The Issue At issue in this proceeding is whether the Department of Transportation's Notice of Denied Application for an outdoor advertising permit at State Road 61 (U.S. 319), 168 feet west of Thomasville Road, Leon County, issued to Lamar of Tallahassee on May 30, 2008, should be upheld pursuant to Section 479.07, Florida Statutes,1/ or whether the sign should be permitted as a nonconforming sign as defined by Section 479.01(14), Florida Statutes.
Findings Of Fact The Department is a state agency empowered to regulate outdoor advertising signs along the interstate and federal-aid primary highway systems of Florida pursuant to Chapter 479, Florida Statutes. Lamar is licensed to engage in the business of outdoor advertising within the state of Florida pursuant to Section 479.04, Florida Statutes. Lamar owns a V-shaped sign located on certain real property at 1940 Thomasville Road in Tallahassee. Thomasville Road is also known as State Road 61. Lamar does not own the real property, but has the right to erect and maintain its sign on the property under a lease that Lamar executed with the landowner in 1998. Lamar's sign was erected in 1998, with the approval of the City of Tallahassee. The sign is located on the southwest corner of the intersection of Thomasville and Betton/Bradford Road, behind the Southern Flooring showroom. The east side of the sign face is within 660 feet of and visible to State Road 61. State Road 61 is a federal-aid highway and thus a "controlled road" subject to the jurisdiction of the Department pursuant to Section 479.07(1), Florida Statutes. Therefore, the east side of the sign requires a permit from the Department. The west side is visible only to Bradford Road and does not require a permit from the Department. On February 10, 2008, Lisa Adams, an outdoor advertising inspector conducting an annual inventory on behalf of the Department, identified the subject sign as an unpermitted sign that is visible from State Road 61. Ms. Adams completed a Department compliance checklist stating that the sign was possibly illegal because it lacked a Department permit and the east side of the sign was visible from State Road 61. On April 22, 2008, the Department issued a notice of violation stating that the sign was illegal and must be removed within 30 days of the date of the notice, pursuant to Section 479.105, Florida Statutes. Lamar did not file a request for hearing in response to the notice of violation, and does not contest the notice of violation in this proceeding. On May 16, 2008, Lamar filed an Application for Outdoor Advertising Permit for the sign. The Department reviewed the application and issued a Notice of Denied Application on May 30, 2008. The application was denied because the sign site does not meet the spacing requirements of Section 479.07(9)(a)2., Florida Statutes, in that it is closer than 1,000 feet from another permitted sign owned by Lamar. The other permitted sign was built in 1979. The 1,000 foot spacing requirement has been in the statute at all times since the 1998 construction of the sign at issue in this proceeding, meaning that it could never have met the spacing requirement of Section 479.07(9)(a)2., Florida Statutes. Myron Laborde was Lamar Advertising Southeast's regional manager in 1998 when the sign was built. His area of authority included Tallahassee. Mr. Laborde testified that in 1998 the view of the sign from State Road 61 was obstructed by several palm trees, some scrub oaks, and a very tall tallow tree. Some of these trees were removed when Southern Flooring took over and remodeled the old Helms Exterminators building at 1940 Thomasville Road about four years ago. Mr. Laborde testified that the sign is now visible from State Road 61 due to the removal of the trees, but only "if you . . .turn your head 90 degrees" while driving north on State Road 61. Loyd Childree has been the vice-president and general manager of Lamar of Tallahassee since 2003. Mr. Childree testified that the renovations to the Helms Exterminators building began some time after March 2005, and that the building's size was nearly doubled to accommodate the Southern Flooring showroom. Mr. Childree testified that a lot of trees were removed during the renovation, including palm trees and a "canopy-type tree" about 25 to 30 feet tall with a full crown similar to that of an oak. Mr. Childree testified that the sign is now visible from State Road 61 due to the removal of the trees. Mr. Childree further stated that Lamar markets the sign to advertisers based on the traffic counts from Bradford Road, not those from State Road 61. Ms. Adams, the inspector who identified the possible illegality of the sign, has worked for the Department's contractor, TBE Group, since August 2004. Her job is to conduct an inventory of permitted signs on controlled roads such as State Road 61 and determine which unpermitted signs are visible from the roadway. Ms. Adams inventoried State Road 61 in 2005, 2006 and 2007 without identifying Lamar's sign as an unpermitted sign visible from the roadway. Ms. Adams testified that her predecessor in the position inventoried State Road 61 every year since Lamar's sign was erected and never identified the sign as one visible from State Road 61. Ms. Adams testified that she might have seen the sign in a previous year but did not identify it as illegal because she believed it had "on-premise" advertising, i.e., it advertised Southern Flooring. With certain restrictions, a sign erected on the premises of a business establishment that bears advertising for that establishment is exempt pursuant to Section 479.16(1), Florida Statutes. Ms. Adams frankly conceded that she was speculating and that her memory was unclear as to whether she had seen and noted this sign in past years. In any event, Lamar's log of advertisers showed that Southern Flooring never advertised on the sign. Lynn Holschuh is the Department's state outdoor advertising administrator, and had held this position since 1992. Ms. Holschuh testified that State Road 61 has been inventoried by an outdoor advertising inspector every year since Lamar's sign was erected in 1998. None of the inspectors noted the visibility or possible illegality of the sign until Ms. Adams noted the sign on February 12, 2008. Ms. Holschuh lives in Tallahassee and has driven on State Road 61 hundreds of times over the years. In her deposition, she testified that she believed the sign was not visible when it was built, and only became visible from State Road 61 when a third party removed the obstructing trees. The testimony of Mr. Laborde, Mr. Childree, and Ms. Holschuh was credible and uncontroverted as to the history of the sign. It is found that the sign was not visible from State Road 61 when it was erected in 1998, but that it became visible from State Road 61 when trees were removed by the landowner during renovations to the old Helms Exterminators building at some point after March 2005. Lamar's sign, now visible from State Road 61, is subject to the Department's jurisdiction pursuant to Section 479.01, Florida Statutes, because State Road 61, as a federal- aid primary highway, is a "controlled road" under the statute. A sign visible from a controlled road must carry a Department permit. Lamar contends that the facts of this case establish that its sign meets the definition of a "nonconforming sign" set forth in Section 479.01(14), Florida Statutes: "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. Lamar's sign was not visible from State Road 61 in 1998 and therefore was "lawfully erected" in terms of the Department's licensing requirements. Lamar contends that the removal of trees by a third party constituted "changed conditions" that rendered the sign out of compliance with state law, and that the sign is therefore a nonconforming sign under Section 479.01(14), Florida Statutes. The Legislature has provided no definition of the term "changed conditions," and the Department has no rule to provide interpretive guidance to the words of the statute. On September 17, 2008, Lamar filed a motion for leave to amend its petition for hearing in this case to challenge the Department's alleged interpretation of the phrase "due to changed conditions" as an unadopted rule. In particular, Lamar alleged that the Department was applying an unadopted rule limiting "changed conditions" to those initiated by a government agency. On September 19, 2008, the Department filed an unopposed motion to remand the case to the agency. The motion was granted on September 22, 2008. In the Florida Administrative Weekly dated November 26, 2008 (vol. 34, no. 48, p. 6228), the Department published a Notice of Development of Proposed Rule, with the following preliminary text of an amendment to Florida Administrative Code Rule 14-10.006: 14-10.006 Additional Permitting Criteria. Each application for an outdoor advertising sign permit shall meet the requirements of Sections 479.07(9) and 479.11, F.S. In addition, an application must comply with the requirements of the agreement between the state and the United States Department of Transportation referenced in Section 479.02(1), F.S., which have not been duplicated in Sections 479.07(9) and 479.11, F.S., or superseded by stricter provisions in those statutes. The requirements are: through (8) No change. (9) The term "changed conditions" referenced in Section 479.01(14), F.S., defining nonconforming signs, means only the actions of a governmental entity, as defined by Section 11.45, F.S., which includes for example: Rezoning of a commercial area, reclassifying a secondary highway as a primary highway, or altering a highway's configuration causing a preexisting sign to become subject to the Department's jurisdiction. (Emphasis added) Ms. Holschuh testified that this draft rule language was written in direct response to Lamar's allegation that the Department's denial of its application was based on an unadopted rule. On December 16, 2008, the Department held a workshop on the draft rule. At the workshop, the Florida Outdoor Advertising Association ("FOAA") submitted the following suggested draft language for subsection (9) of Florida Administrative Code Rule 14-10.006: (9) The term "changed conditions" referenced in Section 479.01(14), F.S., defining nonconforming signs, means, and shall include, any of the following: An action taken by a governmental entity, as defined by Section 11.45, F.S., such as the rezoning of a parcel of property fro commercial to noncommercial, reclassifying a secondary highway to a primary highway, altering a highway's configuration, or the taking of any other action within the powers of such governmental entity which thereby causes a preexisting sign to become subject to the Department's jurisdiction; The action of a third party, who is not the owner of a preexisting sign, relating to modifications to the topography, vegetation, buildings or other physical characteristics of the property upon which the sign is located, or the property surrounding the sign, which thereby causes a preexisting sign to become subject to the Department's jurisdiction. an act of God which thereby causes a preexisting sign to become subject to the Department's jurisdiction. The Department rejected the FOAA's proposed language, and ultimately abandoned the effort to adopt a rule defining the term "changed conditions." On September 18, 2009, the Department filed a motion with DOAH to reopen this case and proceed to a fact-finding hearing regarding its proposed rejection of Lamar's application. In her deposition, Ms. Holschuh testified that the rulemaking effort was abandoned because the language proposed by the FOAA made it clear that it would be "nearly impossible" to arrive at a definition that would cover "every situation that might arise for when an existing sign might suddenly become visible." Ms. Holschuh testified in deposition that it is now the Department's policy to review these matters on a case-by- case basis. However, she also testified that the Department, as a matter of "policy," continues to limit its consideration of "changed conditions" to actions taken by a governmental entity. The Department bases this limitation on the examples provided by 23 C.F.R. § 750.707(b), defining "nonconforming signs" for purposes of the Federal Highway Administration: A nonconforming sign is a sign which was lawfully erected but does not comply with the provisions of State law or State regulations passed at a later date or later fails to comply with State law or State regulations due to changed conditions. Changed conditions include, for example, signs lawfully in existence in commercial areas which at a later date become noncommercial, or signs lawfully erected on a secondary highway later classified as a primary highway. Ms. Holschuh stated that the Department's policy was applied to Lamar in the instant case, and would continue to be applied in the future unless some "extraordinary circumstance" in a specific case led the Department to revisit the policy. At the final hearing, Ms. Holschuh backed away somewhat from her flat statement that the Department's "policy" was to limit consideration of changed conditions to those caused by government action. She stated that FOAA's proposed rule language caused the Department to reconsider its position that governmental action should be the exclusive reason for granting a permit for "changed conditions," and testified that the Department will consider other circumstances in its case-by-case review of permit applications. Ms. Holschuh testified that, under the facts presented in this case, the Department would deny the permit because there is DOAH case law on point for the proposition that tree removal does not constitute "changed conditions," and because broadening the definition of "changed conditions" to include the situation presented by this case would open up the process to abuse. Ms. Holschuh testified, at more than one point in the proceeding, that the Department would have very likely granted the permit had the trees been removed by the Department rather than the private landowner. She gave no indication that Section 479.105(1)(e), Florida Statutes, or any other statute would prevent the Department from granting the permit for Lamar's nonconforming sign, should the Department find that the sign fell into nonconformity due to "changed conditions." The DOAH case law cited by Ms. Holschuh is Lamar of Tallahassee v. Department of Transportation, Case Nos. 08-0660 and 08-0661 (DOAH September 15, 2008), discussed more fully in the Conclusions of Law below. Ms. Holschuh testified that Lamar's sign is not located in a Department right-of-way and is not a hazard to the public in its current location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation denying the application of Lamar of Tallahassee for a state sign permit for a location described as State Road 61 (U.S. 319), 168 feet west of Thomasville Road, in Leon County, Florida (Application Number 57155). DONE AND ENTERED this 7th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 June, 2010.
The Issue Whether an application for an outdoor advertising permit for a sign in Santa Rosa County should be granted or denied.
Findings Of Fact The Department of Transportation is the state agency responsible for the regulation of outdoor advertising signs that are located on all federal-aid primary highways. U.S. Highway 90 (U.S. 90) is a federal-aid primary highway. A permit is required prior to erecting an outdoor advertising sign on all federal-aid primary highways. Southeast- SD, LLC (Southeast) filed an application for an outdoor advertising permit, application # 57549/57550 (the application) on June 29, 2009. Southeast's proposed sign structure meets the size and height requirements of section 479.07. The parcel was commercially zoned in accordance with the provisions of section 479.11, Florida Statutes. Southeast's application site is located on U.S. 90 at milepost 3.118, approximately 550 feet east of the centerline of Woodbine Road. The Department denied Southeast's application and issued a Notice of Denied Outdoor Application (initial denial) on July 29, 2009. The reason stated in the initial denial was: Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP). [s. 479.07(9)(a),1.,& 2. F.S.] In conflict with permitted sign(s), tag#(s): CC479. Held by: Bill Salter Advertising, Inc. Bill Salter Advertising, Inc. (Salter's) sign with tag CC479 was located on U.S. 90 less than 500 feet from the application site. Permit CC479 was the subject of a Department revocation proceeding.2/ On March 8, 2010, the Department issued a Clerk's Order of Dismissal on the challenge to the revocation of CC479. Thus, the revocation of the conflicting sign, CC479, was final on March 8, 2010. On August 16, 2010, the Department issued an Amended Notice of Denied Application (Amended Notice). In the Amended Notice, the Department gave a different reason for the denial. The reason given in the Amended Denial concerned a different Salter tag: Sign does not meet spacing requirements (1500' for interstates, 1000' for EAP). [s. 470.07(9)(a),1., & 2. FS] In conflict with permitted sign(s): CF793. Held by: Bill Salter Advertising, Inc." CF793 was originally permitted in 1978. At that time, an application for a sign permit was reviewed and notated by the Department, and became the actual permit. The application for CF793 contains information that is type-written on the application form, presumably by the applicant, Salter. In the portion of the application form stating "DOT DESCRIPTION OF SIGN LOCATION (DOT USE ONLY)" the following is hand-written: "Sect. 59 W- 39.95 Miles W-SR 85." Most of the application/permit was filled out by the applicant, and part of it was filled out by the Department. In 1996, the Florida Legislature amended section 479.02, directing the Department to inventory and determine the location of all signs on the state, interstate, and federal-aid primary highway systems. The Department conducted the inventory and, upon completion, sent the database information to each sign owner, giving each owner an opportunity to challenge the accuracy of the results. Salter did not file such a challenge regarding CF793. As of July 30, 2009 (the date of the initial denial), tag CF793 was shown at milepost 13.205 on U.S. 90, in a location approximately 13 miles away from the application site in the Department's database created pursuant to section 479.02(8). Tag CF793 was physically located 13 miles away from its originally permitted location. The Department acknowledges that tag CF793 was not valid in its location 13 miles away from its current location, where it was located from at least 1998 to 2010. The database reflected milepost 13.205 as the location for CF793 from 1998 until 2010. In 2004, the Department sent Salter a Notice of Non- Compliance demanding that Salter post tag CF793 at milepost 13.205. In October 2009, the Department received a letter from Salter regarding moving CF793 to the location specified in the 1978 permit. At this point, the Department investigated the original application and discovered a "huge discrepancy" between the database location and the permit location in the Department's files. The Department has no documentation regarding how tag CF793 came to be located at milepost 13.205 since the 1998 inventory. The Department decided that its database was incorrect and that it needed to be corrected. On February 1, 2010, the Department changed its database to reflect the location for CF793 as milepost 2.993 on U.S. 90. Salter posted the tag for CF793 at its current location sometime after March 22, 2010 and prior to May 3, 2010. Once Salter placed the tag for CF793, the database was changed again to reflect the physical tag location at milepost 2.950 on U.S. 90, the "current location." The Department hired Cardno TBE, an engineering firm, to conduct field work. An inspector performed field measurements on May 3, 2010, using the wheel and laser methods for field measurement. The inspector identified the stake that was in the ground on Southeast's proposed sign site. He measured along the edge of the pavement on U.S. 90 from the location marked by Southeast to the new location of Salter's CF793 tag. The inspector determined that the distance between the proposed site and the nearest permitted sign, CF793, is 890 feet. Based upon these findings, the Department then determined that Southeast's proposed sign did not meet the 1000- foot spacing requirement. By letter dated May 27, 2010, the Department notified Salter that the location of CF793 was "nonconforming" and that pursuant to Florida Administrative Code Rule 14-10.007, a completed sign must be erected within 270 days or the permit would be revoked. No sign has been built, and the permit has not been revoked. Moreover, it appears that a sign will never be built, as the Department is in possession of correspondence from Santa Rosa County to Salter indicating that a sign cannot be constructed at the current location of tag CF793 due to conflict with several local ordinances. Also on May 27, 2010, the Department sent a letter to Southeast stating that CF793 "now presents a spacing conflict" with Southeast's application location. The letter further states that the Department had advised Salter that a completed sign must be erected within 270 days and that if no sign is erected within that time frame, the permit would be revoked. On August 16, 2010, three months later, the Department amended its denial as set forth above in paragraph 8. Just prior to the hearing, the Department again sent the inspector to conduct another field measurement. This time, the inspector relied upon information regarding the location of the sign from the original application/permit that was provided by the applicant (Salter) in 1978. That is, the inspector measured from a location described by the applicant in the original permit application, then measured the distance from the location to Southeast's proposed site, and determined the distance to be 884 feet. In making these measurements, the inspector assumed that the nearest intersection in 1978 was in the same location as today, that the original measurer started the measurement from the centerline of that intersection, and that the distance from the nearest intersection indicated by Salter on the original application/permit was measured with the same accuracy as a hand-wheel or laser.3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Transportation enter a final order approving Southeast's sign permit application. DONE AND ENTERED this 21st day of February, 2011, in Tallahassee, Leon County, Florida. S Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2011.
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
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that respondent, Department of Transportation, enter a final order denying the application of petitioner, Lamar Advertising Company, for a sign permit. RECOMMENDED this 21st day of March, 1985, at Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1985.
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 The Respondent is the State of Florida's regulatory agency for advertising along state and federal highways. On January 1, 1995, Petitioner was the holder of three State of Florida outdoor advertising sign permits (among others): AU204-35, BH947-25 and BH948- 25. The sign covered by Permit No. AU204-35 (hereinafter "Sign A") was a wooden billboard located approximately 100 yards east of a weight station on Interstate 4. As trucks leave the weight station heading east, the sign was to their right. The sign covered by Permits No. BH948-25 and BH947-25 (hereinafter "Sign B) is an electrified high-rise sign located at the interchange of Interstate 4 and State Road 39. The sign is on the south side of the interchange. The signs at issue both serviced a truck stop on the north side of the interchange at Interstate 4 and State Road 39. Sign A also serviced a fueling operation at Interstate 4 and Park Road. About 27,000 outdoor advertising permits are listed within the Respondent's outdoor advertising system. Outdoor advertising sign permit renewal fees are due on January 15 of each year for all State of Florida outdoor advertising sign permits. If a permit holder's renewal fees are not received by the Respondent on or before January 15 of any given year, its outdoor advertising sign permits expire. By November 1 of each year, the Respondent sends a billing statement to every permit holder notifying them of the fees which will become due in January of the following year. Petitioner paid its permit renewal fees in 1994. In November of 1994, the Respondent sent to Petitioner a billing statement listing the fees which would become due on January 15, 1995, for its outdoor advertising sign permits. This billing statement included, among others, Petitioner's permits numbered AU204-35, BH947-25 and BH948-25. (Hereinafter referred to collectively as "Permits"). On January 15, 1995, permit renewal fees for Petitioner's Permits became due. If an outdoor advertising sign permit holder has not paid its permit renewal fees by January 15 of a given year, then by February 1 of that year it is the Respondent's practice to mail to the holder a notice of violation for nonpayment. The Respondent sends an average of 350 notices of violation each year. The notice of violation is sent certified mail, return receipt requested, and the article number on the certified mail card is documented on the bottom of the notice of violation. The notice of violation has a copy of the affected permits attached to it indicating the permits to which it applies. The notice is folded and inserted into a window envelope so that the address shows through the window. The envelope is then sealed and a certified mail card with the vendor's name on it is attached The notice of violation notifies the permit holder that the Respondent has not received its permit renewal fees and that the listed permits will expire if the holder does not submit its permit fees, including a ten (10) percent delinquent fee, within thirty (30) days. Petitioner's permit renewal fees were not received by January 15, 1995. On February 1, 1995, the Respondent mailed to Petitioner by certified mail, return receipt requested, a Notice of Violation and Order To Show Cause- Non-payment. (Hereinafter referred to as "Notice of Violation"). The Respondent's Notice of Violation was mailed to Petitioner at Post Office Box 945140, Maitland, Florida 32751. Petitioner's correct mailing address is Post Office Box 945140, Maitland, Florida 32795-5140. The article number on the certified mail card is documented on the bottom of the Notice of Violation. The Respondent's Notice of Violation had a copy of the affected permits attached to it indicating the permits to which it applied. The Respondent's Notice of Violation notified Petitioner that the Respondent had not received its permit renewal fees for its Permits and that they would permanently expire if Petitioner did not submit its permit fees, including a ten (10) percent delinquent fee, within thirty (30) days. The Respondent's Notice of Violation notified Petitioner that failure to pay its permit fees within the thirty (30) day period would subject its signs to immediate removal by the Respondent; and that Petitioner had a right to request an administrative hearing within thirty (30) days of the date of the Notice. Petitioner did not pay its permit fees or request an administrative hearing within the time limit set out in the Respondent's Notice of Violation. On February 23, 1995, Respondent received the 1995 renewal fees for an account identified as "Texaco Star Enterprise," which covers other permits, and that account is in good standing. The Respondent returned the check submitted by Petitioner on August 29, 1995 for the Star Enterprise (Petitioner) account. Star Enterprise is an organization which refines, distributes and markets petroleum products under the Texaco brand throughout twenty-six states. In 1994 and 1995 Star Enterprise owned approximately 400 locations in the State of Florida which were operated for the purpose of selling Texaco products to the general public. Star Enterprise operates some retail locations through its own salaried employees. These salaried operated retail outlets are known by the acronym "SORO." The SORO group is responsible for maintenance on SORO locations. Star Enterprise also owns retail locations which are operated by third parties under a lease. Star Enterprise presently oversees the day to day operations of its organization in the State of Florida from its office located at 650 South North Lake Boulevard, Suite 450, Altamonte Springs, Florida. In approximately 1993, Star Enterprise began to downsize and reorganize its operations. In December 1993, Star Enterprise moved its regional office to its current location in Altamonte Springs from 555 Winderly Place, Maitland, Florida. Whereas the Maitland office had operated with approximately 130 employees, only 34 employees moved to the Altamonte Springs location. Downsizing has continued, with approximately 25 persons still employed in the Altamonte Springs office. Since moving to its Altamonte Springs office, Star Enterprise has received mail at its physical location on North Lake Boulevard and at Post Office Box 945140 at the Maitland, Florida Post Office. Mail is delivered to the North Lake Boulevard location by the postal service and through various courier services. On weekdays mail is retrieved at the Maitland Post Office by a courier service and delivered by courier to Star Enterprise at the North Lake Boulevard office. Budget Couriers of Florida, Inc. (hereinafter "Budget Couriers"), is a delivery service operating throughout the Orlando metropolitan area. Budget Couriers' business is retrieving packages and mail from the Post Office and delivering them to its clients. Star Enterprise is a client of Budget Couriers. Budget Couriers picks up the mail for Petitioner at the Maitland Post Office. The mail is not retrieved from a box with a key, but is picked up at the back door area in plastic bins. A post office employee brings the mail bin to the courier at the dock and he signs for it. Budget Courier picks up mail at the location for several clients. Each one has separate bins for their mail. Budget Couriers acts in the capacity of Petitioner's agent for purposes of the retrieval and delivery of mail sent to Petitioner at its Post Office Box 945140 in Maitland, Florida. When an article of certified mail is sent to one of Budget Couriers' clients, Budget Couriers' employee signs for the article on behalf of that client. Petitioner authorizes Budget Couriers to sign for and retrieve certified mail on behalf of Star Enterprise. The certified mail is then placed in the client's bin. After retrieving the mail bins at the post office, the courier delivers the mail to each client, including Petitioner. When the mail is delivered the courier obtains a receipt for the contents of the entire bin. The receipt does not identify specific pieces of mail, including certified mail; nor is an inventory of the mail provided. When the Respondent prepares a notice of violation to be sent to a delinquent permit holder, the article number on the certified return receipt card is documented on the bottom of the notice of violation. The Respondent's Notice of Violation was received by Petitioner at its Post Office Box 945140 in Maitland, Florida, on February 6, 1995. The certified return receipt accompanying the Respondent's Notice of Violation was signed on behalf of Petitioner by an employee of Budget Couriers, Billy Hadd. The article number on the certified return receipt accompanying the Respondent's Notice of Violation corresponds to the number documented on the bottom of the Respondent's Notice of Violation. Petitioner acknowledged its receipt of the mail delivered by Budget Couriers on February 1, 2, 3, 6, 7, 8 and 9, 1995. Star Enterprise elected to have its mail retrieved from the Post Office by a contract courier. Petitioner did not receive an inventory of the individual articles of mail retrieved from its Post Office box and delivered to it by Budget Couriers. Petitioner received the Notice of Violation on February 6, 1995. The Respondent did not receive any payment in response to the Notice of Violation sent to Petitioner regarding its delinquent permit renewal fees. Petitioner had prior knowledge of the outdoor advertising sign permit renewal process. Petitioner has been renewing its outdoor advertising sign permits as far back as 1989. The action taken by the Respondent regarding Petitioner's Permits was consistent with the action it takes regarding any other outdoor advertising sign permit holder which fails to pay its outdoor advertising sign permit renewal fees in response to a notice of violation issued by the Respondent. It is the policy of Respondent not to accept late payments for expired outdoor advertising sign permits. Respondent believes that acceptance of late payments for expired outdoor advertising sign permits would violate the agreement between the Governor and the U. S. Department of Transportation. ( Hereinafter referred to as "Agreement"). Violation of the Agreement could possibly subject the State of Florida to penalties equal to ten (10) percent of the Federal participation in transportation projects within the State of Florida, which at this time would amount to a penalty of approximately sixty (60) million dollars per year. One of the key elements of the outdoor advertising regulatory process is to treat all permittees the same. Petitioner received the same treatment from the Respondent as would any other permittee under the same circumstances. Outdoor advertising sign permit renewal is a yearly occurrence and Petitioner was no stranger to the permit renewal process including the procedure for delinquent permit renewal fee payments. Petitioner failed to pay its outdoor advertising sign permit renewal fees on two other occasions in the past. On both of these occasions Petitioner received the Respondent's notice of violation at the same address as the violation at issue. On these past occasions Petitioner paid its renewal fees within the reinstatement period and its permits were reinstated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Petitioner's outdoor advertising sign permits have permanently expired. RECOMMENDED that a Final Order be entered determining that the request for hearing filed by Petitioner was not timely filed; and denying its request to reinstate two outdoor advertising sign permits. DONE and ENTERED this 6th day of September, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 6th day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0340T To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8 (in part), 11 (in part), 12, 17, 18 (in part), 20, 25, 26, 27, 28, 29, 30, 31, 32, 33 (in part), 34, 35 (in part), 36 (in part), 37 (in part), 39 (in part), 40 (in part), 46 (in part), 47, 48 (in part), 70 (in Preliminary Statement), 71 (Preliminary Statement in part), 74. Rejected as subsumed or irrelevant and immaterial: paragraphs 6, 8 (in part), 9, 10, 11 (in part), 13, 14, 15, 16, 18 (in part), 19, 21, 22, 23, 24, 33 (in part), 35 (in part), 36 (in part), 37 (in part), 38, 39 (in part), 40 (in part), 41, 42, 43, 44, 45, 45, 46 (in part), 48 (in part), 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71 (in part), 72, 73, 75 (conclusion), 76, 77 (conclusion of law). Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (in part), 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,22, 25, 26 (in part), 27, 28, 29, and 30. Rejected as against the greater weight of evidence: paragraph 10 (in part), 12. Rejected as subsumed or irrelevant and immaterial: paragraphs 23, 24, and 26 (in part). COPIES FURNISHED: Elizabeth C Wheeler, Esquire Johnson and Bussey, P.A. Post Office Box 531086 Orlando, Florida 32853-1086 Murray M. Wadsworth, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben W. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Petitioner, National Advertising Company, is entitled to the issuance of a vegetation control permit for its south-facing advertising billboard located West of Interstate I-75, in Lee County, Florida.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system, including interstate highways. Construction of Interstate 75 in the relevant area of Lee County, Florida, was completed and accepted by the DOT on or about February 22, 1979. On March 10, 1980, the Florida Department of Transportation issued an outdoor advertising sign permit to Florida Outdoor for a billboard to be located adjacent to I-75, .25 miles north of the intersection of I-75 and State Road 82 in Lee County. The billboard was constructed and the billboard structure, together with the sign permit, was acquired by Petitioner in May of 1982. Petitioner holds a current valid sign permit, DOT sign permit number AB-118-10, for the above sign. Said sign is a non-conforming sign under the Rules of the DOT and cannot be moved or raised. Petitioner submitted a properly completed application for a vegetation control permit to the DOT on February 4, 1991. Petitioner's sign board does not have five hundred feet of exposure along the interstate highway within a one thousand foot window and is therefore a screened board under the provisions of the DOT's rules. Following review of the application by the District Roadway Maintenance Engineer, it was determined that the area covered by the vegetation control permit was within an area specifically preserved during the construction process which prohibits any pruning, trimming, or removal of trees, shrubs, or vegetation in that area. Based on that determination, the permit was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the vegetation control permit requested by National Advertising Company on I-75 (S.R. 93) in Lee County, Florida, should be GRANTED, pursuant to the provisions of Chapter 14-13, Florida Administrative Code. DONE AND ENTERED this 30th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th December, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. National Advertising's Proposed Findings of Fact: Accepted in substance: paragraphs 1,2,3,4 (in part) 5,6 (in part), 8,10. Rejected as irrelevant or immaterial: paragraph 4 (in part-coverage in Preliminary Statement), 6 (in part), 7,9,11. Rejected as a conclusion of law: paragraph 12,13. Department of Transportation's Proposed Findings of Fact: Accepted in substance; Stipulation of Facts; paragraphs 1 (in part), 2 (in part). Rejected as conclusions of law: paragraphs 1 (in part), 2 (in part). Copies furnished: Gerald S. Livingston, Esquire Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
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.
Findings Of Fact The Department of Transportation cited National Advertising Company for the maintenance of eight (8) outdoor advertising signs without current permit tags in violation of spacing requirements. The subject signs are listed on Exhibit 1 attached hereto and are owned and maintained by Respondent. The subject signs are located along I-95 in the vicinity of Orlando, Florida. The subject signs had valid county tags for 1972. The subject signs had no tags for 1973, but by agreement between Respondent and Petitioner this lack of 1973 tags has been disregarded. In the fall of 1974 Petitioner issued Respondent county tags for the subject signs. When affixing these tags to the signs Respondent discovered that there was some confusion over whether the signs were in the county or were in the city limits of Orlando. Respondent went to the City offices and asked if the signs were in the city limits and was told that the City did not know. Respondent then went to the County offices and was told that the signs were in the city. Respondent them communicated this information to Mr. Kennedy, an employee of the Department of Transportation in the DeLand office who agreed that the tags would not be put on the subject signs unless it was determined at some later date that the signs were actually located in the county and not in the city. At the time of this agreement Respondent was in possession of the 1974 county tags and was prepared to affix then to the subject signs. Because of the agreement however, the tags were not affixed to the subject signs. Confusion persisted over the question of whether the signs were located inside or outside of the city limits. In the fall of 1975, Respondent submitted a permit application for annual renewal for the subject signs requesting city tags. Petitioner granted this application and in late 1975 issued city tags for the subject signs. These tags have since been affixed to the subject signs and remain there at the time of this hearing. Representatives of Petitioner visited the Orange County Zoning Department on February 11, 1976 in attempt to determine whether the subject signs were located in the county or in the city. Petitioner's representatives determined that the signs were located in the county. During 1974 and 1975 there was a great deal of confusion on the part of both Petitioner and Respondent concerning the question of whether the subject signs were in Orange County or in the City of Orlando. Respondent, in good faith, diligently attempted to resolve the confusion. It appears however, that Petitioner and Respondent were not able to resolve the confusion until early 1976 and shortly before this hearing. Respondent made no application for 1976 permits for the subject signs before May 13, 1976.
The Issue The issue in these causes is whether denial of Petitioners' outdoor advertising sign site permit applications by Respondent were correctly determined under Subsection 479.111(2), Florida Statutes (2003), on the basis that the sign sites were unzoned commercial/industrial areas; and on the basis that within attending factual circumstances, the sign site did not qualify as unzoned commercial/industrial areas as defined in Subsection 479.01(23), Florida Statutes (2003).
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Sections 120.569 and 120.57, Florida Statutes (2003); and the entire record of this proceeding, the following relevant and material findings of fact are determined: Petitioner, Tropical Landholdings, a Florida Corporation, was created in 1998 and purchased approximately 700 to 800 acres of land comprised of residential multi-family and commercial properties along Interstate 75 (I-75) in Punta Gorda, Florida. On September 8, 2003, Petitioner, Crown Advertising, Inc., of Belleview, Florida, submitted three outdoor advertising sign site permit applications to the Department for review. On September 23, 2003, the Department denied the three outdoor advertising sign site permit applications for the following reasons: (1) the sign sites were not permitted under the local land use designation of site (§ 479.111(2), Fla. Stat. (2003)); and (2) the sign sites did not qualify as unzoned commercial/industrial area. § 479.01, Fla. Stat. (2003). The sign site permit application forms used by Petitioners in these causes were composed and authorized by the Department. The form required the applicant to obtain and provide information regarding the proposed sign site, what is proposed to be constructed on the site, and where the proposed construction is to occur. The sign site permit applications also required the applicant to secure information from the appropriate local zoning official of the future land use designation and the current zoning of the proposed sites enacted by the local government's Comprehensive Plan and land use development regulations. This form required information from the local government as to whether the applicant is or is not in compliance with all adopted local ordinances. Permission to erect an outdoor sign structure on the identified sign site is subject to approval by the City. Petitioners complied with the requested information. The local government, the City of North Port, approved the three sign site permit applications in question and granted Petitioners permission to erect three outdoor billboard signs. This local grant of approval was then subjected to concurring approval by the Department. After receiving the sign site permits that were approved by the City, the Department engaged the services of a consultant to conduct on-site review and identification of: (1) the local government's designation for each proposed sign site; (2) the permitted uses of each proposed sign site (local drainage facilities, pipeline corridors, underground communication cables, electric transmission lines, and outdoor advertising signs); and (3) a review of adjacent and surrounding parcels. The consultant reported to the Department the factual circumstances attendant the three locally approved sign sites. It should be noted that the consultant did not render an opinion regarding the Department's approval or denial of the sign site permit applications. The sign sites in question were zoned under the local "land use designation" of the City of North Port's Ordinance 02-46, Section 53.146 (Ordinance 02-46), as a "utility industrial corridor." The zoned land was composed of strips of land measuring 25 to 70 feet in width on the west side and 160 to 170 feet in width on the east side. The "permitted governmental uses" of a parcel zoned as a "utility industrial corridor," included such uses as underground communication cables, electric transmission lines, and outdoor advertising signs. Ordinance 02-46, under the title "Prohibited Uses and Structures," specifically prohibits "all commercial and industrial uses." Based upon a review of all information provided by Petitioners, the local government, and its consultant, the Department first determined the three sign sites on which the subject signs were to be erected and located, prohibited commercial or industrial uses. The Department then determined, based upon an analysis of the materials provided by its consultant and the City of North Port, the three sign sites in question had not been zoned for commercial or industrial uses as a part of the local government's comprehensive zoning plan. Based upon (1) the prohibition of commercial or industrial uses and (2) no commercial or industrial zoning of the sign sites, the Department concluded these three sign sites were zoned "primarily to permit outdoor advertising," a prohibited function. The denials were required. Under the local land use designation of Ordinance 02-46, the City of North Port's permitted uses included local drainage facilities and a pipeline corridor. Under governmental uses designation of Ordinance 02-46, the City of North Port's permitted uses included underground communication cables, electric transmission lines, and outdoor advertising. However, Ordinance 02-46 specifically prohibits all commercial and industrial uses under the governmental uses designation. When questioned by Petitioners, Ms. Holschuh testified "that the Department's intent was to allow [sign] permits whenever possible and never prohibit the installation of billboards." From this specific statement of testimony, Petitioners argued that "implementing the intent the Department must look beyond the labels of the zoning and look at the actual primary uses allowed under those designations." (Emphasis added.) Ms. Holschuh disagreed with Petitioners' characterization of the Department's procedures and convincingly maintained that the Department based its denials on "sign site zoning" and factors considered for determining an "unzoned commercial/industrial area" as defined by statute. Continuing with its argument, Petitioners conclude "[T]he department . . . appears to be in conflict with Judge Barbara Staros' decision of February 16, 2004, in a rule challenge proceeding, where she analyzed the Sign Permit procedure under Section 479.07, Florida Statutes." In her Final Order, Administrative Law Judge Barbara Staros made a Finding of Fact in paragraph 30, stating: Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan. Page 13. The procedures followed by the Department in this proceeding complied with Judge Staros Finding of Fact in paragraph 31, where she wrote: The Department uses the application and the information contained therein to determine whether a proposed sign location falls within the definition of a "commercial or industrial zone." If it does, [fall within] then the Department determines whether those designations were adopted as part of the local government's comprehensive planning efforts or were "primarily" adopted to permit outdoor advertising signs on that location. Page 30. Based upon it's receipt, review, and analysis of the specific facts provided by all parties of interest, the Department determined the sites where the signs were to be erected prohibited commercial or industrial use. The Department factually determined that no local zoning identified the sites as commercial or industrial. The Department concluded correctly and in accord with Florida Administrative Code Rule 14-10.0052 that these three sign sites were zoned by the City of North Port, the local governmental entity, "primarily to permit outdoor advertising" contrary to sign site permit procedures under Section 479.07, Florida Statutes (2003). Based upon the evidence of record and considering the size of the sign site, the local government's zoning of the site, designated uses of the site, and prohibited uses on the site, denial of the sign applications was correctly determined pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052. Based on the testimonies of Ms. Holschuh and James Duff, who testified regarding his ownership, property taxes paid, and the investors' inability to use the property in question to their economic advantage, Petitioners failed to carry the burden of producing a preponderance of credible evidence to establish that the Department incorrectly and/or wrongfully denied Petitioners' applications for three sign site permits pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052.
