The Issue The issue is whether Respondent's Notices of Intent to Revoke Sign Permit should be upheld.
Findings Of Fact Petitioner, Woody Drake Advertising, Inc., owns and operates an outdoor advertising sign (the "Sign"), which is located off Interstate 10 (I-10) in Leon County, Florida, and bears tag numbers AG329 and AG850. Respondent, Florida Department of Transportation, 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 (controlled portion) in accordance with Chapter 479, Florida Statutes. Jack Wainwright, Jr., is the owner and operator of Petitioner, having purchased the company from his parents approximately 13 years ago. Mr. Wainwright's family has been in the business of outdoor advertising since at least 1976. The Sign consists of one structure with two faces and is located within the controlled portion of I-10, .239 miles east of Still Creek. The Sign is a non-conforming, wooden, V- shaped, 12-pole sign. On June 28, 2009, the Sign sustained damage from high winds associated with a storm. The next day, after being notified of the damage, Mr. Wainwright went to the sign's location and physically inspected it. Grimes Cranes is in the business of, among other things, building and maintaining outdoor signs, such as the Sign at issue. Walter Grimes has owned Grimes Cranes since 2000. Mr. Grimes has worked in the business of erecting and maintaining wooden and metal outdoor advertising signs for approximately 23 years. On average, Mr. Grimes erects 18-to-20 outdoor advertising signs a year. By his estimate, Grimes Cranes has moved, erected, or maintained approximately 75 percent of the outdoor advertising signs in Tallahassee, Florida. Mr. Wainwright contacted Mr. Grimes to obtain an estimate to repair the Sign. They met at the Sign's location on either June 30 or July 1, 2009. Based upon his experience and visual inspection of the uprights, Mr. Grimes concluded that five of the 12 uprights could be reused when repairing the Sign as they were neither broken, splintered, nor otherwise damaged. Mr. Grimes concluded that 35-to-40 percent of the total Sign had been destroyed by the storm. This conclusion was based upon his personal examination of the Sign and his experience in maintaining and erecting outdoor advertising signs. After Mr. Grimes' inspection of the Sign, Mr. Wainwright disassembled the Sign and transported the materials to his father's farm. Once he disassembled the Sign, Mr. Wainwright assessed the damage to it. Based upon his knowledge and experience as owner of Petitioner sign company for the past 13 years, Mr. Wainwright determined that six of the 12 uprights were reusable. Although Mr. Grimes intended to use the five uprights he found to be undamaged in the rebuilding of the Sign, he was not able to do so because Mr. Wainwright had removed the uprights from the area. Mr. Grimes determined it was simpler and more economical to install new uprights on the site rather than haul the reusable ones from their present location on the Wainwright family farm. Ms. Lynn Holschuh has been Respondent's State Outdoor Advertising and Logo Administrator since 1992. While well educated with both a bachelor's and master's degree in English, she has not worked in the business of erecting outdoor signs; has never personally erected an outdoor advertising sign; and has no personal experience building an outdoor advertising sign. The two Notices issued by Respondent that are the basis for this action were signed by Ms. Holschuh as the State Outdoor Advertising and Logo Administrator. The Notices state Florida Administrative Code Rule 14-10.007(6)(a) as the basis for the proposed action, alleging that "[m]ore than 60% of the upright supports have been damaged such that replacement is required." Ms. Holshcuh never personally inspected the Sign's uprights and has no personal knowledge as to whether eight or more of the uprights were damaged such that normal repair practices of the industry required their replacement. The Notices were issued after she reviewed photographs taken on July 7, 2009, by an inspector for Respondent. Ms. Holschuh determined, after inspecting the photographs, that ten of the Sign's uprights had been damaged since only two were standing when the inspector took the pictures. This was an assumption on her part based upon the photographs, not her personal inspection of the Sign and uprights following the damage from the storm. Respondent's inspector returned to the site of the Sign on August 17, 2009, took additional photographs, and noted that a new 10-pole sign had been erected on the site. The Sign had been permitted as a 12-pole sign, but had been rebuilt as a 10-pole sign with 10 brand new uprights. Respondent interprets Florida Administrative Code Rule 14-10.007(6)(a) as requiring that the sign owner use the poles that are not damaged in rebuilding the sign. Respondent does not interpret this rule provision to allow the erection of a completely new sign. Ms. Holschuh admitted that Florida Administrative Code Rule 14-10.007(6)(a) does not explicitly require the actual re-use of the non-damaged upright supports when a non-conforming sign is re-erected. Respondent concedes that as long as 60 percent of the uprights had not been damaged to the extent that replacement of the upright supports was required due to the damage, the sign could be disassembled and re-erected. Ms. Holschuh agreed that the Sign could have been disassembled and re-erected if no more than seven of the uprights had sustained damage. Damage to seven of the uprights would constitute 58.33 percent replacement while damage to eight of the uprights would constitute 66.67 percent replacement.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Notices of Intent to Revoke Sign Permit. DONE AND ENTERED this 7th day of January, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 7th day of January, 2010. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Claude Ridley Walker, Esquire Guilday, Tucker, Schwartz & Simpson, P.A. 1983 Centre Pointe Boulevard, Suite 200 Tallahassee, Florida 32308-7823 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie C. Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 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
Findings Of Fact On January 27, 1982, the department of Transportation notified the Petitioner, Vortex Springs, Inc., that its applications for the outdoor advertising sign permits which are the subject of these proceedings were denied because the zoning had been determined to be unacceptable. These applications seek permits authorizing two signs on I-10 in Holmes County, Florida, one approximately 1.38 miles west of SR 81 facing west, and the other approximately 1.1 miles east of SR 81 facing east. Both of these locations are inside the city limits of the municipality of Ponce de Leon, Florida. The signs for which the Petitioner seeks permits were already erected when the subject applications were submitted to the department. There was no other evidence presented that was relevant or would support additional findings of fact.
The Issue The issue in this case is whether Petitioner Lamar Advertising Company-Lakeland (Lamar) rebuilt a billboard that it owns on the Florida Turnpike in violation of the law that limits the rebuilding of nonconforming signs.
Findings Of Fact Lamar is the owner of a billboard which displays outdoor advertising and is located on the Florida Turnpike near State Road 91 in Martin County. It is a "back-to-back" billboard with both north-facing and south-facing advertising. The advertising is permitted by DOT Outdoor Advertising Sign Permits 13882 and 13883, and the billboard bears tag numbers CC087 and CC088. The billboard was first built in 1972 and was acquired by Lamar in 1998. The billboard is 549 feet from the nearest sign to the south and 570 feet from the nearest sign to the north. When the sign was built, there were no minimum spacing requirements applicable to signs on the Florida Turnpike, which was classified by DOT as a secondary roadway. Before 1984, the minimum spacing requirement for "federal-aid primary highways" (primary roadways) was 500 feet. In 1984, Subsection 479.07(9), Florida Statutes, was amended to require a minimum spacing between signs on primary roadways of 1,000 feet. Subsection 479.07(9), Florida Statutes (1984), included a provision that not only grandfathered existing signs on primary roadways that were less than 1,000 feet from other signs, but went further to state that such signs, if conforming before the spacing requirement was changed, would not be construed thereafter as nonconforming. The significance of this provision is that signs on primary roadways that were more than 500 feet, but less than 1,000 feet from other signs in 1984, are not subject to Florida Administrative Code Rule 14-10.007(2), which limits the rebuilding of damaged nonconforming signs. In November 1995, the Florida Turnpike was added to the National Highway System. Thereafter, DOT treated the Florida Turnpike as a primary roadway. The reclassification of the Florida Turnpike from a secondary roadway to a primary roadway was not accomplished through a statute or DOT rule. DOT interprets the grandfathering provision in Subsection 479.07(9), Florida Statutes, to apply only to signs that were on primary roadways in 1984 when the 1,000-foot spacing requirement was established. Because the Florida Turnpike was not a primary roadway in 1984, DOT contends that signs on the Florida Turnpike less than 1,000 feet from other signs are nonconforming signs and are subject to the rebuilding limitations in Florida Administrative Code Rule 14-10.007(2). Hurricane Wilma struck Florida in October 2005. Mark Johnson, DOT's outdoor advertising inspector for the area that includes Martin County, testified that in late October or early November 2005, he saw that Lamar's billboard had been seriously damaged. He testified that he saw "everything down" and "poles splintered." He took photographs and made notes about his inspection of the damage. Mr. Johnson said he sent the photographs and notes from his October 2005 inspection to DOT headquarters in Tallahassee. Without explanation, they were not offered into evidence at the final hearing. Mr. Johnson testified that on December 7, 2007, he saw that the billboard was rebuilt. He inspected the billboard on that date, and he believes that the six poles that support the billboard are new poles. He saw and photographed old sign materials, including at least one pole, on the ground next to the billboard. It cannot be determined from the photograph whether the pole on the ground is splintered. Lamar denies that the billboard was destroyed and then reconstructed between October and December 2005. It presented the testimony of its real estate/leasing manager, David Henry, who stated that the billboard was not destroyed by the hurricane, and none of its six support poles were replaced. Mr. Henry showed that none of the leasing or maintenance records of Lamar indicate that the billboard was rebuilt. Neither party seemed to recognize the significance to this dispute of photographs of the billboard taken in August and November 2005. Petitioner's Exhibit 3I is a September 2, 2005, letter from DOT to Lamar, informing Lamar that the billboard had been without advertising for 10 months and was about to be deemed abandoned. One of the photographs attached to the letter and admitted into evidence as Petitioner's Exhibit 3J was taken on August 31, 2005, two months before Mr. Johnson's first inspection. Petitioner's Exhibit 2, which is some general information about Lamar's sign permits that is accessible from DOT's internet website, includes photographs of the billboard taken on November 19, 2005, just after Mr. Johnson's first inspection. To reconcile Mr. Johnson's testimony with the November 19, 2005, photographs, it would be necessary to find that the photographs depict the billboard very soon after it was rebuilt. However, there are no discernible changes in the main structural elements of the billboard as they appear in the November 2005 photographs from how they appear in the August 2005 photographs. The November photographs do not appear to show a billboard that was just constructed. The old sign materials on the ground that appear in photographs taken by Mr. Johnson on December 7, 2005, would not have been visible to him in October 2005 because of the dense vegetation around the billboard that existed in October 2005. Lamar removed much of that vegetation before Mr. Johnson's December 2005 inspection.1/ The old sign materials could have been there long before October 2005. Lamar removed the advertising sign facings from the billboard when Hurricane Wilma was approaching to avoid damage to the sign facings and billboard and replaced the sign facings before Mr. Johnson's December 2005 inspection. Mr. Johnson appeared to be a credible witness, but he might have been confused by Lamar's temporary removal of the sign facings from the billboard and the clearing of vegetation that exposed old sign materials on the ground next to the billboard. On this record and without Mr. Johnson's October 2005 photographs that purport to show Lamar's billboard to be substantially destroyed, DOT failed to prove that more than 50 percent of the structural materials in the billboard was replaced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order rescinding its Notice of Intent to Revoke Sign Permit regarding Outdoor Advertising Sign Permits 13882 and 13883. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 8th day of June, 2007.
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 U.S. 1 is a federal-aid primary highway and, in the vicinity of University Boulevard, is a divided highway, with parkway between north-and- southbound lanes. University Boulevard (SR 109) is not a federal-aid primary highway. Petitioner holds a lease on the property on which the proposed sign is to be erected and, in fact, already has a structure on this site and a permit for a north-facing sign on this structure. The proposed sign meets all DOT requirements except spacing. The structure on which the proposed sign is to be displayed is located on the east side of U.S. 1, 125 feet north of the intersection with University Boulevard. Lamar Dean Outdoor Advertising Company was issued a permit for a 14 by 48 foot sign along the east side of University Boulevard, 150 feet south of the intersection with U.S. 1. This sign faces west. That application for permit (Exhibit 8) shows the type highway to be U.S. 1, a federal-aid primary highway. A sign located on University Boulevard in Jacksonville which was not visible from a federal-aid primary highway would not require a DOT permit. This Lamar structure, which carries a Jack Bush-Toyota South copy, can easily be seen by persons in vehicles travelling on U.S. 1 and it is on the same side of U.S. 1 and within 500 feet of Petitioner's proposed sign. The Department of Transportation's (DOT) inspectors maintain inventories of all permitted signs. The criteria used by all DOT sign inspectors is to log any sign that can be seen and read from the primary highway. Actually, the Jack Bush sign can be seen by both north-and-southbound traffic on U.S. 1 when in the vicinity of University Boulevard but the northbound traffic passes closer to the sign. It is therefore carried by DOT as a south-facing sign.
Findings Of Fact The facts here involved are not in dispute. In 1966 Petitioner leased the property adjacent to Cypress Street in Tampa and erected a structure thereon on the 1-275 3.6 miles west of 1-4, containing signs facing both east and west. By application dated 20 October 1977 (Exhibits 1 and 2) Petitioner applied for permits for these signs. The applications were disapproved because of spacing. Likewise, on 20 October 1977, Petitioner submitted application for a permit for a sign on the 1-4 2.9 miles east of U.S. 41 with a copy of the lease dated 1967. This sign is located in Tampa and the application was also disapproved because of spacing. Both of these locations are zoned commercial and are within the corporate limits of Tampa, Florida. The structure on which the signs shown on Exhibits 1 and 2 were erected was built in 1968 and the sign involved in Exhibit 3 was built in 1967. The signs for which a permit was requested in Exhibits 1 and 2 is located 325 feet north of a permitted structure owned by Tampa Outdoor Advertising, Inc. on the same side of the street and facing in the same direction. The sign for which a permit was requested in Exhibit 3 is 275 feet west of a permitted sign facing the same direction and on the same side of the street which is owned by Foster and Kleiser. No appeal was taken from these disapprovals, but by applications dated June 19, 1979, Petitioner in Exhibits 4, 5 and 6 reapplied for permits for the same signs that had been disapproved in 1977. These applications were also disapproved because of spacing. The I-4 and the I-275 are part of the Interstate Highway system.
Findings Of Fact The Respondent, Harry Moody Signs, owns a sign which was erected in December of 1981 without a state permit. This sign is located 45 feet from the edge of the pavement or curb line of U.S. 27/301/441, and 32 feet from C-434 (Alternate 441) inside the corporate limits of Belleview, in Marion County, Florida. U.S. 27/301/441 is a federal-aid primary highway open to traffic, and C-484 is a non-controlled road. U.S. 27/301/441 is considered to be a north/ south highway; however, it runs almost east and west in Belleview where it intersects C-484, which runs generally northeast and southwest at the point of intersection. The Respondent's sign is located northeast of U.S. 27/301/441, facing a westerly direction, and is visible to traffic from the southbound lane of this controlled highway. The sign in question is approximately 298 feet from a permitted sign (permit no. 947-6) which is also situated on the northeast side of U.S. 27/301/141. Although the Respondent's witness testified that the sign in question is more parallel to the primary highway than perpendicular to it, and that the permitted sign is perpendicular to this highway, both signs are visible from U.S. 27/301/441, and the copy on the Respondent's sign can be read from a distance of 300 to 400 feet away, at least. The Petitioners witness testified that the Respondent's sign stands at an angle of approximately 45 degrees from the permitted sign, and becomes visible at a distance of 929 feet in the southbound lane of U.S. 27/301/441. Additionally, the subject sign first begins to come into view on Alternate 441 (C-484) at a distance of 470 feet. At a distance of 500 feet on Alternate 441 the sign is not visible because a building located close to the road blocks the view. The measurements of distances on Alternate 441 were made by using a calibrated hand wheel on the side of the road. The distances on U.S. 27/301/441 were measured by using a calibrated electric odometer in an automobile. The Department of Transportation permits, regulates and controls signs within city limits that are adjacent to both controlled roads and non-controlled roads when the signs are visible from the main traveled way of the controlled road (federal-aid primary highway). The Respondent applied for a permit after the sign had been erected, and this application was denied because the Respondent's sign was located 298 feet from a permitted sign, causing a spacing violation. The permitted sign is also owned by the Respondent, and this permitted sign is being used as an on- premise sign. However, the state permit is currently in effect, and the Respondent plans to maintain the sign as a permitted sign. The Respondent receives revenues from rental of the permitted sign, and the Respondent pays the property owner for use of the permitted sign's location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the Respondent's sign which is the subject of this proceeding to be in violation of the applicable statutes and rules, and ordering its removal. THIS RECOMMENDED ORDER entered this the 1st day of November, 1983. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1983. COPIES FURNISHED: Gerald S Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Should certain outdoor advertising signs owned by Respondent, Lamar East Florida (Lamar) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Lamar?
Findings Of Fact Lamar is licensed pursuant to Chapter 479, Florida Statutes, to conduct the business of outdoor advertising. The Department regulates the outdoor advertising business in accordance with that law. In 1964, outdoor advertising signs that are the subject of the proceeding were constructed along US Highway 1 in Volusia County, Florida. Subsequently, in 1971, outdoor advertising signs which are the subject of the proceeding were constructed along Interstate 95 in Volusia County, Florida. The signs in both places are subject to permits issued by the Department to Lamar. The signs were legally erected but became nonconforming based upon their spacing in relation to other permitted outdoor advertising signs. The Lamar signs and their spacing are described as follows: Permit No. BN674-55, East of Interstate 95, 3.183 miles north of NEB790079 Hull Road is 881 feet from a permitted sign to the north. Permit No. BJ689-55, East of Interstate 95, 2.588 miles north of NEB790079 Hull Road is 343 feet from a permitted sign to the north. Permit No. BN681-55, East of US Highway 1, 0.088 miles north of Pine Tree Drive is 216 feet from a sign under Permit No. BU855. Permit No. BN682-55, East of US Highway 1, 0.027 miles north of Hull Road is within 332 feet of a permitted sign to the north. Permit No. BV232-55, East of US Highway 1, 0.0129 miles north of Pine Tree Drive is 216 feet from a permitted sign to the north. Each of the Lamar signs is within 660 feet of the first named highway or interstate, within Volusia County, Florida. Lamar owns and maintains the outdoor advertising signs that have been identified. On June 19, 1998, under dry weather conditions, a series of lightening strikes started a wildfire in a remote swampy area. Before the fire ended in July of 1998 its dimensions were extensive. The wildfire burned in Volusia and Flagler counties, Florida, west of Daytona Beach and Ormond Beach, Florida, and extending into the city of Ormond Beach. Eventually, it consumed the Lamar signs that have been described to the extent that the up-right wooden supports of each of the signs were substantially burned. This destruction took place on July 1, 1998. The degree of destruction was within the definition of "destroyed" set out in Rule 14- 10.007(1)(d), Florida Administrative Code. Before their destruction the signs had been lawfully permitted by the Department. Interstate 95 and US Highway 1 had been closed to the public before the Lamar signs were "destroyed." The attempt by Lamar to gain access to the outdoor advertising signs was not successful because of the road closures by government authorities. Following their destruction, Lamar re-erected the structures by reinstalling the signs at the same locations using substantially the same type of materials as had been previously found in the structures being replaced. None of the materials used to re-erect the signs were part of the sign structures immediately before the destruction of the original signs by the wildfire. When re-erected the signs were the same size, shape, and height of the destroyed signs. Lamar does not own the property where the signs are located. Lamar operates pursuant to agreements with property owners by which Lamar has the right to maintain the signs. Upon the expiration or termination of the agreements with the property owners, Lamar may remove all of its sign materials from the properties and absent an agreement no longer maintain the signs. Lamar has no other business interest in the properties where the signs are located. The purpose of the outdoor advertising signs is to lease advertising space to third parties for advertising purposes which generates income to Lamar. Each outdoor advertising sign in question provides that income. The suppression effort directed to the fire was limited due to the remoteness of the swampy area in which the fire originated and a paucity of manpower and equipment. As a consequence, the firefighting effort did not begin in earnest until June 20 or 21, 1998. The fire was combated through efforts of the Florida Department of Agriculture, Division of Forestry and other national, state, and local firefighting organizations. The fuel for the fire, that is, bushes and trees, was dry. The weather conditions were highlighted by low relative humidity and a very high dispersion index. The smoke from the fire rose in the atmosphere and carried its embers from the west to the east. The fire came out of the Hull Cypress Swamp and the embers picked up by the wind crossed fire control lines and continued to spread to the east. Eventually, the two main fingers of the fire burned together on July 2, 1998. Before it was suppressed the fire, known as the Rodeo Road Fire, would consume 61,500 acres. The progress of the fire is depicted in Petitioner's Exhibit No. 1, a map of the area in question, to include the area in which the subject signs were located. Petitioner's Exhibit No. 3 portrays the location of the signs more precisely. More specifically, the conditions in the swamp were extremely dry at the time the fire commenced as evidenced by the available dry fuel load in the swamp, which fuel load would normally be wet. Under wet conditions the fire would either not have burned or would have meandered. Given the dry conditions in the swamp in June 1998, there was a lot more fuel available to burn. East of the swamp the land that was burned was constituted of pastures, range land, and forest lands. Some areas had been subjected to prescribed burning to control available fuel loads in an incidence of wildfire but other areas had not been subjected to prescribed burning before the wildfire. Had property owners in the area affected by the wildfire conducted prescribed burning before that event it would have reduced the fuel load available for incineration. In some places in the advance of the wildfire the fuel loads were heavy, in other places less so, in that the property was constituted of pastures. In addressing the fire, the firefighters' priorities, in turn, included their safety; the safety of the public; the protection of property, to include structures; and finally the protection of resources such as timberland. By their efforts in addressing this incident the firefighters managed to save homes and businesses by creating defensible space around those structures against the on-set of the fire. The area of defensible space necessary is at least 30 feet, which reduces the chance of direct flame impact on the structure. Another technique that was employed to address the consequences of the wildfire was backfiring or imposition of the "black line concept." This is a nationally recognized firefighting technique. It is used when a fire is burning in an area that is inaccessible or has a potential to overrun a fire control line in a setting in which unburned fuel exists between the main fire and the control line. The unburned material is then deliberately burned before the main fire reaches that area to protect the control line from the main fire. The backfire is best employed when the weather conditions are conducive to its use, including wind direction and levels of humidity. During the time that the Rodeo Road Fire took place the use of backfires was not especially successful due to the dryness of the fuels. In the course of the Rodeo Road Fire, Georgia Pacific now known as the Timber Company, used a backfire to protect its property against the northward and eastward progress of the wildfire. The backfire was lit on June 28, 1999. The backfire by the Timber Company did not control the wildfire. It was successful on the west flank of the wildfire but unavailing on the east flank where the backfire by the Timber Company intersected the wildfire and the wildfire continued its eastward progress which had already begun. The setting of the backfire by the Temper Company was an appropriate tactic. Its outcome was inconsequential when considering the progress of the wildfire and its eventual destruction of the signs. Nor is the decision of a California fire crew to use a backfire to protect itself and its equipment found to have meaningful significance in promoting the forward progress of the wildfire to the east where the wildfire would destroy the signs. The backfire lit by the fire crew occurred on July 1, 1998. Backfiring to secure safety is an approved tactic for firefighters in making an independent judgment to protect their lives.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which revokes the sign permits that have been described and requires the removal of those signs within 30 days of the entry of the final order. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings 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 21st day of October, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner owns the sign located on the west side of and adjacent to U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida. The sign advertises a motel owned by Petitioner. The sign is important to the motel's business. The sign is required to have an outdoor advertising sign permit. U.S. Highway 331 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to the sign's erection. Walton County is operating under a duly adopted comprehensive plan. However, the State of Florida has not fully approved such plan and Walton County has not yet entered into a compliance agreement with the State in regards to its comprehensive plan. Pursuant to its comprehensive plan, Walton County utilizes a method of zoning known as "performance zoning", as opposed to the traditional "euclidian zoning". Performance zoning has specific regulations and restrictions for each type of use, and each type of use has to meet certain criteria. In essence, performance zoning allows mixed uses of certain zones within the county. Different areas of the county have different requirements regarding the development of such use in order to safeguard the integrity of the zoning plan. The specific area where the sign is located allows for commercial, industrial and residential use and is permitted by the zoning scheme of Walton County. In a general sense, residential as well as commercial and industrial use is allowed in all of the areas of Walton County north of U.S. Highway 90. This area constitutes approximately one-half of the county. However, zones contained within the areas of Walton County north of U.S. Highway 90 may differ in the circumstances and criteria of the zoning plan under which such uses would be permitted. Even though Walton County was comprehensively zoned, Respondent's previous administration treated Walton County as if it did not have zoning. Therefore, Respondent would have previously permitted the sign in question. However Respondent changed its treatment of Walton County because it had been cited by the Federal Highway Administration for its lax interpretation of zoned and unzoned commercial and industrial areas within the counties. The Federal Highway Administration threatened to withdraw federal highway monies if the Department did not begin to follow the language in its statutes and rules defining zoned and unzoned areas. The clear language of the Respondent's statutes and rules governing the permitting of outdoor advertising signs, as well as the threatened action of the Federal Highway Administration demonstrate the reasonableness of and the factual basis for the Department's change in its interpretation of zoned and unzoned areas within a county. In this case, it is clear that the sign is located in a zoned area and not in an unzoned area. The area in which the sign is located is not zoned commercial or industrial. The area is zoned for mixed use according to the performance zoning utilized by Walton County. Since the sign is not in an area zoned commercial or industrial, the sign is not permittable under Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for a permit to maintain a sign located on the west side of U.S. Highway 331, approximately 5.5 miles north of the intersection of U.S. Highway 331 and U.S. Highway 90 in Walton County, Florida, be denied. DONE and ENTERED this 5th day of June, 1991, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3, 4, 6, 7, and 8 of Petitioner's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 9 and 10 of Petitioner's Proposed Recommended Order are subordinate. The facts contained in paragraph 12 of Petitioner's Proposed Recommended Order were not shown by the evidence. The fact contained in paragraph 11 of Petitioner's Proposed Recommended Order are immaterial. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Recommended Order are adopted in substance, insofar as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Recommended order are subordinate. COPIES FURNISHED: William K. Jennings 119 E. Park Avenue Tallahassee, Florida 32301 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
