly payment to the owner of the sign parcel so that he could continue using the sign to promote the fruit business. It is reasonable to presume that the monthly payment was based upon an agreement between the two owners. It would be unreasonable to assume that the payment was a gift from Mr. Kirschner to the owner of the sign parcel. In January 1978, the Kirschners purchased the sign parcel from the owner to whom Mr. Kirschner had been paying rent. Mr. Kirschner testified that the Kirschners bought the sign parcel to obtain the commercial building and to continue using the 1964 sign to promote the fruit business. In October 1978, "Florida Outdoor, Inc." filed an application for a two-sided sign (the "1978 sign") located on Tamiami Trail, 444 feet to the north of the 1964 sign. A sign permit application must identify the location of regulated signs located nearby the site of the proposed sign. Because the 1964 sign appeared to advertise an on-premises business and was therefore not subject to regulation, the applicant did not reference the 1964 sign. The Respondent approved the application and issued a permit (tag number AW881/AW882) to the applicant. In November 1979, "Florida Outdoor, Inc." filed an application for a two-sided sign (the "1979 sign") located on Tamiami Trail, 150 feet to the south of the 1964 sign. Again, the applicant did not reference the 1964 sign. The Respondent approved the application and issued a permit (tag number AW698/AW699) to the applicant. Both the 1978 and 1979 signs remain at their permitted locations. The Kirschners never combined the two parcels. They sold the Blue Heron parcel in 1986 and sold the sign parcel in 1993. The Notice of Violation dated January 31, 2012, was the first violation ever issued by the Respondent regarding the 1964 sign. At the hearing, the Respondent acknowledged that, had the 1964 sign not been considered exempted from regulation as an "on premises" sign, it could have been permitted prior to the installation of the 1978 and 1979 signs. Following the installation of the 1978 and 1979 signs, the 1964 sign could not have been permitted (absent the "grandfather" provision) due to sign spacing regulations not at issue in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting the application for the sign permit referenced herein. DONE AND ENTERED this 31st day of December, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of December, 2012.
The Issue There are two separate issues in this case: (1) Whether Petitioner breached its contract with Respondent by not making payments for a sign lease, thereby resulting in the sign permit becoming invalid; and (2) Whether Petitioner constructed a roadside sign illegally, i.e., without a permit.
Findings Of Fact Petitioner, SG Outdoor, is a company engaged in the business of outdoor advertising in Florida. Respondent is the State of Florida ("State") agency responsible for monitoring compliance with State and Federal laws relating to outdoor advertising. According to those laws, signs within 660 feet of primary or interstate roadways visible from those roadways are subject to advertising regulations. There is currently a 1,500-foot spacing requirement (up from 1,000 feet in 1984) between signs. Further, signs must be located on land zoned for commercial and industrial use. Petitioner owns two signs which are at issue in this proceeding. One of the signs is a single facing sign of wood construction with a seven-foot height above ground level. The sign is assigned Tag No. AU557. The sign is situated just off Interstate 4, .871 miles east of State Road 33 in Polk County, Florida. This sign will be referred to herein as the "Original Sign." The Original Sign was built in 1971 and was located, at all times relevant hereto, on land owned by Mrs. Ona Grimes until that land was purchased by the State in October 2002. Petitioner also constructed another sign at approximately the same location. This sign, referred to herein as the "New Sign," has a double-faced, single-metal pole and is considerably higher in height than the Original Sign. Both the Original Sign and the New Sign are located on property which DOT contends is zoned as "Pasture, with residence." However, Polk County did away with its zoning ordinance in March 2000 and replaced it with Land Use Districts. The current Land Use District designation for the site is Business Park Center (within the Green Swamp Area of Critical State Concern). There was no competent testimony at final hearing as to whether that designation constitutes commercial or industrial zoning for purposes of roadside signs. The Original Sign was purchased by Petitioner in 1991 and was located on the Grimes property. Petitioner entered into a Ground Lease with Grimes that had a term of 30 years at a payment of $1,500 per year. In 2002, DOT entered into negotiations with Grimes to purchase the property. When DOT purchases property on which a roadside sign already exists, DOT may take the sign by way of condemnation through eminent domain (sometimes referred to by DOT as a "Take"). In such cases, the State must reasonably compensate the sign owner for the taking of its sign. In the alternative, the State may assume the sign lease and become a lessor to the sign owner. In that case, the sign owner must make its lease payments directly to the State. On May 22, 2002, DOT sent a letter to Petitioner explaining that DOT was in the process of acquiring the right of way on which the Original Sign was located. DOT offered to purchase (or Take) the sign from Petitioner for $17,300. While that offer to Petitioner was pending, DOT went forward with the purchase of the Grimes property. The purchase agreement for the property was signed by Grimes on July 11, 2002. Four days later, a letter from DOT to Petitioner was issued which said: Subsequent to receiving agreement and signed ODA [out door advertising] disclaimer from the property owner, an offer has been made to SG Outdoor, Inc. for the purchase of the ODA structure. Negotiations are ongoing. However, the purchase of Grimes property did not occur immediately. Meanwhile, in August 2002, Grimes entered into an illegal lease with Lamar Advertising, giving Lamar the same rights it had already contracted away to Petitioner. Petitioner was unaware of the lease with Lamar at that time. Such a lease would have been in violation of the already-existing lease between Grimes and Petitioner. At almost the same time, a DOT memorandum indicated that DOT was still "involved in ongoing negotiations" with Petitioner concerning the sign. The Grimes property purchase (by DOT) finally closed on October 1, 2002, at which time DOT became the owner of the Grimes property. Because of this fact, Petitioner was supposed to make its annual lease payments to the State of Florida ("State") as the new owner. Stated differently, the State became Petitioner's new lessor. On October 14, 2002, Lamar Advertising filed a Sign Permit Application with the Polk County Building Division. The application was for approval of its sign on the Grimes property. The application included a copy of Lamar's lease with Grimes; the lease had a 10-year period and a payment of $4,000 per year.1 On July 8, 2003 (ten months after DOT purchased the property), Petitioner filed a permit application with Polk County for the New Sign. Petitioner did not, at that time, have permission from DOT to erect a new sign, but believed it could obtain that permission after the fact. Petitioner then went forward with the construction of the New Sign. Meanwhile, Petitioner sent Grimes a check in October 2003, for its lease payment for the period June 1, 2003, through May 30, 2004. By that time, the State already owned the Grimes property. A member of the Grimes family sent Petitioner's check back to Petitioner in January 2004, explaining that all payments should be made directly to the State. There is no evidence in the record as to whether Petitioner attempted to make a lease payment to the Department at that time or at any other time. In November 2003, DOT issued a certified letter to Petitioner addressing Sign Permit No. AU557 that said: On October 2, 2002, the above referenced parcel was purchased by the Florida Department of Transportation. Although the Department will honor an existing lease, it will not engage in any new lease agreements nor grant permission for the referenced sign to remain. Since any potential oral agreement with the previous owner has expired, the Department requests that the [Original] sign be removed. Clearly DOT was mistaken. Petitioner had a written, not oral, lease with the prior owner. In response, Petitioner sent DOT a copy of its Ground Lease with Grimes. At that time, Petitioner also asked for a meeting with DOT's acquisition director to continue negotiating a fair price for the Original Sign. Several months later (on July 9, 2004), DOT issued its Notice of Violation regarding the Original Sign. The notice said "that the outdoor advertising sign referenced above has been acquired by the Department" (rather than saying the Department had purchased the land). The notice directed Petitioner to immediately remove the sign from the premises. The notice was partially in error; DOT had actually acquired the land, not the sign. Petitioner was in breach of its lease with the State by failing to make lease payments as required by the lease which DOT had assumed. However, it is unclear as to whether, upon notice of receipt of the written lease, DOT had ever advised Petitioner to send its lease payments directly to the Department. The Notice of Administrative Hearing Rights attached to the DOT Notice of Violation indicates a deadline of 30 days from receipt of the Notice for filing such a request, i.e., on or about August 10, 2005. Petitioner responded to the Notice with another letter (dated July 14, 2009) explaining again that it had a valid lease with Grimes for the sign location. Petitioner's letter asked DOT to abate its violation notice and reinstate Petitioner's permit. It also stated that "[i]f the State decides not to acknowledge the Judicial process [the ongoing probate dispute with the Grimes family concerning the lease with Lamar] and still proceeds with the Notice of Violation, then upon receiving your next correspondence, we will exercise our privilege to request an administrative hearing." Petitioner contends that the quoted statement constituted its request for an administrative hearing. However, the plain reading of the statement indicates that it is a statement of future intent based upon future actions by DOT. DOT then issued a letter dated August 10, 2004, to Petitioner explaining that the permit for the Original Sign had been revoked. The letter directed Petitioner to remove the sign. The letter stated that if Petitioner does not do so, then DOT would have the right to remove the sign. (As of the date of the final hearing in this matter, the sign was still in place.) The August 10 letter, in response to Petitioner's July 14 letter, appears to be the "next correspondence" Petitioner had requested. The exercise of its right to an administrative hearing would, therefore, be due on or about September 11, 2004. On September 8, 2004, Petitioner sent a letter to Holschuh declining DOT's offer to purchase the Original Sign for $17,000. That offer had been made in May 2002.2 This letter suggests a counter-offer of $82,500 as the purchase price. The letter did not invoke Petitioner's right to an administrative hearing. Holschuh responded that she was not involved in acquisitions, and Petitioner should contact the district office (with whom Petitioner had previously negotiated). Instead of heeding Holschuh's directions, Petitioner then sent her another letter asking her to send the correspondence on to someone in the acquisition division. The new letter also repeats the counter-offer of $82,500. This letter did not invoke Petitioner's right to a formal hearing, either. About one year later, on October 6, 2005, DOT issued another Notice of Violation, this one addressing Sign Permit No. AU557a (which Holschuh at final hearing said referred to the Original Sign, although there was no "a" nomenclature on the July 9, 2004, Notice of Violation). Also, on October 6, 2005, DOT issued a Notice of Violation addressing Sign Permit No. AU557a#2, which Holschuh said referred to Petitioner's New Sign, even though no permit for the New Sign had ever been issued by DOT. The New Sign by this time had been completed and was being used for outdoor advertising. Petitioner understands the need for a permit to construct a new outdoor sign on the State road right-of-ways, but opined that it believed it could do so after the fact. Petitioner has only obtained approval from Polk County for erecting the sign, an event necessary for construction purposes, but irrelevant to DOT requirements. In the letter to DOT from Petitioner dated October 26, 2005 (and presumably accepted by DOT as Petitioner's request for a formal hearing), reference is made to Sign Permit No. AU557a#2, i.e., the New Sign. However, the letter addresses the Original Sign and its perceived value by Petitioner. It is patently unclear as to which sign is actually being addressed, but facts surrounding both signs were presented at final hearing and both have been addressed herein. Nonetheless, Petitioner's October 26, 2005, letter was submitted within 30 days of the latest Notice of Violation and was presumably intended to invoke Petitioner's right to a formal administrative hearing. This letter was then forwarded to DOAH by DOT in March 2009, for the purpose of conducting the hearing. (No evidence was presented as to why the DOT's cover letter and Petitioner's request for hearing were not submitted to DOAH until three-and-a-half years after the letter was written.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, reversing the revocation of Sign Permit No. AU557 and providing Petitioner, SG Outdoor, just compensation for that sign. Further, the final order should deem the newly constructed sign on the same site to be unauthorized and order its removal. DONE AND ENTERED this 19th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 19th day of November, 2009.
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in these causes is whether denial of Petitioners' outdoor advertising sign site permit applications by Respondent were correctly determined under Subsection 479.111(2), Florida Statutes (2003), on the basis that the sign sites were unzoned commercial/industrial areas; and on the basis that within attending factual circumstances, the sign site did not qualify as unzoned commercial/industrial areas as defined in Subsection 479.01(23), Florida Statutes (2003).
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Sections 120.569 and 120.57, Florida Statutes (2003); and the entire record of this proceeding, the following relevant and material findings of fact are determined: Petitioner, Tropical Landholdings, a Florida Corporation, was created in 1998 and purchased approximately 700 to 800 acres of land comprised of residential multi-family and commercial properties along Interstate 75 (I-75) in Punta Gorda, Florida. On September 8, 2003, Petitioner, Crown Advertising, Inc., of Belleview, Florida, submitted three outdoor advertising sign site permit applications to the Department for review. On September 23, 2003, the Department denied the three outdoor advertising sign site permit applications for the following reasons: (1) the sign sites were not permitted under the local land use designation of site (§ 479.111(2), Fla. Stat. (2003)); and (2) the sign sites did not qualify as unzoned commercial/industrial area. § 479.01, Fla. Stat. (2003). The sign site permit application forms used by Petitioners in these causes were composed and authorized by the Department. The form required the applicant to obtain and provide information regarding the proposed sign site, what is proposed to be constructed on the site, and where the proposed construction is to occur. The sign site permit applications also required the applicant to secure information from the appropriate local zoning official of the future land use designation and the current zoning of the proposed sites enacted by the local government's Comprehensive Plan and land use development regulations. This form required information from the local government as to whether the applicant is or is not in compliance with all adopted local ordinances. Permission to erect an outdoor sign structure on the identified sign site is subject to approval by the City. Petitioners complied with the requested information. The local government, the City of North Port, approved the three sign site permit applications in question and granted Petitioners permission to erect three outdoor billboard signs. This local grant of approval was then subjected to concurring approval by the Department. After receiving the sign site permits that were approved by the City, the Department engaged the services of a consultant to conduct on-site review and identification of: (1) the local government's designation for each proposed sign site; (2) the permitted uses of each proposed sign site (local drainage facilities, pipeline corridors, underground communication cables, electric transmission lines, and outdoor advertising signs); and (3) a review of adjacent and surrounding parcels. The consultant reported to the Department the factual circumstances attendant the three locally approved sign sites. It should be noted that the consultant did not render an opinion regarding the Department's approval or denial of the sign site permit applications. The sign sites in question were zoned under the local "land use designation" of the City of North Port's Ordinance 02-46, Section 53.146 (Ordinance 02-46), as a "utility industrial corridor." The zoned land was composed of strips of land measuring 25 to 70 feet in width on the west side and 160 to 170 feet in width on the east side. The "permitted governmental uses" of a parcel zoned as a "utility industrial corridor," included such uses as underground communication cables, electric transmission lines, and outdoor advertising signs. Ordinance 02-46, under the title "Prohibited Uses and Structures," specifically prohibits "all commercial and industrial uses." Based upon a review of all information provided by Petitioners, the local government, and its consultant, the Department first determined the three sign sites on which the subject signs were to be erected and located, prohibited commercial or industrial uses. The Department then determined, based upon an analysis of the materials provided by its consultant and the City of North Port, the three sign sites in question had not been zoned for commercial or industrial uses as a part of the local government's comprehensive zoning plan. Based upon (1) the prohibition of commercial or industrial uses and (2) no commercial or industrial zoning of the sign sites, the Department concluded these three sign sites were zoned "primarily to permit outdoor advertising," a prohibited function. The denials were required. Under the local land use designation of Ordinance 02-46, the City of North Port's permitted uses included local drainage facilities and a pipeline corridor. Under governmental uses designation of Ordinance 02-46, the City of North Port's permitted uses included underground communication cables, electric transmission lines, and outdoor advertising. However, Ordinance 02-46 specifically prohibits all commercial and industrial uses under the governmental uses designation. When questioned by Petitioners, Ms. Holschuh testified "that the Department's intent was to allow [sign] permits whenever possible and never prohibit the installation of billboards." From this specific statement of testimony, Petitioners argued that "implementing the intent the Department must look beyond the labels of the zoning and look at the actual primary uses allowed under those designations." (Emphasis added.) Ms. Holschuh disagreed with Petitioners' characterization of the Department's procedures and convincingly maintained that the Department based its denials on "sign site zoning" and factors considered for determining an "unzoned commercial/industrial area" as defined by statute. Continuing with its argument, Petitioners conclude "[T]he department . . . appears to be in conflict with Judge Barbara Staros' decision of February 16, 2004, in a rule challenge proceeding, where she analyzed the Sign Permit procedure under Section 479.07, Florida Statutes." In her Final Order, Administrative Law Judge Barbara Staros made a Finding of Fact in paragraph 30, stating: Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan. Page 13. The procedures followed by the Department in this proceeding complied with Judge Staros Finding of Fact in paragraph 31, where she wrote: The Department uses the application and the information contained therein to determine whether a proposed sign location falls within the definition of a "commercial or industrial zone." If it does, [fall within] then the Department determines whether those designations were adopted as part of the local government's comprehensive planning efforts or were "primarily" adopted to permit outdoor advertising signs on that location. Page 30. Based upon it's receipt, review, and analysis of the specific facts provided by all parties of interest, the Department determined the sites where the signs were to be erected prohibited commercial or industrial use. The Department factually determined that no local zoning identified the sites as commercial or industrial. The Department concluded correctly and in accord with Florida Administrative Code Rule 14-10.0052 that these three sign sites were zoned by the City of North Port, the local governmental entity, "primarily to permit outdoor advertising" contrary to sign site permit procedures under Section 479.07, Florida Statutes (2003). Based upon the evidence of record and considering the size of the sign site, the local government's zoning of the site, designated uses of the site, and prohibited uses on the site, denial of the sign applications was correctly determined pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052. Based on the testimonies of Ms. Holschuh and James Duff, who testified regarding his ownership, property taxes paid, and the investors' inability to use the property in question to their economic advantage, Petitioners failed to carry the burden of producing a preponderance of credible evidence to establish that the Department incorrectly and/or wrongfully denied Petitioners' applications for three sign site permits pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052.
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. 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 12th day of May, 1999.
Findings Of Fact The Department of Transportation cited National Advertising Company for the maintenance of eight (8) outdoor advertising signs without current permit tags in violation of spacing requirements. The subject signs are listed on Exhibit 1 attached hereto and are owned and maintained by Respondent. The subject signs are located along I-95 in the vicinity of Orlando, Florida. The subject signs had valid county tags for 1972. The subject signs had no tags for 1973, but by agreement between Respondent and Petitioner this lack of 1973 tags has been disregarded. In the fall of 1974 Petitioner issued Respondent county tags for the subject signs. When affixing these tags to the signs Respondent discovered that there was some confusion over whether the signs were in the county or were in the city limits of Orlando. Respondent went to the City offices and asked if the signs were in the city limits and was told that the City did not know. Respondent then went to the County offices and was told that the signs were in the city. Respondent them communicated this information to Mr. Kennedy, an employee of the Department of Transportation in the DeLand office who agreed that the tags would not be put on the subject signs unless it was determined at some later date that the signs were actually located in the county and not in the city. At the time of this agreement Respondent was in possession of the 1974 county tags and was prepared to affix then to the subject signs. Because of the agreement however, the tags were not affixed to the subject signs. Confusion persisted over the question of whether the signs were located inside or outside of the city limits. In the fall of 1975, Respondent submitted a permit application for annual renewal for the subject signs requesting city tags. Petitioner granted this application and in late 1975 issued city tags for the subject signs. These tags have since been affixed to the subject signs and remain there at the time of this hearing. Representatives of Petitioner visited the Orange County Zoning Department on February 11, 1976 in attempt to determine whether the subject signs were located in the county or in the city. Petitioner's representatives determined that the signs were located in the county. During 1974 and 1975 there was a great deal of confusion on the part of both Petitioner and Respondent concerning the question of whether the subject signs were in Orange County or in the City of Orlando. Respondent, in good faith, diligently attempted to resolve the confusion. It appears however, that Petitioner and Respondent were not able to resolve the confusion until early 1976 and shortly before this hearing. Respondent made no application for 1976 permits for the subject signs before May 13, 1976.
The Issue Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this sign permit dispute, Petitioner, Department of Transportation (DOT), seeks to revoke the permit for an off- premise outdoor advertising sign owned by Respondent, North Florida Pecan 1 & 2, Inc. (Respondent), on the grounds that the original sign was destroyed by a fire in June 1998, the newly rebuilt sign has lost its nonconforming status, and any rebuilt sign is now illegal. In response to these charges, Respondent contends that the fire that destroyed the sign was an act of criminal mischief or arson, rather than an Act of God, and thus the sign still qualifies for a nonconforming status. The sign in question is located 12.2 miles north of the Flagler County line on the west side of Interstate 95 (I-95) facing south, and is perhaps a mile or so south of the intersection of State Road 207 and I-95 (intersection) in St. Johns County, Florida. Respondent does not own the property where the sign is located, and it conducts no other business activities on that property. The property on which the sign is located is zoned Open Rural by St. Johns County (County), and it is not designated predominately for commercial or industrial uses by the County under the County's future land use map, comprehensive plan, or zoning ordinances. The sign is used to advertise Respondent's combination gas station and "open-area fruit market" located "just off" the intersection. The parties have stipulated that the sign was originally constructed more than 20 years ago before the current sign regulations became effective; under the present law, it would be a nonconforming sign and illegal. On May 27, 1998, a thunderstorm occurred in St. Johns County, resulting in between one-quarter and one-half inch of rainfall in the area. Due to a lightning strike on a tree, a 2-acre fire started approximately 1,000 feet southwest of the intersection in the vicinity of the sign. Although firefighters believed they had "knocked out" the fire within a day or two, the fire continued to smoulder under the dampened top layer of organic matter for several weeks until June 15, 1998, when it "worked its way back to the surface," broke out again, and cleared the containment line of the earlier fire. Aided by a light wind from the southeast and extremely dry conditions, the fire quickly spread eastward at the rate of 1,000 to 1,500 feet every 15 minutes and consumed several hundred acres, including the land on which Respondent's sign was located, before it was brought under control. That fire is commonly referred to as the Fort Peyton fire. In determining the cause of the Fort Peyton fire, forestry officials could not find any indicators of arson, and visual burn patterns clearly indicated that the new fire's origin was where the May 27 fire had begun. Therefore, it was officially classified as a "rekindle or breakout" of the May 27 fire, which was started by lightning. Put another way, the fire was the result of an Act of God, which is "the sudden manifestation and forces of nature." On either May 30 or June 5, 1998, depending on whether court or forestry records are accepted as being the most accurate, a fire began in Flagler Estates, which, "as the crow flies," lies approximately 12 to 15 miles southeast of the Fort Peyton fire. The Flagler Estates fire, however, was the result of an unattended illegal burn which was started by three individuals and went out of control. The fire was brought under control the same evening by firefighters, but only after some 450 surrounding acres were destroyed. The three individuals were later charged with arson. Respondent established that the prevailing winds during May and June 1998 were from the southeast and that "spoilers" or "floaters" (hot debris) from existing fires can sometimes float in the air and ignite new fires several miles away. Indeed, Respondent's investigator observed spoilers from inland fires floating through the air some 8 or 9 miles out in the Atlantic Ocean while he was fishing during that period of time. Accordingly, Respondent contends that it is just as likely that a spoiler floated northeastward from the Flagler Estates fire on May 30, 1998, and ignited the Fort Peyton blaze, some 12 to 15 miles away. If this theory is accepted, it would mean that the Fort Peyton fire would be attributable to arson, and not to an Act of God. The foregoing assumption has been rejected for several reasons. First, spoilers from the Flagler Estates fire did in fact ignite several spot fires in the area, but all of these spot fires occurred on the same day as the fire started and were within an eighth of an mile from the Flagler Estates perimeter. Second, it is highly unlikely that a spoiler would float up to 15 miles and then lie dormant for two weeks before igniting the Fort Peyton fire. Finally, the theory goes counter to the more persuasive evidence given by the supervising forester who investigated the Fort Peyton fire and concluded that it was an outbreak of the earlier fire that was started on May 27, 1998. After the sign was destroyed, Respondent rebuilt the sign at the same location using substantially the same materials that had composed the sign before it burned. However, the materials used to rebuild the sign were not part of the sign structure which was burned in the Fort Peyton fire. The new sign is the same size, shape, and height of the destroyed sign.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by North Florida Pecan 1 & 2, Inc., under sign permit number BR 252-55 is illegal and must be removed. The permit should also be revoked. DONE AND ENTERED this 17th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this day 17th of March, 2000. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 J. Stephen Alexander, Esquire 19 Old Mission Avenue St. Augustine, Florida 32084 Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
The Issue By a Petition filed October 21, 1988, Petitioner sought a determination, pursuant to Section 120.56, Florida Statutes, that a non-rule policy of the Department of Transportation was a rule that: (a) was not adopted properly under Chapter 120 Florida Statutes, and (b) was an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner submitted application for state outdoor advertising permits which were received in the Department of Transportation (DOT) District Office on August 8, 1988, for a location on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. Petitioner was denied the permits on the ground that permits had been issued to another outdoor advertising company prior to July 1, 1984, for a location less than a thousand feet from Petitioner's proposed site on the same side of the highway. There have been no tags displayed or sign maintained at the earlier site since issuance of the permits. It is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within 30 days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with sections 479.07(5)(b) and (8)(a), Florida Statutes. DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes. Petitioner is in the outdoor advertising business, particularly off- premises signs, and is so licensed. The spacing impediment caused by the earlier permits is the only basis for denial of Petitioner's permit applications by DOT as Petitioner meets all other requirements. Petitioner will have to confront the agency's "interpretation" with each permit application it makes. Petitioner is currently challenging the specific above-referenced permit denials in Section 120.57(1) proceedings which both parties herein opposed consolidating with the instant rule challenge when the undersigned suggested that possibility. Respondent has not challenged Petitioner's standing to bring this rule challenge, and Petitioner has demonstrated standing to bring it. The Petitioner asserts that the agency's acknowledged foregoing interpretation of the named statutes constitutes an arbitrary and capricious unpromulgated rule, applied without legislative authority and prejudicing Petitioner and all like-situated lessees of off-premises signs because it creates a perpetual grandfather clause for sign permits in existence prior to July 1, 1984, and new applicants post-1984 cannot know where earlier permits have been issued due to the lack of DOT enforcement of tag posting and sign maintenance requirements. Phil Brown, DOT Right of Way Specialist, testified by deposition that, indeed, if a pre-1984 permittee never erects a sign or posts tags, the spacing impediment can only be located through DOT records, in this case, a computer search. Phil Brown relied on DOT training sessions which advised him that Section 479.07(9), Florida Statutes, requires the current agency interpretation/non-enforcement of Section 479.07(5)(a) to pre-1984 permittees, and he applied it to Petitioner's application. In so doing, he utilized Section 479.05(9) so as to count the thousand foot spacing requirement for the permit site which had been requested by the Petitioner not from a permitted sign (which is the statutory phrase contained in Section 479.09) or from a sign in existence, i.e. a sign already erected, or from a tagged erected sign, or from a displayed tag, but instead counted the thousand feet, as he had been directed, from the site described on the permit issued pre-1984. Gary Kissinger, designated by DOT as its employee most knowledgeable about the application of statutes and rules to outdoor advertising, testified by deposition that pre-1984 outdoor advertising sign permits can, absent a future law change, go into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as they keep renewing and paying their fees, even though Mr. Kissinger understood the purpose of the 1984 amendments to be the prevention of advertisers "stockpiling" unused sites/permits from the enactment date forward. No evidence established Mr. Kissinger as the drafter of the legislation or of the agency rules promulgated thereunder, and no evidence was submitted in the form of committee minutes, notes, legislative journals or by other means to clearly establish a legislative intent either coinciding or differing from Mr. Kissinger's perception. Mr. Kissinger relies for the DOT "interpretation" upon the definition of "nonconforming" signs given in Section 479.01(12), Florida Statutes. He does not rely for DOT's interpretation on the exceptions listed in Section 479.16, Florida Statutes. It is his view that notwithstanding Rule 14-10.006(1)(b)(7), Florida Administrative Code, those permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained/displayed. Even though DOT's current permit application form requires applicants such as Petitioner to state, to the best of their knowledge, the location of the permitted sign nearest to the site for which they are applying, there is no way any post-1984 applicant can find out about preexisting unutilized permits on its own without getting that information from DOT. Only after the application is submitted, does DOT run its own check and deny the new permit application if a permit for a site within the distance given in Section 479.09 exists regardless of whether there is a sign erected or a tag displayed at the earlier permit's site. DOT applies its interpretation statewide and asserts that all the agency is doing is to not apply the posting and erection requirements of Section 479.07(5)(a) retroactively to pre-1984 permits, upon recognized standards of prospective statutory construction, and that the agency has not established any policy or rule thereby. The statute in question came about as a substantial rewording of Section 479.07, Florida Statutes, by way of amendments contained in Chapter 84- 227, Laws of Florida, which provided as follows: Sign permit required.-- Except as provided in s. 479.16, no person shall erect, operate, use, maintain, or cause to be erected, operated, used, or maintained, any sign on the state highway system outside incorporated areas or any portion of the interstate or federal-aid primary highway systems without first obtaining a permit there for from the department and paying the annual fee as provided herein. No person shall apply for a permit unless he has first obtained the written permission of the owner or other person in lawful possession or control of the site designated as the location of the sign in the permit application. (3)(a) Application for a sign permit shall be made on a form prescribed by the department and a separate application shall be submitted for each permit requested. A permit shall be required for each sign facing. As part of the application, the applicant or his authorized representative shall certify in a notarized signed statement that all information provided therein is true and correct and that, pursuant to subsection (2), he has obtained the written permission of the owner or other person in lawful possession of the site designated as the location of the sign in the permit application. Every permit application shall be accompanied by the appropriate permit fee; a signed statement by the owner or other person in lawful control of the site on which the sign is located or will be erected, authorizing placement of the sign on that site; and, where local government regulation of signs exists, a statement from the appropriate local government official indicating that the sign complies with all local government requirements and that the agency or unit of local government will issue a permit to that applicant upon approval of the state permit application by the department. The annual permit fee for each sign facing shall be $25 for 20 lineal feet or less, and $35 for over 20 lineal feet. No fee may be prorated for a period less than the remainder of the permit year to accommodate short-term publicity features; however, all first-year fees may be prorated by payment of an amount equal to one-fourth of the annual fee for each remaining whole quarter or partial quarter of the permit year ending on January 15. Permit applications shall be acted on by the department within 30 days after receipt of the application by the department. Applications received after September 30 shall include fees for the last quarter of the current year and fees for the succeeding year. (4)(a) For every permit issued, the department shall furnish to the applicant a serially numbered permanent metal tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway, and shall be attached in such manner as to be plainly visible from the main-traveled way. The permit shall become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit shall be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. A permit is valid only for the location specified thereon. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfers fee of $5 for each permit to be transferred. However, the maximum transfer fee is $100 for any multiple transfer between two outdoor advertisers in a single transaction. If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued shall apply to the department for a replacement tag Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site. (5)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits of the permittee which were issued prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags not renewed shall be returned to the department for cancellation by January 15. Permit tags not renewed or returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If the permittee has not submitted his fee payments by January 15, the department shall, no later than February 1, send a violation notice or the permittee requiring fee payment within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due, or, in the alternative to these payments, the filing of a request for an administrative hearing to show cause why his signs should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit shall be automatically reinstated and such reinstatement shall be retroactive to January 15th. If the permittee does net respond to the violation notice within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (6)(a) Any sign not granted a permit by the effective date of this act shall not be granted a permit unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway; One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway; The minimum spacing provided herein shall not preclude the permitting of V-type, back-to-back, side-to-side, stacked or double faced signs at the permitted sign site. No sign shall be granted a permit pursuant to this chapter to locate on any portion of the interstate or federal-aid primary highway systems that: Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporate area; or Exceeds 65 feet in sign structure height above the crown of the main-traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign of facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. (7) Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this provision and permits shall not be issued for signs in such areas. The department shall adopt rules within 130 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enacted or enacted primarily to permit signs. A Reviser's Bill renumbered and made scrivener's changes in the amendatory language so that the "interpreted" portions of Section 479.07 were codified as follows: (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The, permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permit is valid only for the location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100. A permittee shall at all times maintain the permission of the owner or other person in lawful control of the sign site to have and maintain a sign at such site. (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags which are not renewed shall be returned to the department for cancellation by January 15. Permit tags which are not renewed or returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side-to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main-traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. Section 479.01(12) as amended provides: 'Nonconforming sign' means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions; of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was; lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. [Emphasis supplied.] The effective date(s) of Section 479.07 is significant as provided in Section 27 of Law 84-227: This act shall take effect October 1, 1984, except that the amendments to Section 479.07 F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis Supplied.] Likewise, the exceptions set out in Section 479.16, Florida statutes, as amended by Chapter 84-227, must be considered. They are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits," in that language. The new statue defines "erect" at Section 479.01(4) and "sign" at Section 479.01(14) as follows: (4) "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change to advertising message or customary maintenance or repair of a sign. (14) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department. Both of these foregoing subsections are substantially the same as their predecessors in the pre-1984 statute. There appears to be no dispute that DOT has lawfully promulgated the following rules in order to facilitate its administration of Chapter 479, Florida Statutes, as amended 1984: Rule 14-10.004(2)(d)--The application shall be notarized and shall contain . . . The sign's distance from the right of way, the nearest permitted sign on the same side of the highway, and the nearest intersection on the same side of the highway. [Emphasis supplied.] Rule 14-10.004(6)--Permits shall be renewed in accordance with Section 479.07(5). [Emphasis supplied.] Rule 14-10.004(9)--A sign granted a permit shall be erected and thereafter maintained in accordance with Section 479.07, F.S. and this Rule Chapter. [Emphasis Supplied. Rule 14-10.004(10)--The permanent metal tag issued by the Department shall be displayed and maintained in accordance with Section 479.07(5)(a) F.S. Rule 14-10.006(1)(b)(7)--The following shall apply to signs for which the initial valid permit application was submitted after July 1, 1984: Official signs, and signs exempt under Section 479.16 and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements. [Emphasis supplied.] Rule 14-10.007(1) provides in pertinent part: . . . A sign which was conforming on June 30, 1984, but which does not comply with the size, spacing, and height requirements of Section 479.07(9) F.S. shall not be considered a nonconforming sign. [Emphasis supplied.] Rule 14-10.007(2)(e) provides in pertinent part: (2) The following shall apply to nonconforming signs: (e) A sign face which remains void of advertising matter for 12 months or longer shall be deemed an abandoned or discontinued sign and shall lose its nonconforming status. [Emphasis supplied.] None of these duly promulgated rules has been challenged in this proceeding.
