The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 17th day of December, 1997.
The Issue Whether respondent's initial proposal to deny petitioner's application for a permit to construct an outdoor advertising sign had a reasonable basis in law and fact at the time it occurred or was otherwise substantially justified; or, if not, whether special circumstances would make an award of costs and fees unjust?
Findings Of Fact In the fall of 1988, petitioner proposed to erect a sign facing east, within 15 feet of an existing outdoor advertising sign, on the north side of State Road 200, approximately .6 miles west of the intersection of State Road 200 and I-75. He planned to place a single face at such an angle to the existing, single-faced sign that a V configuration would result. Another outdoor advertising company held a permit for the existing sign, which faced west. It stood on property belonging to a land owner who did not own the property to the east on which Ray proposed to raise its sign. On November 10, 1988, the Department of Transportation issued a notice of intent to deny petitioner's application for a permit to construct the outdoor advertising sign. Petitioner reasonably incurred attorneys' fees of $787.50 and costs of $28.00 before Department of Transportation decided, well after the evidentiary hearing held April 5, 1989, to issue the permit, after all. As far as the record reveals, the Department has faced only one other situation in which an applicant for a permit to construct a sign, within 15 feet of an existing sign, proposed to build on property not owned by the land owner who had leased to the company which had built the existing sign, viz., Ad-Con Outdoor Advertising v. Department of Transportation, No. 89- 0087T. In that case, too, the Department issued a permit for the second sign. In an internal memorandum dated February 17, 1989, respondent's Rivers Buford wrote Dallas Gray, while the Ad-Con application was pending, the following: Inasmuch as the proposed sign would be within fifteen feet of another sign it would, by virtue of the provisions of Rule Chapter 14-10.1006(1)(b)3, be considered a part of a V-type sign and thus its two faces would be exempt from the minimum spacing requirements of Section 479.07, F.S. Respondent's Exhibit No. 2. The memorandum antedated the final hearing in Case No. 88-6107 by more than six weeks. Presumably, the intended rule reference was to Rule 14-10.006(1)(b)3., Florida Administrative Code. At the hearing in the present case, the Department of Transportation produced two witnesses to explain why the Department initially turned down petitioner's application. In their view, the Department of Transportation should never have granted petitioner's application, in order to protect rights vested in the other company, particularly a purported, preemptive right the other company had, by virtue of the location of its existing sign, to build another sign where Ray proposed to build, even though the other company did not own and had not leased the site Ray applied to build on. They asserted not only that the Department was substantially justified in turning down petitioner's application when it was originally considered, but also that any other similar application should be turned down. In their opinion, the Department erred in issuing permits in both cases in which the question has arisen. They attributed the eventual issuance of permits to petitioner and in the Ad-Con case to misinformed and misguided departmental employees. As authority for this view, Mr. Kissinger, respondent's Motorist Information Services Coordinator, cited Sections 479.07(9)(a) and 479.01(14), Florida Statutes (1989) and Rule 14-10.006(b)(2) and (3), Florida Administrative Code.
Findings Of Fact The Respondent, Atlantic Outdoor Advertising, Inc., has erected a sign adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida. Atlantic Boulevard is a federal-aid primary highway, while Southside Boulevard is not. The place where the Respondent erected the subject sign is within 660 feet from Atlantic Boulevard, and this sign is visible from the main-traveled way of Atlantic Boulevard. The subject sign is approximately 300 feet from another sign, owned by Naegele Outdoor Advertising Company, which was permitted by the Department in 1980 and 1981. The Naegele permits are still valid, and they authorize a sign within 660 feet of Atlantic Boulevard on the same side of the road as the Respondent's subject sign. When the Respondent erected its sign it had obtained a building permit from the City of Jacksonville, and it holds a lease to the site where the sign is located, but the Respondent does not have a state permit for its sign and no state sign permit has been applied for by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the outdoor advertising sign of the Respondent, Atlantic Outdoor Advertising, Inc., located adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida, be removed. THIS RECOMMENDED ORDER entered this 18th day of June, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3021T Rulings on Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Rulings on Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted, but irrelevant. Accepted, but irrelevant. Accepted, but irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Paul M. Glenn, Esquire 2900 Independent Square Jacksonville, Florida 32202 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact On January 7, 1980, Dowden Funeral Home, Respondent, obtained a building permit from Highlands County (Exhibit 4), to construct a wooden sign along U.S. 17 near Sebring, Florida; and thereafter constructed a 20-foot by 14- foot sign along U.S. 17, 0.25 mile northeast of U.S. 27. The location is just outside the city limits of Sebring, Florida, and U.S. 17 is a federal-aid primary highway. Respondent's sign is located approximately 200 feet from a Barnett Bank sign which was permitted and erected in 1977 (Exhibit 6). Respondent's witness contends that when he obtained the building permit and inquired if additional permits were needed to erect this sign, he was told no by the county building officials.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of fact entered into by the parties and the entire record compiled herein, I hereby make the following findings of fact: The two signs and four sign faces (hereinafter, the signs) which are the subject of these proceedings are owned by the Respondent and are outdoor advertising signs as defined in Chapter 479, Florida Statutes. One sign is located on U.S. 1, 1.35 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2294T and 86- 2295T) and the other sign is located on U.S. 1, 1.25 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2296T and 86-2297T) The Respondent purchased the signs from the Daley Outdoor Advertising Company in 1984. The signs are adjacent to and visible from U.S. 1 in Monroe County. U.S. 1 or State Road 5, is a federal-aid primary highway. U.S. 1 was open for public use at the time the notices of violation were placed on the signs. All of the signs are located within 660 feet of the nearest edge of the right-of-way of U.S. 1, State Road 5. The area in which the signs are located is zoned "GU". Mr. William Kenney is employed as the outdoor advertising administrator for the Department of Transportation, District VI. On May 29, 1986, Mr. Kenney inspected the signs and noticed that neither of the signs had a state outdoor advertising permit tag attached. At that time, Kenney placed a notice of violation on each sign face. After placing the notice of violation stickers on the signs, Kenney examined the Department of Transportation's office records pertaining to outdoor advertising signs and found no evidence of permit tags having ever been issued for the signs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued declaring that the signs involved in these cases are illegal and must be immediately removed. DONE AND ORDERED this 14th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Charles C. Papy, III, Esquire 201 Alhambra Circle Coral Gables, Florida 33134 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property. Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained. A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar. Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site. Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing. By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property. By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department. The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County. The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective. There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising. The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site. The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied. DONE and ORDERED this 28th day of December, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of December, 1984. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Findings Of Fact Petitioner owns the sign located on the west side of and adjacent to U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for a permit to maintain a sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied. DONE and ENTERED this 5th day of June, 1991, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate. The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence. The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate. COPIES FURNISHED: William K. Jennings 119 E. Park Avenue Tallahassee, Florida 32301 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
Findings Of Fact In 1976 an outdoor advertising company named Outdoor Media applied to the Department to have permits issued for a sign that had been built in 1971 on the north side of I-4, 1.42 miles west of U.S. 17/92/441 (Orange Blossom Trail) inside the city limits of Orlando. Permit numbers 2259-12 and 2260-12 were issued by the Department to Outdoor Media for the west face and the east face of this sign. In 1978 the Respondent, Peterson Outdoor Advertising, Inc., purchased this sign from Outdoor Media. A request for replacement tags was made and granted, and tag number 2259-12 was replaced by 7553-12, and tag number 2260-12 was replaced by 7554- In April of 1984 the Respondent again requested replacement tags, and tag number 7553-12 was replaced by AM 267-12, and tag number AM 7554-12 was replaced by AM 268-12. Sometime after April, 1984, this sign was removed, and the Respondent erected a new sign, a monopole, at a location on the north side of I-4, 1.5 miles west of U.S. 17/92/441 (Orange Blossom Trail). This is approximately 200 feet west of the place where the old sign had been located. The Respondent affixed tag numbers AM 267-12 and AM 268- 12 to the new monopole structure, but these tags were not issued for this sign. They had been issued for the old sign which was removed. The city limits of Orlando are such that the location of the new monopole is outside the city; while the location where the old sign had been was inside the city limits. The county allows a taller sign than may be built inside the City of Orlando, and the Respondent wanted to enhance the visibility of its sign by raising its height. The Respondent obtained a variance from Orange County to extend the height of the monopole sign to a total of 65 feet. The monopole sign at 1.5 miles west of U.S. 17/92/441 percents adjacent to the ramp leading onto I-4 and is less than 1,000 feet from the nearest permitted sign. The distance between these signs is 898 feet as measured by the Department's inspector using a measuring wheel. The Department's inspector has more than 11 years of experience. He has measured signs, sites and locations over 1,000 times. He is familiar with the state and federal requirements for calculating point to point measurements between signs, and he followed them in making the measurements in this case. The Department's inspector measured the distance between the Respondent's new monopole and the nearest permitted sign three times with the same result. Be ran the measuring wheel along the right-of-way of I-4 at right angles to the two signs. Five of the Respondent's witnesses also measured the distance between these signs with results ranging from 955 feet to 1,016 feet. However, none of these witnesses had any experience in making measurements between signs pursuant to state and federal requirements, and some of these distances were obtained by measuring along the ramp instead of along the side of the highway. Thus, the testimony of the Department's inspector is found to be the credible evidence supporting the finding that the two subject signs are 898 feet apart. The Department's evidence relative to when the new monopole was erected is vague and imprecise, and thus not of sufficient quality to support a finding of fact on this issue. The Respondent presented evidence to show that the monopole was erected in April of 1984, and it contends that it applied for the county variance in preparation for relocation and reconstruction of this sign. However, the Respondent's evidence that the monopole was erected in April of 1984 is self-serving, and not corroborated. Even the variance notice indicates that it was applied for on October 4, 1984. Thus there is likewise insufficient credible evidence to support the Respondent's contention relative to when this sign was actually constructed. Nevertheless, the Respondent erected its new monopole structure at the point on the north side of I-4, 1.5 miles west of U.S. 17/92/441, without having first obtained a state sign permit for this location. The Respondent's manager and its president both admit that tags numbered AM 267-12 and AM 268-12 were issued for the sign at 1.42 miles west of U.S. 17/92/441. Peterson Outdoor Advertising is a licensed outdoor advertising company. The firm's manager has been in the business for 27 years. The company president has been engaged in the business of outdoor advertising for more than 25 years, and he claims to have a familiarity with the law. From these facts, and from all inferences that can be drawn therefrom, there is not sufficient evidence to support a finding that this experienced outdoor advertising company was misled into moving its sign 200 feet westward without a permit by the Department's approval of its request for replacement tags for the old sign structure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent's sign on the north side of I-4, 1.5 miles west of U.S. 17/92/441, in Orange County, Florida, be removed. And it is RECOMMENDED that permits numbered AM 267-12 and AM 268-12 be REVOKED. THIS RECOMMENDED ORDER entered this 26th day of February, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. APPENDIX Petitioner's Proposed Finding of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Replacement tags are not outdoor advertising sign permits. Rejected as not supported by competent substantial evidence, or irrelevant. Last sentence is accepted. Rejected as irrelevant. Lost tag application is not an application for outdoor advertising sign permit. Accepted. Rejected as not supported by competent substantial intent. Rejected as irrelevant, except for raising the height of the sign to 65 feet which is accepted. Rejected as irrelevant or not supported by competent substantial evidence, except for the granting of a variance and the building permit which are accepted. Rejected, as not supported by competent substantial evidence. Rejected, as not supported by competent substantial evidence. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32801-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
Findings Of Fact On May 18, 1979, and May 25, 1979, Henderson Signs filed applications for seven permits to erect seven outdoor advertising sign structures in Washington County, Florida, adjacent to Interstate 10 in the proximity of State Road 77. These applications were field approved by the Department's outdoor advertising inspector and by his supervisor on or about May 30, 1979. Thereafter, on or about June 6, 1979, the Department issued permit numbers 11176-10, 11170-10, 11172-10, 11174-10, 11175-10, 11178-10 and 11179-10 to Henderson Signs. These permits authorized the erection of the signs in the vicinity of the I-10 and S.R. 77 interchange in Washington County, which are the subject of this proceeding. Subsequent to the issuance of theme permits, Henderson Signs erected the signs at the permitted locations. Thereafter, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in these signs and in the permits which authorized them to be erected. Prior to this transfer, the Respondent's representatives inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. Two of the Respondent's representatives testified that they received assurance from the outdoor Advertising Administrator in the Chipley district office that these permits were legal permits. This testimony, however, is self-serving and uncorroborated, and thus is not of sufficient quality to support a finding of fact. The subject permits had been issued by the Department because its district personnel believed that the proposed locations were in areas which had been zoned by the proper authorities of Washington County as commercial. Each of the permit applications submitted by Henderson Signs asserted that the site applied for was in a commercial or industrial zoned area. However, these assertions by Henderson Signs on its permit applications were false. There is not currently nor has there ever been any zoning in effect in Washington County on land located along I-10. The Department's district personnel in Chipley were thus misled by the assertions made by Henderson Signs on its applications. Although zoning ordinances are a matter of public record, and the Department's district personnel might have more thoroughly checked to ascertain if the subject sites were zoned as indicated on the applications, so also did the Respondent's representatives have this opportunity to ascertain the true zoning situation for the sites where they proposed to buy signs. The Respondent is an outdoor advertising company which has been in the business of outdoor advertising since at least 1976. It was aware that signs along an interstate highway must be located in either a zoned or an unzoned commercial or industrial area. Its normal procedure is to check with the county relative to zoning. Nevertheless, the Respondent did not verify the zoning status of any of the subject sites before consummating the purchase of these signs from Henderson Signs. The subject signs are located in a rural setting, and there is no commercial activity located in the area. Prior to October, 1984, these sites were inspected by the Department's Right-of-Way Administrator. As a result of this inspection, notices of violation were sent to the Respondent advising it that proceedings were being initiated to revoke the subject permits because the locations were not in a zoned or unzoned commercial or industrial area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that signs bearing permit numbers 11176-10, 11170-10, 11172-10, 1174-10, 11175-10, 11178-10, and 11179-10, held by the Respondent, Tri-State Systems, Inc., authorizing signs in proximity to the I-10 and SR-77 interchange in Washington County, Florida, be revoked, and the subject signs be removed. THIS RECOMMENDED ORDER entered this 1st day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire O. Box 2151 Orlando, Florida 32802-2151 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
