The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Lamar acquired permits AA-634 and 7504 from Peterson Outdoor Advertising Company for a double-faced sign located on U.S. 98, South, approximately one-half mile north of Crystal Lake Drive on a site leased from Mary D. and Billy Allred. The lease (Exhibit 1.), executed in 1978, was for a three-year term with automatic renewal for an additional five year period and thereafter from year to year on the same terms and conditions unless terminated by lessee by giving 30-days notice prior to the end of the lease year. By warranty deed dated June 14, 1983, (Exhibit 2.) Sun State acquired the property on which this sign was located from Allred. Rent on this lease for 1984 was sent to Allred by Lamar, endorsed over to Sun State and cashed by Sun State. A check for rent for 1985 sent by Lamar to Sun State was never negotiated. By letter dated April 3, 1985, (Exhibit 4.) Sun State Homes told Lamar to immediately remove the sign from its property on U.S. 98, South. On May 16, 1985, Sun State applied for a permit for a sign on U.S. 98, 550-feet north of North Crystal Lake Drive. This application was disapproved by DOT on June 7, 1985, in Exhibit 3 because it was in conflict with the sign for which Lamar held tags for the proposed site. On or about the same time, Sun State applied to Polk County for a building permit to erect a sign at this site. Polk County disapproved the application because DOT had denied the permit. By letter dated May 29, 1985, Sun State appealed the denial of their application. On or about May 27, 1985, Lamar removed their sign from Sun State's property. On May 28, 1985, Lamar submitted an application for a permit to erect a sign on U.S. 98, 1,200 feet north of N. Crystal Lake Drive (Exhibit 5.) and simultaneously surrendered tags no. AA-634 and 7504. Lamar had obtained permission from the owner of that property to erect a sign at this site. This application was denied by DOT because of the appeal by Sun State from its denial. DOT will not approve an application for a sign permit when the right of occupancy of the site is contested. Lamar appealed this denial and the two cases were consolidated for hearing. The two applications are mutually exclusive as only one can be granted without violating spacing requirements.
Findings Of Fact Interstate Highway 95 (I-95) and State Road 16 (SR 16) intersect in St. Johns County, Florida. There is an interchange located at the intersection of I-95 and SR 16 in St. Johns County. The sign in question is the northernmost of three signs constructed by Respondent on properly zoned private property owned by Charles Usina located southwest of the above interchange and adjacent to I- 95, fifteen feet from the DOT right of way. There is an entrance ramp southwest of the interchange that permits traffic traveling eastbound on SR 16 to enter the southbound lane of I-95. Prior to submitting sign applications to DOT, Respondent's President, Robert Harry, met with Helen Hession at the interchange. Ms. Hession is a Property and Outdoor Advertising Inspector employed by DOT in its District II. Mr. Harry requested the meeting with Ms. Hession to obtain her interpretation of where to begin measuring along the southbound lane of I-95 under DOT's "500 foot rule." At that meeting, Ms. Hession gave her interpretation as to how to locate the point of beginning measurement according to Rule 14-10.009 F.A.C. as enforced by DOT through Section 479.02(1) F.S. The relevant language of Rule 14-10.009 F.A.C. provides: Outside incorporated towns and cities, no structure may be located adjacent or within five hundred (500) feet of an interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way, or an interstate highway. Mr. Harry had been in the business of outdoor advertising for many years, but this was his first experience with this type of measurement using the "500 foot rule" at this type of interchange. Mr. Usina was present with Mr. Harry and Ms. Hession for their pre-application meeting on January 19, 1991. At that time, Ms. Hession indicated the point of beginning for them to measure from in order to utilize the "500 foot rule." Ms. Hession testified consistently and credibly that she had told Mr. Harry and Mr. Usina that the point to begin measuring the 500 feet pursuant to the rule was at the southern tip of the "gore" located between I-95 and the southbound entrance from SR 16. The "gore" is an asphalt triangle marked with white lines that is widest at the northern end where vegetation grows between the southbound lane and the entrance. According to her testimony, Ms. Hession stood in the middle of the gore, facing south, and stated that, under the rule, the measurement should start at the point of the triangle. Ms. Hession illustrated her formal hearing testimony by marking "Point 3" on Joint Exhibit 12, a demonstrative sketch of the interchange and environs, to show the location she had indicated to Mr. Harry and Mr. Usina as the point of beginning. Mr. Harry and Mr. Usina testified equally credibly and consistently that during their pre-application meeting, Ms. Hession had indicated to them that the point to begin measuring was located at the northern end of the gore, or the place at which the vegetation and the asphalt met. For purposes of illustration, they identified the point that Ms. Hession indicated during their pre-application meeting as being "Point 2" on Joint Exhibit 12. While it is clear that Mr. Harry was not seeking Ms. Hession's personal interpretation of "the 500 foot rule," but was seeking the agency's interpretation of the rule it has promulgated and is charged with administering, it is equally clear that Ms. Hession and Mr. Harry never had a meeting of the minds on the exact location that she told him to begin his measurements. Ms. Hession was in her bare feet and unwilling to move around with Mr. Harry and Mr. Usina on the roadway during part of their meeting, and Mr. Harry and Mr. Usina are not entirely consistent as to where everyone was standing at crucial times during their discussion. It is easy to see how a misunderstanding occurred. Mr. Harry made the measurements for Respondent's sign permit application beginning at "Point 2," the northern end of the gore where the end of the asphalt gore meets the vegetation between the entrance and the highway. This location is over 400 feet closer to the interchange than the point Ms. Hession testified she had indicated to Mr. Harry. On January 29, 1991, Respondent filed an application for a DOT permit to construct the sign in question and for the two other signs. The application for the sign in question stated that the sign would be located on private property adjacent to the southbound lane of I-95, fifteen feet (perpendicular measurement) from the right of way and .15 miles from the nearest intersection. Simple arithmetic shows .15 miles equals 792 feet. The sign in question was not actually in existence at the time the application was reviewed and approved. For purposes of DOT review and approval of Respondent's permit application, Mr. Harry had placed stakes bearing the FCOA initials on the DOT right of way at locations parallel to where he intended to erect the signs on Mr. Usina's property. 2/ When reviewing Respondent's application prior to permit approval, Ms. Hession did not rely on the location stated in the application, (.15 miles from nearest intersection), but made her own on-site measurements. She measured using a Distance Measuring Instrument (DMI) mounted in Bartley (Bob) Burch's truck. Mr. Burch drove the truck and observed the stakes but did not participate in making the measurements. Use of the applicant's stakes and DOT's own measurements is standard operating procedure for DOT in reviewing/approving permit applications because sometimes the applicants' measurements as made or as stated on the application are incorrect. Use of the DMI is also standard operating procedure for DOT in this process. The DMI in question was calibrated for accuracy by Mr. Burch immediately prior to Ms. Hession taking the measurements. During her pre-approval application review, Ms. Hession measured the distances between stakes bearing FCOA initials and the distance of the first stake from the SR 16 overpass. She also used the southern tip of the gore ("Point 3") as a reference point when taking her measurements. She measured to the first stake from SR 16 and found the first stake to be .3 miles distant therefrom. (TR-44-45, 53) She reset the DMI at zero and then measured 1500 feet south to the next stake; again reset the DMI at zero and measured 1500 feet south to the third and final FCOA stake. During her pre-approval application review, Ms. Hession found the first FCOA stake to be in a location consistent with her understanding that "Point 3" was the correct point of beginning for applying the "500 foot rule." The first stake was 500 feet south of the tip of the gore ("Point 3"). Using the measurements obtained with the DMI during the pre-approval application review, Ms. Hession approved Respondent's application for a sign .3 miles (not the applied-for .15 miles) south of SR 16, the intersection of SR 16 and I-95. Simple arithmetic shows .3 miles equals 1584 feet. Subsequent to the pre-application meeting with Ms. Hession, but prior to the issuance of the DOT sign permits/tags, Respondent entered into a ground lease agreement with Mr. Usina 3/ and also entered into outdoor advertising lease agreements for the sign (two sign faces) involved here. 4/ These advertising lease agreements were later voided due to a stop work order issued by DOT (See Finding of Fact 19). Respondent has subsequently mitigated some of its loss therefrom by entering into other leases at lower figures. Respondent's six applications for outdoor advertising sign permits were approved by Ms. Hession and processed through DOT's main office in Tallahassee. Permits and tags were issued by DOT on February 22, 1991. Issuance of these permits and tags constitutes final agency approval of the application in question. The permits authorized the erection of three signs in the vicinity of the I-95 and SR 16 interchange at .30, .58, and .86 miles respectively south of the SR 16 intersection. Respondent has never challenged the fact that each of these signs was permitted significantly further south and further away from the intersection than each of the locations applied for: .15, .43, and .72 miles, respectively. Respondent has never protested that the permit issued for the sign in question was not for .15 miles (792 feet) from the intersection, but was for .3 miles (1584 feet) from the intersection. Respondent timely and properly affixed the permit tags to the three monopole structures, as they were constructed. After the permits/tags were issued, Respondent borrowed $25,000 to erect the monopole/sign and Mr. Harry obligated himself to repay that loan with interest. Respondent began construction of the sign in question after February 22, 1991. After a monopole support for the sign in question was installed, two of Respondent's business competitors notified Tom Brown, DOT's Outdoor Advertising Administrator for District II and supervisor of Ms. Hession and Mr. Burch, that Respondent's northernmost sign in this location had been placed too close to the intersection/interchange. Mr. Brown reacted by issuing the stop work order on construction on May 2, 1991, which was posted on Respondent's monopole. The stop work order stated that the structure was within 500 feet of an intersection, in violation of Rule 10-14.009 F.A.C., as enforced through Section 479.02(1) F.S. Mr. Brown subsequently notified Mr. Harry by letter that pursuant to the authority of 479.105(1)(a), the stop work order had been issued because of an alleged violation of Chapter 14-10.009(B) SPACING OF SIGNS (2)(b) F.A.C. which is enforced through Florida Statutes Chapter 479.02(1). Respondent completed the sign in question after the stop work order was issued. Subsequent to her approval of the sign permits, Ms. Hession was instructed by Mr. Tom Brown that her interpretation of the agency rule was incorrect and that the proper place to have begun measuring for purposes of the "500 foot rule" was where the outside edge of the interchange entrance lane disappeared into the outside edge of the through lane of I-95. Bob Burch, a District II Outdoor Advertising Inspector of equivalent rank with Ms. Hession, testified that he interpreted the rule in a manner identical to Mr. Brown's interpretation. For purposes of illustration, this location is marked as "Point 1" on Joint Exhibit 12. The testimony of Tom Brown as to why his interpretation should be considered the agency's interpretation of the rule is sketchy but together with the corroboration of Bob Burch that this interpretation has been the standard application, it is accepted that DOT, as an agency, has interpreted the "500 foot rule" language to mean that a sign may not be located within 500 feet of the point at which the outside edge of an entrance disappears into the outside edge of a through lane on an interstate highway. This interpretation ("Point 1," for purposes of the instant case) is also consistent with the language of the rule and is the most reasonable reading of that language. "Point 2" is not consistent with the language of the rule. "Point 1," Mr. Brown's and Mr. Burch's interpretation of the rule's point of beginning, is furthest from the intersection, at the beginning of the through lane for I-95. "Point 3," Ms. Hession's original erroneous interpretation, is next furthest from the intersection, at the tip of the gore. "Point 2," Mr. Harry's mis-understanding of Ms. Hession's erroneous interpretation is closest to the intersection, where the gore meets the vegetation. Naturally, any distance measured from Mr. Harry's understanding of the point of beginning would be further north than, and closer to, the interchange than would be locations measured from either of the other two points. Immediately after the stop work order was issued, the sign in question was inspected and measured by Ms. Hession. This time she measured its location using a 100-foot tape. She used SR 16 and its overpass as her starting point. SR 16 and its overpass are permanent markers. (TR-47-49) She and Mr. Burch found that the monopole in question had been erected several hundred feet north of the location at which they had previously found Respondent's first stake. The monopole as constructed was less than 100 feet south of the tip of the gore, "Point 3," and north of "Point 1". According to these after-the-fact measurements, Respondent's erected monopole is not 500 feet or more south of either "Point 3" or "Point 1" and it is not located .3 miles from SR 16, as specified in the permit or even .3 miles from Points 1, 2, or 3.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order affirming the May 2, 1991 notices, revoking the permit for the single sign in question, and ordering the removal of the sign within 30 days. DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992.
The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statute 479.11(1), sign erected without a state permit. Whether subject sign is a new and different sign inasmuch as it has new facings, is erected on new poles and is materially elevated from the location of the previous sign. Whether subject sign is in violation of federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued the Respondent, Peterson Outdoor Advertising Corporation, notice of alleged violation of Chapter 479, F.S., on October 27, 1975 with respect to the following sign: Highway: S.R. 8 (I-95) Location: Junction I-95 and U.S. 17 Copy: 76 Truck Stop Pursuant to this notice the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. This request was made by John T. Graczol, vice president of leasing, by letter dated November 6, 1975. Respondent is the owner of the sign referred to in paragraph 1 of these findings. A sign with similar copy was erected by the Respondent prior to 1970 at the approximate location of subject sign. The Respondent owned and maintained the sign from time of erection up until January of 1975 when such sign was removed and the subject sign built. Subject sign is erected in a nonconforming area both in zoning and on a ramp outside of the city limits on an interstate highway. It is nearer than 660 feet from the nearest edge of the right of way of an interstate highway system in an open rural zoning area and can be read by persons traveling on the interstate highway system. The sign that was removed was in the approximate location with similar copy but with an elevation of under 10 feet. Subject sign is a replacement sign in the approximate location as the replaced sign with the same type of copy. The replacement sign is on different poles and at a more elevated height (from under 10 feet to over 16 feet) than the replaced sign. The replacement subject sign is much more visible to the traveling public than the old sign because of the materially increased elevation. No part of the old sign is standing and the replaced sign has been removed The Petitioner testified that the value of the sign increased by $484.00 and it is the finding of the Hearing Officer that the replacement sign is of more monetary value than the replaced sign. The new facing materials, the replacement of poles and the decided increase in elevation, make subject sign a different sign within the meaning of Chapter 479, F.S. and the federal regulations, thus, becoming a new sign requiring a permit rather than qualifying as nonconforming with the customary maintenance or repair of existing signs allowed under Section 479.01(12), F.S., infra. The owner of the sign was given written notice of the alleged violation and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject sign if said sign has not been received by the owner within ten (10) days after entry of the final order herein. DONE and ENTERED this 30th day of June, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire P. O. Box 539 Winter Park, Florida Mr. O. E. Black Administrator Outdoor Advertising Section Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. F. S. Whitesell District Sign Coordinator South Marion Street Lake City, Florida 32055
The Issue Whether the billboard structure owned by Petitioner, National Advertising Company, located adjacent to U.S. 1/State Road 5, at mile marker 87.5, City of Islamorada Village of Islands, Islamorada, Monroe County, Florida, is in violation of the provisions of Rule 14-10.007, Florida Administrative Code, or Chapter 479, Florida Statutes.
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Petitioner is the owner and operator of an outdoor advertising sign ("billboard") located adjacent to U.S. 1/State Road 5, at mile marker 87.5, City of Islamorada Village of Islands, Islamorada, Monroe County, Florida. In the immediate area of where the billboard's location, U.S. 1/State Road 5 is a U.S. Federal Aid Primary Highway, over which Respondent has jurisdiction. The billboard is permitted pursuant to state sign permit numbers AS788 and AS789. The billboard is 570 feet from the nearest permitted billboard. Respondent considers the billboard to be nonconforming because it is not in compliance with the current spacing requirements on the Federal Aid Primary Highway System. In 1984, the spacing of billboards on Federal Aid Primary Highways changed from 500 feet to 1,000 feet. When the spacing requirements changed, there was a savings provision in Subsection 479.07(9)(c), Florida Statutes (1984), that allowed signs that were conforming in 1984 did not become nonconforming because of the change in the spacing requirement. The billboard was permitted on August 26, 1986. Petitioner's Application for Outdoor Advertising Sign Permit, Tag No. AS788, indicates that the billboard is "500+" feet from the nearest permitted sign and that the method of marking site is that it was an "existing sign," which suggests that the billboard existed prior to the subject permit. If the billboard was built in 1986, it should not have been permitted because the spacing requirement in 1986 was 1,000 feet. This permit information is based upon a document produced as a result of a statewide billboard inventory prepared by a subcontractor of Respondent. There were mistakes in the statewide inventory. Tag numbers AS788 and AS789 could be original tags or replacement tags. The billboard was a ten-foot by 40-foot structure with a two-foot by 38-foot A frame; five poles; and six stingers horizontal made by two-foot by six-foot by 20-foot lumber. On July 21, 2001, a storm came through the City of Islamorada Village of Islands, which caused the five vertical poles that held the billboard erect to be broken. As the storm blew through, the upper structure of the billboard was blown over and rested on the ground. The upper structure of the billboard suffered little damage; importantly, the structural members of the billboard, with the exception of the five vertical poles, were intact and could be reused. Petitioner was prevented from re-erecting the billboard by the City of Islamorada Village of Islands. On June 18, 2002, Petitioner and the City of Islamorada Village of Islands entered into an agreement that allowed Petitioner to remove the billboard and avoid a fine in the amount of $100.00 per day. The value of the structural materials in the billboard immediately prior to the July 21, 2001, storm was $1,353.60. The cost of materials to repair the billboard immediately after the July 21, 2001, storm was $536.50. The replacement materials constitute 39.7 percent of the value of the materials in the sign prior to the storm damage. The only new materials needed to re-erect the billboard are the five vertical poles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, issue a final order rescinding its Notice of Violation and allowing Petitioner, National Advertising Company, to re-erect its billboard at the same location and in the same configuration as previously permitted. DONE AND ENTERED this 14th day of May, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 14th day of May, 2003. COPIES FURNISHED: J. Ann Cowles, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Respondent's outdoor advertising permits BU 839 and BU 840 became void pursuant to the provisions of Section 479.07(5)(a), Florida Statutes.
Findings Of Fact On August 18, 1998, Petitioner issued valid state outdoor advertising permit numbers BU 839 and BU 840 to Respondent for a sign with two faces, one facing north and the other facing south, to be erected at a specified location on the west side of State Road 5, 2000 feet north of PGA Boulevard in Palm Beach County, Florida. Section 479.07(5)(a), Florida Statutes, provides, in pertinent part, as follows: . . . If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. 1/ Petitioner adopted the following definition at Rule 14- 10.001(2)(c), Florida Administrative Code, on June 28, 1998: (c) "Completed Sign", for the purposes of Section 479.07(5)(a), Florida Statutes, means the erection of the sign structure as described in the permit, as well as attachment of the facing to the structure, and the posting of a message to the facing. Petitioner asserts the permits became void by operation of law on May 16, 1999, because that date is 271 days from August 18, 1998, the date the subject permits were issued. As of May 16, 1999, no completed sign had been erected by Respondent on the permitted site as the term "completed sign" has been defined by Rule 14-10.001(2)(c), Florida Administrative Code. Petitioner notified Respondent on May 21, 1999, that the subject permits were void. No representative of Petitioner misled or lulled Respondent into inaction at any time pertinent to this proceeding. Palm Beach County, the local permitting agency, requires a "Special Permit" before an outdoor advertising sign can be erected within its jurisdiction. Respondent applied for such a Special Permit for the subject signs on March 10, 1998. Palm Beach County issued Respondent a Special Permit for the subject location, but imposed a special condition, to which Respondent agreed. The special condition required Respondent to remove one of its other signs worth approximately $100,000. In addition to the Special Permit, Respondent was required to obtain from Palm Beach County a building permit for this project. That building permit was issued May 14, 1998. Respondent applied to Petitioner for the two permits that are at issue in this proceeding on May 18, 1998. On June 16, 1998, Petitioner denied Respondent's application on the grounds that additional information was needed. After the additional information was supplied, the subject permits were issued on August 18, 1998. On November 15, 1998, Respondent finished the site work that had to be done before the sign could be constructed. The Palm Beach County building permit expired 160 days after it was issued. Respondent secured the renewal of that permit on January 20, 1999. Petitioner placed orders for the sign construction in February 1999. The structural components arrived at the permitted site on April 5, 1999. Between April 5 and April 9, 1999, a 25-foot deep hole was dug, into which the 47-foot long, 4-foot diameter steel monopole was lowered by crane, and six tons of concrete were poured to construct a foundation and support for the sign superstructure. On April 9, 1999, Palm Beach County approved the final inspection of the excavation and foundation. On April 13, 1999, the superstructure of the sign was lifted onto the steel monopole by crane and installed, thereby completing construction of the two-faced sign. 2/ The cost of this construction totaled approximately $50,000. On April 14, 1999, Palm Beach County issued a stop work order (red tag) to Respondent for failure to post permit and plans at the job site and because a subcontractor blocked traffic with a crane that was being used to erect the sign structure. This red tag prevented Respondent from doing any further work on the two-faced sign. Had Respondent violated the red tag, it would have been exposed to a civil penalty of $250 per day and misdemeanor charges. Shortly after it learned that a red tag had been issued on April 14, 1999, representatives of Respondent met with Palm Beach County building officials and disputed their rationale for the red tag. Believing that the red tag issue with Palm Beach County had been resolved, Respondent entered into contracts with advertisers for the respective faces of the two-faced sign, one on April 22 and the other on May 11, 1999. It would have taken less than a day to install advertising copy on these signs. Palm Beach County did not lift its red tag on these signs until July 21, 1999. On August 9, 1999, Palm Beach County approved the two-faced sign on final inspection. Respondent placed advertising copy on both faces of the sign on August 9, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that applies the doctrine of equitable tolling and declares permits BU 839 and BU 840 valid. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. Hearings 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 this 28th day of December, 1999.
Findings Of Fact Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4. DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate. As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4. Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader." The sign was permitted by the City of Lake Mary on October 17, 1984. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T. DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of October, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mac Davidson Maxmedia Outdoor Advertising Post Office Box 847 Winter Park, Florida 32790 Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
The Issue Whether the Petitioner's outdoor advertising sign located at 1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF. Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits. On June 26, 1997, the above-referenced sign did not have a current valid permit. On June 26, 1997, the above-referenced sign was not an on-premises sign. Charles Tucker is the owner of the subject sign and the property on which it is located. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon. Charles Tucker has owned the subject sign since 1974. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes. There has been a seven-year period of time during which the subject sign displayed advertising copy. No structural changes have been undertaken on the subject sign since it was constructed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued. DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Mark Gamble Real Estate Representative Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811 Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether two signs owned by Respondent Simbo's Restaurant-Auto-Truck Stop, one located along Interstate 10 approximately .8 of a mile east of State Road 79 and the other located along Interstate 10 approximately .8 of a mile west of State Road 79, each bearing the copy: "Simbo's Restaurant-Auto-Truck Stop Next Exit-Open 24 Hours", are in violation of Section 479.07, Florida Statutes and Section 479.11, Florida Statutes, neither of which have been granted a permit and both of which are within twenty (20) feet of the right-of-way of Interstate 10.
Findings Of Fact No permit has been issued to or is affixed to either of the subject signs. The distance from the fence running parallel to Interstate 10 to the sign located approximately .8 of a mile west of State Road 79 is fourteen and one-half feet. The distance from the fence running parallel to Interstate 10 to the sign located approximately .8 of a mile east of State Road 79 is five and eight-tenths feet. The distances from both signs to the edge of the right-of- way of Interstate 10 are less than five hundred (500) feet. No application for the erection of either sign was made prior to the erection of the signs. These signs were erected in the first half of the year 1976 on private property. The Respondent contends that the classifications established in the Florida Outdoor Advertising Law, Chapter 479, violated the equal protection clause of the 14th Amendment of the United States Constitution. There is no merit to this contention.
Recommendation Remove subject signs if such signs have not been removed by the owner within ten (10) days after the final order herein. DONE and ORDERED this 5th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 J. D. Bodiford, Esquire Post Office Box 1022 Panama City, Florida 32401 Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
