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.
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
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 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 Whether the Petitioner's outdoor advertising sign located at 1.106 miles south of State Road 50, on State Road 91, is an illegally erected sign pursuant to the Notice of Violation No. 10B-DM-1997-125-NF. Whether Petitioner's outdoor advertising structure is eligible for a permit pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On June 26, 1997, Respondent's Inspector issued Notice of Violation No. 10B-DM-1997-125-NF for an outdoor advertising sign located 1.106 miles south of State Road 50, on State Road 91, in Orange County, Florida. The subject sign is located within 660 feet of the right-of-way of State Road 91, outside any city limits. On June 26, 1997, the above-referenced sign did not have a current valid permit. On June 26, 1997, the above-referenced sign was not an on-premises sign. Charles Tucker is the owner of the subject sign and the property on which it is located. Charles Tucker has never had a valid State Outdoor Advertising Permit for the subject sign. Charles Tucker has not applied for a permit under Section 479.105, Florida Statutes. Sometime in the late 1960's, Winter Garden Inn constructed the subject sign on property owned by Charles Tucker. The Inn received permits for said sign from Respondent for each year until 1973, and displayed advertising signage thereon. Charles Tucker has owned the subject sign since 1974. In 1981, Tucker leased advertising copy on the sign to the R.C. Dunn Oil Company. In 1983, Charles Tucker painted out the advertising copy, after it had remained on the subject sign for two years (from April 1981 through April 1983). However, the advertising copy remained visible for several years thereafter. On May 19, 1997, Charles Tucker entered into Lease Agreement with Petitioner, for the purpose of maintaining and operating the sign. Respondent agreed to be agent of record for all matters relating to the sign and signage. Petitioner has not properly completed an application for a permit under Section 479.105, Florida Statutes. There has been a seven-year period of time during which the subject sign displayed advertising copy. No structural changes have been undertaken on the subject sign since it was constructed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary enter a final order which finds that the Respondent properly issued the Notice of Violation, but that Petitioner, Universal Outdoor, Inc., is entitled to a State Outdoor Advertising Permit, under the provisions of Section 479.105(1)(e), Florida Statutes. Upon proper application in accordance with this chapter within a reasonable period of time, payment of a penalty fee of $300.00 and all pertinent fees required by this chapter, including annual permit renewal fees payable from 1974 to the present, a permit should be issued. DONE AND ORDERED this 6th day of March, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Mark Gamble Real Estate Representative Universal Outdoor, Inc. 5333 Old Winter Garden Road Orlando, Florida 32811 Thomas F. Barry, Secretary Attention: Diedre Grubbs 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner's predecessor in interest leased property along the I-275 in October 1973 (Exhibit 3) and erected an outdoor advertising sign thereon. One witness testified that at the time this sign was erected in 1973 there was no other sign within 500 feet of this sign. The sign was erected within the city limits of Tampa, Florida and no permit other than a city building permit was required for this sign. In 1974 DOT required permits for all signs including those located within city limits, but no fee was collected for the permits issued for signs within the city limits. This regulation was not enforced by DOT until 1976- 1978, although in 1974 DOT had advised sign owners that permits were required for all signs and how they were to apply for permits for those signs located within the city limits (Exhibit 4). In 1975 National Advertising Company, in accordance with DOT instructions for obtaining permits for signs located in incorporated areas, submitted a renewal application in which it listed the sign located within 500 feet of Petitioner's sign (Exhibit 5). When no permit was issued by DOT, National Advertising Company, by letter dated September 1, 1977 (Exhibit 6), called to DOT's attention that they had not been issued permits for signs within city limits for which they had applied. Application for a sign permit for their sign along the I-275 located within 500 feet of Petitioner's sign was submitted by National Advertising Company on 31 March 1980 (Exhibit 7) and approved by DOT. This application showed the sign to have been erected prior to 1972. At this hearing Petitioner introduced as Exhibit 1 a copy of an Advertising Sign Permit application dated 9-1-76 executed by its predecessor in title, Martin Outdoor Advertising Company. The only indication on this application that it was received by Respondent is a received stamp dated April 15, 1980. During the period 1976-1979 considerable confusion existed in the outdoor sign industry respecting permits for signs and particularly for those signs located within city limits despite notification to sign companies (Exhibit 4). In an effort to clarify the situation, Respondent sent out circulars with the annual renewal notices advising all sign owners that signs along Interstate and Federal Aid Primary Highways within incorporated towns and cities required permits. In the circular dated December 18, 1978 (Exhibit 8), sign owners were told to submit applications for all unpermitted signs prior to February 17, 1979, and that failure to do so could result in the removal of the unpermitted signs. This was followed up by another circular dated October 31, 1979 (Exhibit 9) in which the deadline for applying for permits for those unpermitted signs was extended to January 1, 1980. Neither of these circulars which were enclosed with renewal notices were delivered by Petitioner's mail room to Petitioner's real estate section. Instead, they were forwarded to accounting with renewal notices. Upon an inspection of signs along the I-275 in March 1980, Petitioner's sign was observed without a permit and in violation of the spacing requirements. Notice of alleged violation dated 3 April 1980 was forwarded to Petitioner (Exhibit 10). Petitioner then applied for a permit for the sign which was disapproved and request for this hearing followed.
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On November 3, 1982, outdoor advertising sign permits AR946-06 and AK947-06 were issued by the Department of Transportation to Sandy Advertising Company. The permits were for a location on the west (north) side of U.S. Highway 90 approximately two miles east of its intersection with U.S. Highway 29 within the city limits of Pensacola, Florida. Sandy Advertising Company transferred those permits to Lamar Advertising Company of Pensacola, Inc. Annual renewal payments have been made each year in a timely manner by Lamar Advertising Company of Pensacola, Inc. No permit tags have been displayed at the Lamar sites and no sign has been built or maintained at the Lamar sites since issuance of the permits. Without having submitted an application for a permit to the Department of Transportation, Outdoor Media of Pensacola, Inc., obtained a building permit from the City of Pensacola for the erection of an outdoor advertising sign located in Escambia County approximately 3,790 feet east of State Road 296 on the north side of U.S. Highway 90. Pursuant to the building permit, Outdoor Media erected a sign at that location. The sign had an east and a west face and was less than 500 feet from the site for which permits AK946-06 and AK947-06 were issued. Each face of the sign required a separate permit from the Department of Transportation. Learning of the erection of Outdoor Media's sign, the Department notified Petitioner to remove it. Instead Outdoor Media applied for two sign permits for each face of the sign. On August 8, 1988, the Department of Transportation received Petitioner's applications for a state outdoor advertising permit. The applications were for each face of the sign located on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. The applications were denied on the ground that two other permits, permit AK946- 06 and permit AK947-06, had been issued to Lamar Advertising of Pensacola, Inc., for a location on the same side of the highway within one thousand feet of Petitioner's site. The spacing impediment caused by the earlier permits is the sole basis for denial of Petitioner's permit applications by the Department of Transportation. Petitioner meets all other permit requirements. In 1984, the legislature extensively revised Chapter 479, Florida Statutes. See Chapter 84-227, Laws of Florida. Of particular concern in this proceeding are the changes to Section 479.07, Florida Statutes, and whether those changes apply to permits AK946-06 and AK947-06. The revisions to this section introduced very specific tag display as well as sign erection and maintenance requirements for all permits. The revisions increased the fee schedules and provided that all permits expire annually on January 15. Section 479.07, Florida Statutes, as amended states in part: (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permit is valid only for the location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100. A permittee shall at all times maintain the permission of the owner or other persons in lawful control of the sign site to have and maintain a sign at such site. (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags which are not renewed shall be returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side- to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main- traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main- traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. The effective date(s) of the amendments to Section 479.07, Florida Statutes, is stated in Section 27 of Law 84-227. Section 27 specifically and explicitly made permits issued prior to June 30, 1984 subject to the new provisions of Law 84-227. Section 27 states: This act shall take effect October 1, 1984, except that the amendments to Section 479.07 F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. In spite of the language of Section 27, it is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within thirty (30) days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with Sections 479.07(5)(b) and (8)(a), Florida Statutes. While DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes, it is applied statewide and has been held to be an invalid unpromulgated rule in Case NO. 5227R, Final Order issued December 29th, 1988. DOT relies upon the definition of "non-conforming" signs given in Section 479.01(12), Florida Statutes. Section 479.01(12), Florida Statutes, states in part: `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. [Emphasis supplied.] 1/ DOT does not rely upon the exceptions listed in Section 479.16, Florida Statutes, as amended by Chapter 84-227. The exceptions are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits." It is DOT's view that permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained or displayed. These "secret signs" can only be discovered after the application is submitted and DOT checks its computer records. The effect of DOT's interpretation is that pre- 1984 outdoor advertising sign permits can exist into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as the permittee renews its permit. This interpretation is directly opposed to the legislature's purpose in enacting the 1984 amendments, i.e., the prevention of advertisers stockpiling unused sites and permits. Moreover, this interpretation is contrary to the pre- or post-1984 statutory language and is not a reasonable interpretation of the statute. DOT bases it's interpretation on the ground that the constitution prohibits the retroactive application of the 1984 amendments to permits existing prior to the effective date of those amendments. DOT did not offer any evidence as to the accuracy of its view on the requirements of the constitution. Failing such evidentiary support, DOT has failed to carry its burden of proof when utilizing an unpromulgated rule on a case by case basis. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause. Section 120.57(1) Florida Statutes. Section 479.07, Florida Statutes, was amended by Chapter 84-227, Laws of Florida, to require that parties obtaining outdoor advertising permits post their permit tags within thirty (30) days and erect their signs within two hundred seventy (270) days or their permits would automatically become void. The amendment became effective July 1, 1984. The amendment also expressly and explicitly provided for treatment of pre-July 1, 1984 permits by stating" . . . any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. Section 479.01(12) only makes exceptions for nonconforming "signs lawfully erected." Section 479.07(9)(c) only provides that nothing in subsection (9), pertaining to spacing requirements or permitting of new signs after July 1, 1984, may be construed to cause a sign which is conforming on the effective date of the Act to become nonconforming. See the definition of "sign" contained in Section 479.01(14), Florida Statutes, and of "erect" contained in Section 479.01(4), Florida Statutes. However, in spite of the clear language of the statutes, DOT interprets the term "permitted signs" as including permits issued prior to July 1, 1984, but which have no sign erected on the site. DOT has placed an interpretation upon the statutes that is not apparent from their language. The plain language of Sections 479.01(12) and 479.07(9)(c) only applies to signs which have been constructed on the permit site. The sections do not apply where no sign has been constructed. Since no signs were ever erected on the sites covered by permit AK946-06 and AK947-06 neither Section 479.01(12) nor 479.07(9)(c) applies to Lamar's permits. Further, DOT interprets the amendment to Section 479.07, now codified as Section 479.07(5)(a), requiring permit display and sign erection within a specified time period, to be applicable only to permits initially issued after the effective date of July 1, 1984. The agency has not enforced that subsection against preexisting permits and renewals of such preexisting permits, irrespective of whether or not a sign has ever been erected on the permitted site. However, the agency has applied and enforced against preexisting permits all other portions of the amendments, including but not limited to the mandatory recurring uniform annual January 15 renewal date and increased renewal fee with regard to preexisting permits. The agency has taken this approach on the grounds that the constitution prohibited the amendment from being applied retroactively to such preexisting permits. In Administrative Case NO. 88-5227R, this interpretation was held to be an invalid unpromulgated rule. However, agencies have the choice of properly promulgating rules and applying them with the full force and effect of law or of fully explicating those policies by demonstrating the policies' reasonableness and factual accuracy on a case by case basis in Section 120.57 proceedings. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Amos v. Department of Health and Rehabilitative Services, 444 So.2d (Fla, 1st DCA 1983); Gulf Coast Home Health Services Of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987). As noted earlier, the sole reason for DOT's policy was that it was required by the constitution. Such a bare bones claim as "the constitution requires it" is tantamount to the claim that was asserted in Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980) that a previous statutory interpretation was "wrong as a matter of law." In Florida Cities, no record foundation was made for the non-rule policy being followed in that case. The Florida Supreme Court held that such a rationale was not sustainable absent adequate record support for the application of non-rule agency policy. In this case, DOT has failed to affirmatively show the reasonableness and factual accuracy of the policy that sign permits which were issued prior to July 1, 1984, should not be subject to Section 479.07(5), Florida Statutes, enforcement and should be treated as if they constituted, erected and maintained signs for purposes of Section 479.07(9), Florida Statutes. It is doubtful that DOT could ever show the accuracy of its view of the constitution. The case law in the area clearly establishes that permits such as these are not property in the constitutional sense. Such permits do not confer any right, estate or vested interest, and are revocable at the will of the legislature. Such permits are also subject to new permit conditions. State ex rel First Presbyterian Church of Miami v. Fuller, 187 So. 148 (Fla. 1939); City of Miami Beach v. Deauville Operating Corp., 129 So.2d 185 ( Fla. 3d DCA 1961) and Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 ( Fla. 1st DCA 1977). Moreover, the 1984 amendments to Chapter 479 do not require retroactive application to be applied to permits AK946-06 and AK947-06. The new permit conditions were applicable only upon the expiration of the old permits on January 15. Thereafter, the new permit conditions applied to the renewal. Therefore, since Lamar did not build any signs on the sites covered by either permit AK946-06 or AK947-06 within 270 days of its first renewal after the effective date of the statutory revisions to Chapter 479, Florida Statutes, and has not posted the required tags at the sites, permits AK946-06 and AK947-06 are void and cannot be used as a basis for denying Petitioner's sign applications. As in Florida Cities, having failed to establish the reasonableness and accuracy of its policy, the foregoing policy cannot form the basis of the permit denials. This is especially true in light of the fact that DOT's policy ignores the clear language of the statutory amendments.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order voiding Permits AK946-06 and AK947-06, held by Respondent, Lamar Advertising Company, Inc., and granting the applications of Outdoor Media of Pensacola, Inc. DONE and ENTERED this 23rd day of May, 1990, 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 23rd day of May, 1990.
Findings Of Fact On October 13, 1981, Henderson Signs filed applications for four permits to erect two outdoor advertising signs in Jackson County, Florida, on the south side of Interstate 10, one approximately 2.65 miles and the other approximately 2.85 miles east of SR 276. These applications were field inspected by the Department's outdoor advertising inspector and by his supervisor, they were approved on or about November 2, 1981, and the Department issued permits for the requested locations to Henderson Signs. Subsequent to the issuance of these permits, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in the permits which authorized the subject signs to be erected. On or about March 23, 1983, the Respondent filed outdoor advertising permit affidavit forms requesting that the Department issue replacement tags for the subject signs because the tags previously issued had been lost. The Department replaced the older permit tags with new tags numbered AI998-10, AI999-10, AJ001-10 and AJ002-10. A business known as Brooks Construction Company is located within 800 feet of each of the subject sign locations. At various times some construction equipment can be seen parked in the vicinity of Brooks Construction Company. Although the view from 1-10 is partially obstructed by trees, this equipment might be seen from the interstate if one were looking at the right spot. Also, a small on-premise sign is located at this site, but the view of this sign is no better from 1-10 than the equipment is. The business known as Brooks Construction Company is located in a structure that resembles a brick residential building, which is used as a residence. A portion of this residential building is visible from 1-10, but is as obscured from view as the equipment and the sign are. The area where the subject signs are located is rural in nature. There is nothing about the building used by Brooks Construction Company that would indicate to a traveler on 1-10 that anything other than a residence was located at this site, even if the traveler were able to see this building from the interstate. Prior to the transfer of the permits from Henderson Signs to the Respondent, a representative of the Respondent testified that he inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. He further testified that he received assurance from the Chipley district office that these permits were legal permits. This testimony, however, is self-serving and uncorroborated, and thus is not of sufficient quality to support a finding of fact. Henderson Signs submitted the applications for the subject permits, and designated thereon that the proposed locations were in an unzoned commercial area within 800 feet of a business. These applications also certified that the signs to be erected met all of the requirements of chapter 479, Florida Statutes. During the summer of 1984, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued notices of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AI998-10, AI999-10, AJ001-10 and AJ002-10, held by the Respondent, Tri-State Systems, Inc., authorizing two signs on the south side of I-10, 2.65 miles and 2.85 miles east of SR 276 in Jackson County, Florida, be revoked, and the subject signs removed. THIS RECOMMENDED ORDER entered this 6th day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Honorable Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
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.
