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
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2001.
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 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 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, J. B. Davis, Inc., owns an outdoor advertising sign which is situated on the south side of I-10, 3.2 miles east of the Jefferson County line, in Madison County, Florida. This sign faces eastbound traffic. I-10 is a part of the interstate highway system, and it is open to traffic. The subject sign is visible from the main traveled way of I-10. There is no zoning in Madison County, Florida. The subject sign has been erected and is situated beyond 800 feet from any existing business, and it is within 660 feet from the right-of-way of I-10. The subject sign does not have a permit issued by the Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Respondent's sign situated on the south side of I-10, 3.2 miles east of the Jefferson County line, facing eastbound traffic, in Madison County, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 3rd day of March, 1985. 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 3rd day of March, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. B. Davis, President. J. B. Davis, Inc. Base and Duval Streets Madison, Florida 32340 Paul A. Pappas, Secretary 562 Haydon Burns Building Tallahassee, Florida 32301
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 Petitioner was a limited partner in Wedgewood Limited Partnership, which acquired the property on which this sign is located in 1981. The property was developed by the limited partnership, and the sign is located alongside the golf course built by the partnership as a part of the development. The sign advertised the development. In 1983, the partnership applied for a permit for this sign and was told by Respondent that no permit was required for the sign as it qualified as an "on premise" sign. In 1986, the partnership was dissolved, and Petitioner acquired the 1/4 to 1/2 acre site on which this sign is located. The sign needs repair and renovation, and Petitioner desires to use this location as a site of a permitted outdoor advertising sign. Lamar Outdoor Advertising holds a permit for a sign 306 feet west of Petitioner's sign on the same side of I-4 and facing in the same direction. The Lamar sign was erected in 1968. Respondent denied the permit requested because the location of Petitioner's sign was within 1500 feet of the permitted sign owned by Lamar.
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact On November 13, 1984, the Petitioner, Bill Salter Outdoor Advertising, Inc., applied for permits to locate an outdoor advertising sign on the west side of SR 291, approximately .1 mile north of I-10, in Escambia County, Florida. One of the two faces of this sign would face north and the other south. This location is outside the corporate limits of any city or municipality. I-10 and SR 291 intersect in the area where the Petitioner proposes to locate its sign. This site is 492 feet from the nearest edge of the interstate where it intersects with SR 291 at the westbound entrance ramp from SR 291. This intersecting point is on the west side of SR 291, the north side of I-10, and it is within 500 feet of the interchange area. A sign placed at the proposed site would be visible to traffic on the main-traveled way of I-10.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the application of Bill Salter Outdoor Advertising, Inc., for permits to locate an outdoor advertising sign on SR 291, .1 mile north of I-10, facing north and south, in Escambia County, Florida, be DENIED. THIS RECOMMENDED ORDER entered this 3rd day of April, 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 3rd day of April, 1986. COPIES FURNISHED: Bill Salter Outdoor Advertising, Inc. Post Office Box 422 Milton, Florida 32572 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
