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DEPARTMENT OF TRANSPORTATION vs NATIONAL ADVERTISING COMPANY, 99-003345 (1999)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Aug. 06, 1999 Number: 99-003345 Latest Update: Oct. 10, 2000

The Issue With respect to DOAH Case No. 99-3345T, whether the Respondent must remove the double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, for the reasons set forth in the Notice of Violation - Illegally Erected Sign, dated March 31, 1999. With respect to DOAH Case No. 99-3346T, whether the Respondent's permits for a double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, and bearing permit numbers AZ346-35 and AZ347-35, should be revoked for the reasons set forth in the Notice of Violation - Maintenance of Nonconforming Signs dated March 31, 1999.

Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999). National Advertising 2/ is the owner of a double- faced outdoor advertising sign located in Palm Beach County, Florida. The sign is located on the west side of Interstate 95, 1.25 miles south of North Lake Boulevard. At the time the structure was erected, the sign faces were visible to both southbound and northbound traffic of Interstate 95. At the times material to this proceeding, the sign at issue was a non- conforming sign. At the times material to this proceeding, the sign structure consisted of seven wooden poles placed in the ground and secured by concrete. Two metal heads, the sign faces themselves, were attached to the poles, one facing north and one facing south. The structure also included a metal catwalk providing access to the sign faces, as well as miscellaneous trim and equipment. At some time prior to the incidents giving rise to these proceedings, a sound wall was erected by the Department along Interstate 95, which blocked visibility of the National Advertising sign face by northbound traffic. In March 1999, National Advertising determined that the existing wooden poles supporting the sign heads were deteriorating and needed to be replaced. In addition, National Advertising decided to raise the height-above-ground-level ("HAGL") of the sign to maintain the same visibility of the sign face by the northbound traffic as that which existed before the sound wall was erected. Consequently, National Advertising contracted with a company to relocate the poles and transfer the existing sign faces and attached equipment to the new poles. Holes were dug approximately five feet from the original wooden poles, and new wooden poles were set in these holes. A crane lifted the sign faces and the attached trim and equipment and supported them while the old wooden poles were cut down slightly above ground level. The crane then moved the sign faces and the attached trim and equipment to the new poles, and the assemblage was bolted to the new wooden poles. The original wooden poles supporting the sign heads were approximately 12-to-13 inches in diameter, and the HAGL of the original sign faces was approximately 24 feet. The new wooden poles were approximately 20-to-22 inches in diameter, and the HAGL of the sign faces was raised to approximately 50 feet. The structure of the sign was not altered, and the materials used in the sign faces were not altered. The poles supporting the sign faces can be changed as part of the routine maintenance of an outdoor advertising sign, as long as the new posts are of the same material and configuration; the replacement of deteriorating poles is standard industry practice and is required to maintain the safety of the sign. The sign must, however, stay in the same relative location on the ground as the old sign. It is standard industry practice to place new supporting poles a few feet away from the exact location of the old supporting poles in order to provide a firm foundation for the new poles. The Department uses the term "remove" in its notices of violation as a "general term" meaning "[t]o move [a sign] away from the site, to move it any distance away from where it was installed previously." 3/ Nonetheless, the charges in the Notices of Violation issued in these cases were based on the Department's mistaken conclusion that National Advertising "cut down the entire sign, discarded it and built an entire new sign in its place." 4/ The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the permitted outdoor advertising sign was removed from its original location and re-erected. Because it has not established with the requisite degree of certainty that the sign was re-erected, the Department cannot sustain its charge that the outdoor advertising sign at issue herein was erected without a permit.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the Notice of Violation - Illegally Erected Sign in DOAH Case No. 99-3345T and dismissing the Notice of Violation - Maintenance of Nonconforming Signs in DOAH Case No. 99-3346T. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 18th day of September, 2000.

Florida Laws (9) 120.569120.57479.01479.02479.07479.105479.107479.16479.24 Florida Administrative Code (1) 14-10.007
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ALLAN J. STOWELL vs DEPARTMENT OF TRANSPORTATION, 97-001417 (1997)
Division of Administrative Hearings, Florida Filed:Clearwater, Florida Mar. 19, 1997 Number: 97-001417 Latest Update: May 08, 1998

The Issue The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.

Findings Of Fact The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads: The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981. The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue. On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996. On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996. By letter dated August 30, 1994, the City advised Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996. As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995. Stipulation of Fact #2 reads: State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19. The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding. Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60). On May 22, 1974, State Road 60 was designated a Federal- Aid Primary. On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban. Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981. On or about October 1, 1981, Allan J. Stowell was issued state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality. State Road 60 became a part of the national highway system on November 25, 1995. Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state. Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor. Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business. Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating he was delinquent in certain costs and fees for the permits. When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current. The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable. When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981. After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994. After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions. After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997. Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government will issue a permit upon approval of the application by the Department. Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form. On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the property on which it is located in his application. One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years. Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997. The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign. Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute. When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.” There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application. The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve. Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner permits for the maintenance of the signs in issue, and denying compensation for their removal. DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998. COPIES FURNISHED: Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450

Florida Laws (4) 120.57479.07479.15479.16
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DEPARTMENT OF TRANSPORTATION vs. C. A. MILLER AUTO TRUCK SERVICE, 76-000422 (1976)
Division of Administrative Hearings, Florida Number: 76-000422 Latest Update: Feb. 11, 1977

The Issue Whether the Respondent is in violation of Section 479.07, Section 479.11(5) and Section 479.11(1), Florida Statutes, which statutes provide that permits must be obtained from the Florida Department of Transportation before an outdoor advertising sign is erected and which prohibits the erection of an outdoor advertising sign within 660 feet within the nearest edge of the right of way of all portions of the interstate system or the federal primary aid system and which is placed on the inside of a curve or in any manner that may prevent persons using the highway from obtaining an unobstructive view of approaching vehicles.

Findings Of Fact Subject sign was erected without a permit in 1973 and was nailed to a tree. The sign is located in a zoned residential area approximately ten feet from the nearest edge of the right of way of a federal aid primary highway, State Road 61.

Recommendation Remove subject sign and remove any re-erection of subject sign. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 C. A. Miller Auto Truck Service 806 Westway Road Tallahassee, Florida

Florida Laws (3) 479.02479.07479.11
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DEPARTMENT OF TRANSPORTATION vs. ANASTASIA ADVERTISING ART, INC., 75-001365 (1975)
Division of Administrative Hearings, Florida Number: 75-001365 Latest Update: Feb. 11, 1977

Findings Of Fact 1. Jack L. Foster, an advertising sign inspector for the Department of Transportation, testified that he had inspected a sign 5.50 miles south of Borden on 95 and facing I-95 in Duval County Florida, which sign bore advertising copy advertising the city of St. Augustine which can be read from I- Foster checked with the chamber of commerce of St. Augustine and determined it had leased the sign from Anastasia Advertising Art, Inc. Foster also checked the zoning maps of Duval county at City Hall in Jacksonville, Florida, and learned that the sign was placed in an area zoned "open agricultural". Foster testified that his inspection of the aforestated revealed no permit was attached, and that it was located 25 feet from the right of way line. Foster stated that because of his duties he would have been aware of any application pending for a permit for said sign, and there had been no application filed. On cross examination, Foster stated that he had first observed the sign in 1972, at which time a tag was not required. No other witnesses testified and no other evidence was presented controverting Foster's testimony. The Hearing Officer having not received any further argument from the parties, and having considered the foregoing facts, finds that said sign being 25 feet from the right of way of I-95 violated Subsection 479.11(2), F.S., which states that no outdoor advertising sign shall be constructed, used or maintained: (2) Beyond 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary systems outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system, unless it is of a class or type permitted in subsection 479.111(1) or subsections 479.16(1) or (3)." The Hearing Officer further finds that the failure to affix a permit to said sign violates Subsection 479.07(1), Florida Statutes, and further that the Hearing Officer finds that the Department of Transportation has complied with Section 479.08, Florida Statutes.

Recommendation The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends to the Agency Head that action be taken to have the subject sign removed with ten (10) days of his Final Order. DONE and ORDERED this 30th day of March, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Florida Laws (6) 120.57479.07479.08479.11479.111479.16
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BILL SALTER OUTDOOR ADVERTISING, INC. vs DEPARTMENT OF TRANSPORTATION, 97-004403 (1997)
Division of Administrative Hearings, Florida Filed:Pensacola, Florida Sep. 17, 1997 Number: 97-004403 Latest Update: Mar. 06, 1998

The Issue Whether Petitioner's application for two state sign permits to place a two-sided outdoor advertising sign on the east side of State Road 291 in Escambia County, Florida should be approved.

Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bill Salter Advertising, Inc., is an outdoor sign company located in Milton, Florida. Respondent, Department of Transportation (DOT), is the state agency charged with the responsibility of regulating outdoor advertising signs. On May 16, 1997, Petitioner filed an application with DOT seeking two permits to place a two-sided outdoor advertising sign on the east side of State Road 291, 0.3 miles south of State Road 290 in the unincorporated portion of Escambia County, Florida. The proposed location is less than 500 feet north of Interstate 10, a federal interstate roadway with a restricted interchange. On May 30, 1997, DOT issued its Notice of Denied Application in which it denied the application on the ground the proposed sign site was within 500 feet of a restricted interchange or intersection at grade and thus violated an agency rule. The receipt of this notice prompted Petitioner to initiate this proceeding. The proposed sign will be located on the property of a Chevron gasoline station, which is located on the eastern side of State Road 291. Although the sign will be located on State Road 291, and it is intended to be visible to persons using that roadway, its message is also visible to persons using Interstate 10. Rule 14-10.006(1)(b)5., Florida Administrative Code, prohibits outdoor advertising signs which are located within the restricted area of an interstate ramp in the unincorporated area of a county. A restricted area is defined as being within 500 feet of an interchange. In this case, the proposed sign location is only 320 feet from the on and off ramp for Interstate 10 within the unincorporated area of Escambia County. Therefore, the proposed location lies within a restricted area and is prohibited by the rule. To be permittable, Petitioner would have to move its proposed sign location several hundred feet to the east or west. At hearing, Petitioner contended that two other signs have been erected nearby on State Road 291 and have not been cited by DOT as being in violation of the rule. For the sake of fairness, it contends that its application should be approved. The first sign is an on-premise sign for Chuck E Cheese's located on property owned by the University Mall. On-premise signs, however, are regulated by the county and not the state, and therefore DOT has no jurisdiction over the sign. The second sign, one advertising Montana Bar-B-Que and Seafood Buffet, cannot violate the interstate ramp rule because it is located on the west side of the roadway; the entrance and exit ramps for the Interstate 10 interchange are all located on the east side of the roadway. Petitioner also contended that its message is intended to be seen by persons using State Road 291, and not those using Interstate 10. However, DOT has consistently interpreted its rule as prohibiting all signs outside incorporated towns and cities, which are located within the restricted area of an interstate ramp, even though the sign facings are not meant to be read from the interstate. This interpretation of the rule was not shown to be clearly erroneous, and it is hereby accepted.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioner's application for two state sign permits to place a two-sided sign on the east side of State Road 291 in Escambia County, Florida. DONE AND ENTERED this 6th day of March, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this day 6th of March, 1998. COPIES FURNISHED: Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-00458 Robert Griffin Bill Salter Advertising, Inc. Post Office Box 761 Milton, Florida 32572 Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450

Florida Laws (3) 120.569479.01479.07
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FIRST COAST ADVERTISING, INC. vs DEPARTMENT OF TRANSPORTATION, 91-005221 (1991)
Division of Administrative Hearings, Florida Filed:Deland, Florida Aug. 20, 1991 Number: 91-005221 Latest Update: May 15, 1992

Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Department of Transportation (DOT), is the state agency charged with the responsibility of administering and enforcing the Federal Highway Beautification Act, as amended, which pertains to lighting, design and spacing of signs on the interstate, federal and primary highway systems. Respondent, First Coast Outdoor Advertising, Inc. (First Coast), is an outdoor advertising firm located in St. Augustine Beach, Florida, and is the owner of a sign erected on State Road A1A in Flagler County, Florida. Respondent, Motel Delores, is a motel located at 5992 Oceanside Boulevard (State Road A1A) in Flagler County and has a sign erected near its place of business. Both signs are located on the same side of the highway and are subject to DOT's regulatory jurisdiction. The underpinnings of this controversy began in 1966 when Motel Delores decided it would erect a sign with a message reading "Delores Motel & Restaurant". The actual location of the sign is 385 feet south of the intersection of Malacompra Road and State Road A1A, or 10.2 miles north of the intersection of State Roads 100 and A1A, in Flagler County, Florida. At that time, the property on which the sign was erected was owned by Malcolm Johnson. According to Jerrald D. Schatz, who is one of the motel owners, Motel Delores was given permission by Johnson for the sign to be erected on Johnson's property. In 1970, ITT Development Corporation (ITT) purchased Johnson's land. There is no indication in the record that ITT initially lodged any objections to Motel Delores continuing to have its sign located on ITT's property. The date on which DOT began regulating outdoor advertising signs is not of record. However, Motel Delores first learned of the need to obtain a sign permit in early 1977 when a DOT representative advised it that a permit was necessary. Accordingly, respondent made application with DOT for a permit on March 9, 1977, and was issued tag number 5697-02 on March 16, 1977. Thereafter, the tagged sign remained at the same location until March 1990. In 1984, ITT and DOT became embroiled in a civil action over ownership of land on and near State Road A1A where the two signs are now located. In 1986, the lawsuit was settled when DOT and ITT agreed to exchange land in the immediate area. As a result of that settlement, the land on which Motel Delores' sign was located was deeded from ITT to DOT and now constitutes right- of-way on State Road A1A. Without DOT's written permission, the placement of a sign on state right-of-way is prohibited. In March 1990, Motel Delores' sign and tag were stolen by unknown individuals. Within a few days, Schatz began erecting a new sign a few feet closer to A1A. By chance, a DOT sign inspector, William Terry, happened to be traveling on A1A and observed the new sign. After a preliminary investigation was conducted, including contact by DOT with ITT, Terry concluded that the sign was within fifteen feet of DOT right-of-way on a federal primary highway and the sign owner did not have ITT's written permission to have the sign at that location. The inspector was unaware of the fact that DOT and ITT had exchanged land some four years earlier and was under the impression that the land on which the sign was located belonged to ITT. Accordingly, on March 29, 1990, Terry posted a cease work order on the sign and recommended that a notice of violation be issued. The recommendation was accepted by the district administrator of outdoor advertising and a notice to show cause was issued on April 6, 1990. On April 23, 1990, Schatz filed a request for hearing with the DOT district office. In late February 1990 First Coast began erecting an outdoor advertising sign approximately 523 feet north of where the Motel Delores sign was located. In conjunction with this activity, on March 14, 1990, First Coast filed an application with DOT for a sign permit. However, A1A is designated as a part of the federal-aid primary highway system and state law prohibits two permitted signs from being located within 1,000 feet of one another on such a road. Because the DOT "inventory book" for permitted signs carried the tag number for the sign owned by Motel Delores, which was 523 feet south of First Coast's sign, the application was returned to First Coast on March 21, 1990, with a notation by the district administrator that it was "Dis-Approved" (sic). A short time later, Terry posted a cease work order on First Coast's uncompleted sign, and a notice to show cause was issued on April 6, 1990, on the ground the sign did not meet spacing requirements. However, because at that time Motel Delores' sign was on DOT right-of-way without DOT's permission, there was no lawful, permitted sign on the same side of the road within 1,000 feet of First Coast's sign and thus the notice was improvidently issued. Indeed, a DOT representative acknowledged at hearing that Motel Delores' sign was "illegal" at the time the notice to show cause was issued against First Coast. In view of this, First Coast's application for a sign permit should have been approved. On April 19, 1990, First Coast requested a hearing to contest DOT's preliminary decision. Among other things, First Coast contended that the Motel Delores sign was illegally erected and thus its sign met all spacing requirements. For reasons not of record, DOT did not forward this and Motel Delores' first request for hearing to the Division of Administrative Hearings until more than a year later. During this period of time, both respondents completed construction of their new signs and have continued to use them pending the outcome of these proceedings. Even so, DOT agreed at hearing that respondents should not be charged with violating the cease work orders posted on the two signs. On October 17, 1991, DOT advised Schatz by letter that it was "rescinding all violations issued under the (April 6, 1990) notice" because the notice had incorrectly identified the location of the sign as 385 feet north of Malacompra Road when in fact the actual location was 385 feet south of Malacompra Road. Schatz's happiness was short-lived, however, because DOT then issued another notice to show cause on November 1, 1991, alleging that the sign did not have a valid permit tag and was located on DOT's right-of-way. Motel Delores thereafter requested a hearing on November 8, 1991. On November 20, 1991, Motel Delores filed with DOT an outdoor advertising permit affidavit form in which it represented that its sign tag had been stolen and a replacement tag was necessary. The request was approved by DOT on January 14, 1992, and replacement tag number BF 209-25 was issued. On February 1, 1992, or less than a week prior to final hearing, DOT and Motel Delores executed a five year lease agreement whereby DOT agreed that the motel could keep its sign on DOT's property for $200 per year. According to Schatz, he had requested such a lease from DOT in late 1990 and it took more than a year for DOT to formalize the agreement.

Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the notices to show cause issued against respondents on April 6, 1990, and November 1, 1991, be dismissed with prejudice. It is further recommended that a sign permit be issued to First Coast Outdoor Advertising, Inc. for its sign erected on State Road A1A in Flagler County. DONE and ORDERED this 30 day of March, 1992, at Tallahassee, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 30 day of March, 1992. Vernon L. Whittier, Jr., Esquire 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Gerald S. Livingston, Esquire Suite 1150 200 East Robinson Street Orlando, FL 32801 Jerrald D. Schatz 5992 North Oceanside Boulevard Hammock, FL 32137-2601 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, Agency Clerk 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458

Florida Laws (1) 120.57
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BAYSHORE INN vs DEPARTMENT OF TRANSPORTATION, 97-001988 (1997)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Apr. 29, 1997 Number: 97-001988 Latest Update: Sep. 03, 1997

The Issue The issue is whether Petitioner’s motel is entitled to designation on a logo sign located at an exit on Interstate 75.

Findings Of Fact Petitioner owns and operates a motel known as the Bayshore Inn on U.S. Route 41 in Palmetto, Florida. The Bayshore Inn is not located at an intersection of I-75. From the nearest intersection on I-75, a motorist driving to the Bayshore Inn would travel 3.4 miles west on U.S. Route 301 and 1.7 miles north on U.S. Route 41. The Bayshore Inn is not visible from the intersection of I-75 and U.S. Route 301. Petitioner has not yet sought from Respondent a variance from the legal requirements for participating in the logo sign program.

Recommendation It is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request to participate in the Interstate logo sign program, without prejudice to his right to request a variance. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of September, 1997. COPIES FURNISHED: Joan King Rodger B. King Bayshore Inn 3512 U.S. 41 North Palmetto, Florida 34221 Andrea V. Nelson Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Attention: Diedre Grubbs Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458

Florida Laws (4) 120.542120.57479.261497.261
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PETERSON OUTDOOR ADVERTISING CORPORATION vs. DEPARTMENT OF TRANSPORTATION, 78-000643 (1978)
Division of Administrative Hearings, Florida Number: 78-000643 Latest Update: Feb. 21, 1979

The Issue Whether the sign of Petitioner should be removed for violation of Section 479.11(7) and Rule 14-10.07(2)(e), maintaining a sign in an unsafe, insecure or unsightly condition and without face or topic for over twelve months.

Findings Of Fact A notice of violation and notice to show cause alleging violation of the statutes and rules under Chapter 479, Outdoor Advertising, was sent to Petitioner February 16, 1978, citing a structure located .24 miles east of State Road 44 w/s on Interstate 4 with "blank" copy. Petitioner requested an administrative hearing. There was no dispute as to the location of the subject sign or that subject sign had carried no copy for a period of time beginning before October, 1975 and continuing until sometime immediately prior to March 13, 1978, at which time the sign structure was cleaned and an outdoor advertising copy placed thereon. The sign structure carries permit tag number 4836-10, 1974. The proper fee has been paid to keep the tag current. Petitioner contends: that the statute, Section 479.11 (7), is unconstitutional because it is vague; that Rule 14-10.07(2)(e), is a "prospective rule"; and, that Petitioner's sign is not in violation of the rule inasmuch as the effective date of the rule was December 10, 1977, that the sign currently is in violation of no law. Respondent contends: That the sign has stood along the side of the highway in a rusted and unsightly condition, without copy for a period in excess of three years and that the rule is applicable; that the Petitioner's sign has lost its "grandfather status", which allows a sign that does not conform to current laws to stand until compensation for such sign has been paid to the owner.

Recommendation Dismiss the complaint against the Petitioner. DONE AND ENTERED this 21st day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gerald S. Livingston, Esquire 217 North Eola Drive Post Office Box 2151 Orlando, Florida 32802 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Florida Laws (1) 479.11
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MALIBU LODGING INVESTMENTS, LLC vs DEPARTMENT OF TRANSPORTATION, 09-001524 (2009)
Division of Administrative Hearings, Florida Filed:Miami, Florida Mar. 20, 2009 Number: 09-001524 Latest Update: Aug. 18, 2010

The Issue Whether the mural on the east exterior wall of the City Inn Hotel is an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes.

Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' factual stipulations, the following findings of fact are made: Pursuant to federal law (specifically, 23 U.S.C. § 131(b) of the Highway Beautification Act of 1965), a state's share of federal-aid highway funds may be reduced by ten percent if the state has failed to maintain "effective control" of outdoor advertising "along the Interstate System and the primary system." What constitutes "effective control," as that term is used in 23 U.S.C. § 131(b), is explained as follows in 23 U.S.C. § 131(c): Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, signs, displays, and devices including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required. An exception to the restrictions imposed on outdoor advertising by 23 U.S.C. § 131(c) is found in 23 U.S.C. § 131(d), which allows the placement of signs in commercial and industrial areas "consistent with customary use," as "determined by agreement between the several States and the Secretary [of the federal Department of Transportation]." Florida is a signatory to such an agreement. The agreement was entered into on January 27, 1972, by the Administrator of the Federal Highway Administration, acting on behalf of the federal Department of Transportation, and the Governor of the State of Florida, acting on behalf of the State (1972 Agreement). Section II. of the 1972 Agreement is entitled, "Scope of Agreement," and it reads as follows: This agreement shall apply to the following areas: All zoned and unzoned commercial and industrial areas within six hundred sixty (660) feet of the nearest edge of the right- of-way of all portions of the Interstate and Federal-aid Primary Systems within the State of Florida in which outdoor advertising signs may be visible from the main-traveled way of either or both of said systems. Section III. of the 1972 Agreement is entitled, "State Control," and it reads, in pertinent part, as follows: The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria: In zoned commercial and industrial areas, the State may notify the Administrator that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply. In all other zoned and unzoned commercial and industrial areas, the criteria set forth below shall apply: SIZE OF SIGNS The maximum area for any one sign shall be twelve hundred (1,200) square feet with a maximum height of thirty (30) feet and maximum length of sixty (60) feet, inclusive of any border and trim but excluding the base or apron, supports, and other structural members. The area shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof which will encompass the entire sign. The maximum size limitations shall apply to each side of a sign structure; and signs may be placed back-to-back, side-by-side, or in V-type construction with not more than two displays to each facing, and such sign structure shall be considered as one sign. SPACING OF SIGNS Interstate and Federal-aid Primary Highways. Signs may not be located in such a manner as to obscure, or otherwise physically interfere with the effectiveness of an official traffic sign, signal, or device, obstruct or physically interfere with the deriver's view of approaching, merging, or intersecting traffic. Interstate Highway. a. No two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction. * * * Federal-aid Primary Highways. No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction. Explanatory Notes. Official and "on premise" signs, as defined in Section 131(c) of Title 23, United States Code, 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. The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway and shall apply only to structures located on the same side of the highway. LIGHTING Signs may be illuminated subject to the following restrictions: Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information. Signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of the Interstate or Federal- aid Primary Highway and which are of such intensity or brilliance as to cause glare or to imp[air] the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited. No sign shall be so illuminated that it interferes with the effectiveness of, or obscures an official traffic sign, device, or signal. All such lighting shall be subject to any other provisions relating to lighting of signs presently applicable to all highways under the jurisdiction of the State. At any time that a bona fide county or local zoning authority adopts regulations which include the size, lighting, and spacing of outdoor adverting, the State may so certify to the Administrator and control of outdoor advertising in the commercial or industrial zones within the geographical jurisdiction of said authority will transfer to subsection A of this section. * * * Section IV. of the 1972 Agreement is entitled, "Interpretations," and it reads as follows: The provisions contained herein shall constitute the standards for effective control of signs, displays, and devices within the scope of this agreement. In the event the provisions of the Highway Beautification Act of 1965 are amended by subsequent action of Congress or the State legislation is amended, the parties reserve the right to renegotiate this agreement or to modify it to conform to any amendment. The 1972 Agreement has not been modified, pursuant to the provisions of Section IV., at any time subsequent to its execution in 1972. The Florida Legislature has delegated to the Department the responsibility of administering and enforcing the 1972 Agreement, as well as Chapter 479, Florida Statutes, which regulates "outdoor advertising." As the Department's Outdoor Advertising Administrator, Lynn Holschuh is responsible for overseeing the Department's discharge of this responsibility. She has delegated to the Regional Inspectors under her charge (including Mark Johnson, the lone Regional Inspector whose territory includes Miami-Dade County) the authority to post notices of violations on all illegal signs, without restriction. Among the provisions in Chapter 479, Florida Statutes, is Section 479.156, Florida Statutes, which was originally effective July 1, 2007, and provides that, "[n]otwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government," provided it does so within the parameters prescribed by the statute. The City of Miami has an ordinance (Miami Ordinance) permitting a limited number of wall murals in certain geographic areas of the city (wall mural districts3) that meet specified size, lighting, and spacing requirements. Among the Miami Ordinance's "Whereas" clauses is the following: WHEREAS, it is determined that the prominent display of large outdoor advertisements in the commercial and industrial Urban Core areas of Miami, as defined by Miami-Dade County, was a predominant and customary use up to and including 1972, and that permitting wall murals as designated in this ordinance is consistent with such customary use and the intent of the Highway Beautification Act of 1965. Sometime after May 1, 2009, the City of Miami sent to the Department a written request that it be "certified for local control over wall murals" pursuant to Section III. of the 1972 Agreement. The request read as follows: Request from the City of Miami to the Florida Department of Transportation to be certified for local control over wall murals pursuant to 23 U.S.C. § 131, 23 C.F.R. § 706, Federal policy, the Federal-State Agreement dated January 27, 1972, § 479.156, Florida Statutes, and Fla. [] Admin. [Code] [R.] 14-10.025.[4] The City of Miami has passed Ordinance No. 12983 creating Sections 62-601 through 62- 618 of the Code of the City of Miami, on May 10, 2008, permitting and regulating wall murals. An amendment to that ordinance was subsequently adopted, which confirms that wall murals were a customary use as of 1972 and thereafter. Copies of the ordinance and amendment are enclosed. This ordinance was adopted with the intent to permit art or graphics on buildings and existing walls in certain commercial and industrial areas "in order to aesthetically enhance otherwise blank walls and unoccupied buildings." The funds from permitting these activities is to be utilized "to ensure quality of life and prevention of visual clutter or blight." It is estimated that nearly $2 million dollars of new local revenue is being generated from the permitting process. In these difficult economic times, this revenue is even more vital and the City is appreciative of both the State of Florida's and the Federal government's mutual assistance in helping create this stimulus. The ordinance is consistent with the intent of the Highway Beautification Act, the 1972 Federal-State agreement, and with federal regulations, federal policy, as well as with § 479.156, F.S. and Fla. Admin. [Code] R. 14-10.025. The ordinance and this submission are also consistent with the amendment to § 479.156, F.S., passed on May 1, 2009 by the Legislature in HB 1021. The City of Miami's request for certification is still pending. The Department is "awaiting [supporting] documentation from the City of Miami," which it has yet to receive. When it receives such documentation, it will refer the matter "for [the Federal Highway Administration's] determination." The Department has several "open cases" (the oldest dating back to 2006) each involving one or more allegedly illegal wall murals located in a wall mural district created by the Miami Ordinance.5 The Department has decided not to refer these "open cases" to DOAH for hearing, nor to take any other action with respect to these cases (including removal of the wall murals in question), until after a determination is made by the Federal Highway Administration as to whether the Miami Ordinance "effectively controls" outdoor advertising in the wall mural districts described in the ordinance in a manner "consistent with the intent of the Highway Beautification Act of 1965 and with customary use," as required by the 1972 Agreement. The City Inn Hotel (Hotel) is located at 660 Northwest 81st Street in Miami. It is not within any of the wall mural districts created by the Miami Ordinance. There presently is no local government ordinance comparable to the Miami Ordinance permitting wall murals in the area in which the Hotel is located, although Petitioner is engaged in efforts to convince the Miami-Dade County Commission that it should pass such an ordinance. Petitioner has owned the Hotel since July 2000. The Hotel is a revenue producing property. Petitioner rents out space inside the Hotel (hotel rooms, apartments, offices, and facilities for banquets and worship services); on the roof of the Hotel (for the placement of cellular towers); and on the exterior walls of the Hotel (for the display of wall murals).6 There have been "wall murals on the [exterior of the] building since [Petitioner] bought the property." At no time has Petitioner ever requested or obtained from the Department a sign permit for any of these murals. By issuance of Amended Notice of Violation-Illegally Erected Sign Number 1005005La (Amended Notice Number 1005005La) on June 23, 2006, the Department notified Petitioner that murals on the north, south, and east exterior walls of the Hotel were "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes," and that these murals had to be "removed [by Petitioner] within thirty days" or else they would be "removed and disposed of by the Department without further notice" at Petitioner's expense. Petitioner requested an administrative hearing, and the Department forwarded the matter to DOAH for the assignment of an administrative law judge. The case was docketed as DOAH Case No. 06-3683. The final hearing in DOAH Case No. 06-3683 was held on June 5, 2007, before Administrative Law Judge Patricia M. Hart. Judge Hart issued her Recommended Order in DOAH Case No. 06-3683 on September 28, 2007. Judge Hart's Recommended Order contained the following Findings of Fact: The Department is the state agency responsible for regulating outdoor advertising and for issuing permits for signs located along interstate and federal aid primary highways pursuant to Chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10. See 479.02, Fla. Stat. Judah Burstyn is the president of Malibu Lodging LLC, which owns the City Inn Hotel, a 200-room hotel located at 660 Northwest 81st Street, Miami, Florida. Mr. Burstyn describes the business of Malibu Lodging Investments/City Inn Hotel as a mixed-used real estate project. Malibu Lodging Investments/City Inn Hotel rents hotel rooms and apartments in the City Inn Hotel property; it rents rooftop space on top of the City Inn Hotel to cellular telephone companies; it owns a used car lot located at 8028 Northwest 6th Court, Miami, Florida, adjacent to the hotel property; it rents meeting space in the hotel to a church; it rents the hotel banquet room and parking lot for special events; it rents office space and storage space in the City Inn Hotel; and it rents the use of portions of the City Inn Hotel property to tenants and the public for special events. In Plain Sight Media, a Nevada corporation, is principally engaged in the business of advertising and marketing its clients' products. In Plain Sight Media is a full-service media company that, among other things, designs, prints, installs, and removes outdoor advertising for its clients. The outdoor advertising primarily consists of images printed on large sheets of self- adhesive vinyl that are affixed to the exterior walls of buildings. In Plain Sight Media also designs and distributes promotional materials for its clients and assists its clients in direct sales of the clients' products. It does not, however, engage in actual direct sales of its clients' products. Pursuant to a lease executed March 1, 2007, by Malibu Lodging Investments/City Inn Hotel and In Plain Sight Media, In Plain Sight Media leases office and other space in the City Inn Hotel property from Malibu Lodging Investments/City Inn Hotel for rent totaling $21,750.00 per month. The lease provides that In Plain Sight Media has the right to "place advertising signage on the [City Inn Hotel] premises at [In Plain Sight Media's] discretion" and that In Plain Sight Media "shall use the Property as a media, marketing and advertising company for products having to do with Volkswagen, Vitamin Water and other clients represented by [In Plain Sight Media], whose clients['] promotional products and services are available on the [Malibu Lodging Investments/City Inn Hotel] premises." In Plain Sight Media employs an individual who is in the office located in the City Inn Hotel from time to time, on an as-needed basis. She is responsible for answering the telephone, responding to inquiries from the public about the products of In Plain Sight Media's clients, organizing special promotional events, and performing general office work. Malibu Lodging Investments/City Inn Hotel and In Plain Sight Media also executed a Lease Agreement for Wallspace at or about the end of January 2007, in which In Plain Sight Media agreed to pay Malibu Lodging Investments/City Inn Hotel the greater of $21,750.00 per month or 50 percent of In Plain Sight Media's monthly ad revenue for the right to install and maintain wall signage advertisements or displays on each of the north and south exterior walls of the City Inn Hotel property at 600 [sic] Northwest 81st Street in Miami, Florida, for a minimum total monthly rent of $43,500.00. According to the testimony of Mr. Burstyn and of Marc Caldera, President of In Plain Sight Media, the March 1, 2007, lease covering office, storage space, and the use of other space in the City Inn Hotel and the adjacent parking lot and used car lot operated to void the Lease Agreement for Wallspace. On June 23, 2006, when the Amended Notice of Violation-Illegally Erected Sign was issued, large wall murals were attached to the north, east, and south exterior walls of the City Inn Hotel property advertising Heineken beer, Krieger watches, and a "Read to Achieve" program promoted by the Miami Heat basketball team. At the time of the final hearing in this case, these wall murals had been replaced with two larger wall murals on the north and south exterior walls, each approximately 60 feet wide and 65 feet high.[7] One wall mural featured a picture of a Volkswagen automobile with the slogan, "Woe isn't you. Dare to be happy," located on the south exterior wall of the City Inn Hotel, and the other featured a picture of a bottle of Vitamin Water and Shaquille O'Neal with the slogan "diesel power it works . . . for shaq," on the north exterior wall. Both of the banners were created, installed, and maintained by In Plain Sight Media. Guests at the City Inn Hotel sometimes purchase an automobile from the used car lot located adjacent to the City Inn Hotel and owned by Malibu Lodging Investments/City Inn Hotel. Volkswagen automobiles are, from time to time, available for rent or for sale on this car lot. In Plain Sight Media sells Vitamin Water from a vending machine inside the City Inn Hotel property, and Malibu Lodging Investments/City Inn Hotel receives a percentage of the revenue from the vending machine sales. If anyone asks about Vitamin Water at the In Plain Sight Media office in the City Inn Hotel, during the time the office is staffed, information about the product and promotional material is available. The wall murals installed on the north and south exterior walls of the City Inn Hotel property have generated inquiries to In Plain Sight Media from persons interested in its advertising and/or marketing services, and Mr. Burstyn believes that the wall murals have increased foot traffic in the City Inn Hotel. Both of the wall murals installed on the exterior walls of the City Inn Hotel are visible from Interstate 95 and are located within 660 feet of the right-of-way for that federal highway. Neither In Plain Sight Media nor Malibu Lodging Investments/City Inn Hotel has applied to the Department for, or obtained, outdoor advertising permits for these wall murals. The wall murals on the exterior walls of the City Inn Hotel property are signs that advertise Volkswagen automobiles and Vitamin Water. As such, they cannot be displayed without an outdoor advertising permit. The wall murals do not advertise In Plain Sight Media or the City Inn Hotel, nor do they identify any merchandise or service offered as part of the principal business activity of either In Plain Sight Media or the City Inn Hotel. There is currently no agreement explicitly giving Malibu Lodging Investments/City Inn Hotel the right to receive rental income attributed to outdoor advertising attached to the exterior walls of the City Inn Hotel. The March 1, 2007, lease gives In Plain Sight Media the right to "place advertising signage" on the City Inn Hotel property, and it is reasonable to infer that a portion of the $21,750.00 per month rent paid to Malibu Lodging Investments/City Inn Hotel by In Plain Sight Media includes rent for the use of the exterior walls of the City Inn Hotel for advertising signage. This inference is supported by the terms of the lease executed in January 2007, which provided for In Plain Sight Media to pay Malibu Lodging Investments/City Inn Hotel a minimum of $43,500.00 in rent for nothing more than the right to affix advertising wall murals on the exterior surfaces of the north and south walls of the City Inn Hotel. Wall murals have been attached to the exterior walls of the City Inn Hotel since at least the early 1990's. Malibu Lodging Investments/City Inn Hotel elicited evidence from the Department's witnesses relating to the withdrawal of a notice of violation for an illegal, unpermitted wall mural advertising "Continuum II." The notice of violation was withdrawn by the Department because it determined that the sign advertised a project that was to be developed on the site where the wall mural was displayed. When the "Continuum II" wall mural was replaced with a wall mural advertising Fiji water, a notice of violation was issued for that unpermitted sign. In her Recommended Order, Jude Hart made the following Conclusions of Law, among others: 24. Based on the findings of fact herein, the Department has proven by a preponderance of the evidence that the wall murals attached to the north and south exterior walls of the City Inn Hotel are signs that are visible from and within 660 feet of a federal interstate highway and that the signs were erected and are maintained without a permit. * * * Based on the findings of fact herein, Malibu Lodging Investments/City Inn Hotel has failed to carry its burden of proving that the wall murals advertising Volkswagen automobiles and Vitamin Water fall within the exemption set forth in Section 479.16(1), Florida Statutes. The principal business activity of In Plain Sight Media is marketing and promotion, including the design, erection, and maintenance of wall murals, and the principal business activity of Malibu Lodging Investments/City Inn Hotel is an income-producing, mixed-use real estate venture. Volkswagen automobiles and Vitamin Water are neither principal nor accessory products or services "sold, produced, manufactured, or furnished" on the premises of the City Inn Hotel but are, at best, products incidental to the principal business activity of these companies. The fact[] that, from time to time, Volkswagen automobiles are available for sale or rent on the used car lot owned by Malibu Lodging Investments/City Inn Hotel; that Vitamin Water is sold from a vending machine in the City Inn Hotel; and that the wall murals have generated interest in the advertising services provided by In Plain Sight Media and have increased the foot-traffic in the City Inn Hotel are not sufficient to establish that these wall murals advertise products or services that are the principal business activity of Malibu Lodging Investments/City Inn Hotel or In Plain Sight Media. Furthermore, based on the findings of fact herein, it is reasonable to infer that part of the rental income Malibu Lodging Investments/City Inn Hotel receives from In Plain Sight Media is for the right to use the hotel's exterior walls to display wall murals, so the wall murals [displayed by] Malibu Lodging Investments/City Inn Hotel [are] not entitled to the exemption in Section 479.16(1), Florida Statutes. Finally, based on the findings of fact herein, Malibu Lodging Investments/City Inn Hotel has failed to prove that the wall murals advertising Volkswagen automobiles and Vitamin Water are conforming or nonconforming signs for which a permit may be issued pursuant to Section 479.105(1)(e), Florida Statutes. There was no showing that wall murals have been continuously maintained on the exterior walls of the City Inn Hotel for the past seven years. The wall murals must, therefore, be removed. "Based on [her] Findings of Fact and Conclusions of Law," Judge Hart recommended that the Department "issue a final order finding that the wall murals attached to the exterior walls of the City Inn Hotel property violate[d] Section 479.07(1), Florida Statutes, and ordering that the wall murals be removed." In her Recommended Order, Judge Hart did not address the issue of whether the wall mural that had been attached to the east exterior wall of the Hotel, but had been removed prior to the final hearing, had been illegally erected and maintained, as had been alleged in Amended Notice Number 1005005La. Neither did she discuss the issue of whether the Department was guilty of engaging in selective enforcement. In the Final Order that it issued on December 21, 2007, the Department adopted Judge Hart's Findings of Fact and Conclusions of Law and ordered the following, "[b]ased upon [these] Findings of Fact and Conclusions of Law": ORDERED that Malibu Lodging Investments, LLC, d/b/a City Inn Hotel, shall remove the wall murals attached to the exterior walls of the City Inn Hotel property identified in the Department of Transportation's Notice of Violation-Illegally Erected Sign and Amended Notice of Violation-Illegally Erected Sign, Notice No. 100505La [sic], within 30 days of this final order. It is further ORDERED that should Malibu Lodging Investments, LLC, d/b/a City Inn Hotel fail to remove the murals, the Department of Transportation, or its contractor, will remove the murals without further notice and the cost of removal is hereby assessed against Malibu Lodging Investments, LLC, d/b/a City Inn Hotel, pursuant to Section 479.07(8)(d), Florida Statutes.[8] Petitioner currently has a lease agreement with Anheuser-Busch (Lease Agreement), pursuant to which it receives rental income for displaying murals advertising Anheuser-Busch products on the exterior of the Hotel.9 This is a critical revenue source for Petitioner. According to Petitioner's President, Judah Burstyn, without the wall mural revenue it receives, Petitioner would have to close the Hotel and file for bankruptcy. As part of the Lease Agreement, Anheuser-Busch has "occupie[d] space in the [Hotel]." Initially, the space it occupied was used just for "storage."10 Subsequently, it set up a "satellite [office] location" at the Hotel. The record is devoid of any persuasive competent substantial evidence that any Anheuser-Busch product, including Bud Light, Landshark Lager, or Beck's Beer, is now, or was at any time material to the instant case, sold, produced, manufactured, or furnished on the premises of the Hotel. At the time of the issuance of Notice Number T144MB, a mural advertising Bud Light covered the east exterior wall of the Hotel. This mural was replaced (on or before April 22, 2009) by a mural advertising Landshark Lager, which, in turn, was taken down (on June 17, 2009) and replaced (on or about June 24, 2009) by the mural now covering the east exterior wall. This mural advertises Beck's Beer. Like its predecessors, it is unpermitted, is within 660 feet of the edge of the right-of-way of I-95, and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The Department has not carried out the threat it made in Notice Number T144MB that, if the mural on the east exterior wall of the Hotel was not removed by Petitioner within 30 days of August 20, 2008, the mural would "be removed and disposed of by the Department without further notice" and "all costs associated with the removal [would] be assessed against the sign owner." More than a full year has passed since the issuance of Notice Number T144MB and an unpermitted mural (albeit one advertising a different Anheuser-Busch product) still covers the east exterior wall of the Hotel.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation issue a Final Order finding that the Mural on the east exterior wall of the City Inn Hotel is an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 25th day of August, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 25th day of August, 2009.

USC (1) 23 U.S.C 131 CFR (2) 23 CFR 70623 CFR 750.706(c) Florida Laws (19) 120.52120.54120.569120.57120.81125.0102161.58166.0425316.3025334.03479.01479.02479.07479.105479.11479.15479.155479.156479.16 Florida Administrative Code (1) 14-10.025
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DEPARTMENT OF TRANSPORTATION vs. DON'S PORTA SIGNS, 87-003841 (1987)
Division of Administrative Hearings, Florida Number: 87-003841 Latest Update: Mar. 04, 1988

Findings Of Fact On July 15, 1987, the DOT sign inspector observed a sign owned by Respondent in front of McDonald's restaurant on what appeared to be the right- of-way along the western side of U.S. 19, 800 feet south of Lime, in Pinellas County. The DOT right-of-way along U.S. 19 at this location extends 100 feet eastward of the centerline of U.S. 19. The right-of-way line on the western side of U.S. 19 at this location is 55 feet from the westernmost edge of the southbound lanes. Measurements taken from the pavement edge to the sign located the sign 48 feet from the edge of the pavement, which is 7 feet inside the right of way line. When a permit for this sign was obtained by Respondent from the City of Tarpon Springs Planning Department, a sketch accompanying the application (Exhibit 5) located the sign 30 feet from the edge of the pavement of U.S. 19. When cited for being on the right of way, this sign was located further from the pavement of U.S. 19 than landscaping shrubs planted and tended by McDonald's in front of the restaurant. For these reasons, Respondent assumed the sign was legally positioned. The location of the DOT right of way is not readily determinable by a businessman desiring to erect a sign in front of his business. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of location of the limit of the right-of-way. This is specifically true where additional right-of-way has been acquired by DOT along U.S. 19 and other highways. Upon being notified of the citation of this sign for being located on the right-of-way, Herb Selak, owner of Don's Porta Signs, rode up and down U.S. 19 and observed numerous signs located inside the power pole lines which had not been cited. Photographs of those signs were admitted into evidence as Exhibit A written list of those signs provided by Selak for DOT was admitted as Exhibit 10. Selak also observed a DOT vehicle parked in a restaurant parking, and he pulled in and observed one sign inspector emerge from the restaurant with another person and point out the portable sign in front of the restaurant. A photo of this sign showing it to be inside the power pole line was admitted into evidence as Exhibit 9. This sign was not cited by the inspector. Selak made an appointment and proceeded to Bartow to discuss the citing of his signs for violating the right-of-way. He gave a copy of Exhibit 10 to the chief of the outdoor advertising section for DOT District I. Most of these signs were subsequently cited by the DOT inspector for being on the right- of- way. Where signs are located on newly acquired right-of-way, the department takes the position that the sign owner be notified that the sign is in the right-of-way, and he is entitled to a reasonable time in which to remove the sign therefrom.

Florida Laws (2) 479.107479.11
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