Findings Of Fact In 1976 an outdoor advertising company named Outdoor Media applied to the Department to have permits issued for a sign that had been built in 1971 on the north side of I-4, 1.42 miles west of U.S. 17/92/441 (Orange Blossom Trail) inside the city limits of Orlando. Permit numbers 2259-12 and 2260-12 were issued by the Department to Outdoor Media for the west face and the east face of this sign. In 1978 the Respondent, Peterson Outdoor Advertising, Inc., purchased this sign from Outdoor Media. A request for replacement tags was made and granted, and tag number 2259-12 was replaced by 7553-12, and tag number 2260-12 was replaced by 7554- In April of 1984 the Respondent again requested replacement tags, and tag number 7553-12 was replaced by AM 267-12, and tag number AM 7554-12 was replaced by AM 268-12. Sometime after April, 1984, this sign was removed, and the Respondent erected a new sign, a monopole, at a location on the north side of I-4, 1.5 miles west of U.S. 17/92/441 (Orange Blossom Trail). This is approximately 200 feet west of the place where the old sign had been located. The Respondent affixed tag numbers AM 267-12 and AM 268- 12 to the new monopole structure, but these tags were not issued for this sign. They had been issued for the old sign which was removed. The city limits of Orlando are such that the location of the new monopole is outside the city; while the location where the old sign had been was inside the city limits. The county allows a taller sign than may be built inside the City of Orlando, and the Respondent wanted to enhance the visibility of its sign by raising its height. The Respondent obtained a variance from Orange County to extend the height of the monopole sign to a total of 65 feet. The monopole sign at 1.5 miles west of U.S. 17/92/441 percents adjacent to the ramp leading onto I-4 and is less than 1,000 feet from the nearest permitted sign. The distance between these signs is 898 feet as measured by the Department's inspector using a measuring wheel. The Department's inspector has more than 11 years of experience. He has measured signs, sites and locations over 1,000 times. He is familiar with the state and federal requirements for calculating point to point measurements between signs, and he followed them in making the measurements in this case. The Department's inspector measured the distance between the Respondent's new monopole and the nearest permitted sign three times with the same result. Be ran the measuring wheel along the right-of-way of I-4 at right angles to the two signs. Five of the Respondent's witnesses also measured the distance between these signs with results ranging from 955 feet to 1,016 feet. However, none of these witnesses had any experience in making measurements between signs pursuant to state and federal requirements, and some of these distances were obtained by measuring along the ramp instead of along the side of the highway. Thus, the testimony of the Department's inspector is found to be the credible evidence supporting the finding that the two subject signs are 898 feet apart. The Department's evidence relative to when the new monopole was erected is vague and imprecise, and thus not of sufficient quality to support a finding of fact on this issue. The Respondent presented evidence to show that the monopole was erected in April of 1984, and it contends that it applied for the county variance in preparation for relocation and reconstruction of this sign. However, the Respondent's evidence that the monopole was erected in April of 1984 is self-serving, and not corroborated. Even the variance notice indicates that it was applied for on October 4, 1984. Thus there is likewise insufficient credible evidence to support the Respondent's contention relative to when this sign was actually constructed. Nevertheless, the Respondent erected its new monopole structure at the point on the north side of I-4, 1.5 miles west of U.S. 17/92/441, without having first obtained a state sign permit for this location. The Respondent's manager and its president both admit that tags numbered AM 267-12 and AM 268-12 were issued for the sign at 1.42 miles west of U.S. 17/92/441. Peterson Outdoor Advertising is a licensed outdoor advertising company. The firm's manager has been in the business for 27 years. The company president has been engaged in the business of outdoor advertising for more than 25 years, and he claims to have a familiarity with the law. From these facts, and from all inferences that can be drawn therefrom, there is not sufficient evidence to support a finding that this experienced outdoor advertising company was misled into moving its sign 200 feet westward without a permit by the Department's approval of its request for replacement tags for the old sign structure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent's sign on the north side of I-4, 1.5 miles west of U.S. 17/92/441, in Orange County, Florida, be removed. And it is RECOMMENDED that permits numbered AM 267-12 and AM 268-12 be REVOKED. THIS RECOMMENDED ORDER entered this 26th day of February, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. APPENDIX Petitioner's Proposed Finding of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Replacement tags are not outdoor advertising sign permits. Rejected as not supported by competent substantial evidence, or irrelevant. Last sentence is accepted. Rejected as irrelevant. Lost tag application is not an application for outdoor advertising sign permit. Accepted. Rejected as not supported by competent substantial intent. Rejected as irrelevant, except for raising the height of the sign to 65 feet which is accepted. Rejected as irrelevant or not supported by competent substantial evidence, except for the granting of a variance and the building permit which are accepted. Rejected, as not supported by competent substantial evidence. Rejected, as not supported by competent substantial evidence. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32801-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Should Petitioner be granted a permit to change an on-premise sign to advertise a business not located on his property?
Findings Of Fact Petitioner Philip G. Mashalanie acquired part ownership of property adjacent to Interstate Highway 4 located in the city of Orlando, Florida in December of 1980. (Transcript, page 8.) On the premises there is a large building presently leased to a church-sponsored organization and a hospital, on which there is a sign thirty-five (35) feet long and twenty-four (24) feet high. At the time of hearing this sign advertised "Miller Mechanical Air Conditioning," referring to a business which had been located on the premises prior to purchase of the property by Petitioner. (Petitioner's Exhibit 6; Transcript, pages 10-17.) The message on both sides of the two-faced sign is within 660 feet of Interstate Highway 4 and is clearly visible to the traveling public. The sign has no permit from Respondent Department of Transportation, as it had advertised a business located on the property and no permit was required. Subsequent to purchase of the property and after Miller Mechanical Air Conditioning Company moved from the premises Petitioner sought a permit from Respondent Department to improve the subject sign and lease it to Amerifirst Federal Savings and Loan Association for advertising purposes. This financial association is Miami-based and is not located on the premises. (Petitioner's Exhibits 4 and 5.) By letter dated May 13, 1981 Respondent Department denied Petitioner's oral application for a permit, citing the lack of 1,000 feet of space between previously permitted signs as the reason for denial. Petitioner applied to the Orlando City Council and obtained a variance permit to convert the existing sign, with the stipulation that the sign area should be not more than 428 square feet. (Petitioner's Exhibit 2.) Testimony showed that Petitioner presented to the Council a plan for beautification of the area around the Sign which would advertise the aforementioned savings and loan association. (Petitioner's Exhibit 5.) The two-faced proposed sign is 236 feet east of a sign bearing permit tag #856510 with the message "Beautiful Barbados." A second sign immediately behind this sign and facing the other direction is permitted as sign #66476 and is also approximately 236 feet from the subject proposed sign. Petitioner and Respondent submitted memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the testimony adduced, the evidence admitted and after consideration of the proposed recommended orders of the parties, it is recommended that the Department of Transportation enter a final order denying the Petitioner's application for a permit to be issued for the proposed sign. DONE and ORDERED this 19th day of January, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 19th day of January, 1982. COPIES FURNISHED: Richard A. Leight, Esquire 39 West Pine Street Orlando, Florida 32801 Philip S Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue As to DOAH Case No. 99-4902T, whether the outdoor sign bearing permit AF330 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0398T, whether the outdoor sign bearing permit AF330 was illegally rebuilt. As to DOAH Case No. 99-4903T, whether the outdoor sign bearing permit BF075 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt. As to DOAH Case No. 00-0397T, whether the outdoor sign bearing permit BF075 was illegally rebuilt.
Findings Of Fact Respondent 1/ is the owner of two outdoor advertising signs, both of which are located in Indian River County, Florida, adjacent to Interstate 95. Both signs were erected in 1971 pursuant to sign tag numbers AF330 and BF075, respectively. Sign A is located .49 miles south of milepost 153. Sign B is located .67 miles south of milepost 155. Section 479.01(14), Florida Statutes, defines the term "nonconforming sign" as follows: (14) "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. When the signs were erected in 1971, the area in which both signs are located was a part of unincorporated Indian River County. In 1990, the area in which both signs are located was annexed into the City of Fellsmere, Florida. Prior to the annexation, the area was zoned by Indian River County under the agricultural designation. That zoning designation has not been changed by the City of Fellsmere and the area remained zoned agricultural at the time of the final hearing. At all times relevant to this proceeding an outdoor advertising sign has not been an allowable use in an area zoned agricultural. There is an outdoor advertising sign less than 1,000 feet south of sign B, and there is an outdoor advertising sign less than 1,000 feet north of sign B. Both of these other signs are on the same side of the Interstate as sign B. When sign B was erected in 1971, the spacing requirements for signs along an Interstate Highway was 1000 feet, meaning that a proposed sign could not be within 1000 feet of an existing sign. Since 1984, Section 479.07(9)(a), Florida Statutes, has provided that outdoor advertising signs along an Interstate Highway must be at least 1500 feet apart. When initially constructed both sign A and sign B consisted of six wooden poles and wooden stringers. In October 1999, both sign A and sign B were destroyed by a hurricane. The hurricane knocked sign A completely down, the stringers were damaged, and all of the poles were snapped at ground level. Similarly, the hurricane knocked sign B completely down, the stringers were damaged, and four of the six poles were snapped at ground level. On October 29, 1999, Petitioner issued the Notices of Violation that serve as the basis for DOAH Case No. 99-4902T and DOAH Case No. 99-4903T. Both Notices alleged that the respective sign has been destroyed and may not be re-erected. 2/ Subsequent to the damage to sign A, Respondent erected another sign at the same location as that previously permitted for sign A. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag AF330 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0398T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed. Subsequent to the damage to sign B, Respondent erected another sign at the same location as that previously permitted for sign B. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag BF075 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0397T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order requiring the removal of each sign at issue in this proceeding. DONE AND ENTERED this 17th day of July, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2000.
Findings Of Fact Larry Brummitt owned a sign on U.S. 90 in Greenville, Florida advertising Country Corner for which he held a permit for seven or eight years. U.S. 90 is a federal-aid primary highway. Mr. Brummitt desired to rebuild and relocate this sign a short distance from its authorized location and, to insure he did things properly, sought advice both from the advertising sign inspectors at Lake City and from the State Administrator of the Outdoor Advertising Section in Tallahassee. At both places he was told that be could not get an application for a new sign approved until his existing sign was removed because the new sign would violate the spacing requirements of Rule 14D-10.06(b)3, Florida Administrative Code while the existing sign was up; that an application would not be accepted while the former sign was standing; that the policy of the Department, when conflicting interests desired to erect signs where only one could be erected, was the person whose application was first received would be approved. The Department's long-standing policy, which was memorialized in a memorandum to all District Outdoor Advertising Sign Administrators in 1978, is that where conflicting applications for signs are received, the first submitted will be approved. Relying upon this information, Petitioner prepared his application, removed the old sign, and at 10:00 a.m. on 2 June 1980 presented his application to Respondent for a permit to erect his replacement sign. On 24 March 1980 American Sign and Indicator Company first approached Respondent's sign inspector to inquire about erecting a time and temperature sign for the Bank of Greenville. They were told that a permit for such a sign could not be issued because it would be within 500 feet of the Country Corner sign and would violate the spacing requirements unless Brummit's sign was first moved. At 1400 hours on 2 June 1980 American Sign and Indicator Company presented an application at the Lake City Headquarters of Respondent for a permit to erect a time and temperature sign at approximately the same location earlier requested by Brummitt. In his letter of 11 June 1980 the District Administrator, Outdoor Advertising, in Lake City advised Mr. Brummitt that his application was being disapproved and of his right to petition for an administrative hearing within 14 days or the denial would become final. As reasons for denying the application the letter stated: The application indicates the proposed location would be within 500 feet if a proposed time and temperature display to be erected by the Bank of Greenville in the County of Madison. The Bank of Greenville has been dealing in good faith with the Department to erect this display since January 5th, 1980. After obtaining the necessary criteria and additional expenses accrued, the Department feels the bank should be allowed to erect the display, because we feel they were the first applicant. When questioned by the Hearing Officer how Respondent "reasoned" the bank's application was received prior to Petitioner's application, the District Sign Inspector acknowledged that he had discussed these applications with the Chief Right-of-Way Agent in District 2, Mr. Bielling, under whose supervision the Outdoor Advertising Section comes, that Mr. Bielling is his boss and tells him what to do (Tr. p. 24-25) and that as far as the sign inspector is concerned, Mr. Bielling has the prerogative to change DOT policy.
Findings Of Fact The Respondent, E. T. Legg and Company, owns the sign which is the subject of this proceeding, located on U.S. 441 or S.R. 7, approximately 1,117 feet north of Snake Creek Canal in Dade County, Florida. The sign faces north and south. The Department issued permits for a sign in 1979, one for the north face and one for the south face. These permits authorized a sign on U.S. 441 (State Road 7), approximately 550 feet north of Snake Creek Canal in Dade County, Florida. It is not clear from the record whether these permits were issued for the subject sign or for another sign but the permit tags issued for these permits were affixed to the subject sign until these tags were stolen. The Respondent's permit applications stated that the sign to be erected would be located 500 feet from the nearest existing sign. Subsequent to the Department's issuance of the permits for the subject sign, it determined that the Respondent's sign had been built closer than 500 feet from the nearest sign. The Respondent stipulated that there is less than 500 feet between the subject sign and the sign nearest to it. The sign nearest the subject sign is also owned by the Respondent. It is a two-faced permitted structure located south of the subject sign, and it was in place when the subject sign was erected. In 1981, the Respondent applied for tags to replace the permit tags the Department had issued pursuant to the 1979 application. These tags had been stolen. Replacement tags were not issued by the Department for the reason that it had determined the subject sign to be in violation of the spacing rule requiring 500 feet between signs. Permit fees had been paid by the Respondent through the year 1981. In October of 1981, the Department initiated this proceeding, charging the Respondent with violations of Chapter 479, Florida Statutes for not displaying permit tags on the subject sign, and for violating the spacing rule by locating this sign within 500 feet of an existing sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order dismissing these charges against the Respondent, E.T. Legg and Company, subject to payment by the Respondent of all permit fees due for the years 1982 through 1986. THIS RECOMMENDED ORDER entered this 31st day of July, 1986 at 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 31st day of July, 1986. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Charles C. Papy III, Esquire 201 Alhambra Circle Suite 502 Coral Gables, Florida 33134 Hon. Thomas E. Drawdy Secretary Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel 562 Haydon Burns Bldg. Tallahassee, Florida 32301 =================================================================
Findings Of Fact On January 7, 1980, Dowden Funeral Home, Respondent, obtained a building permit from Highlands County (Exhibit 4), to construct a wooden sign along U.S. 17 near Sebring, Florida; and thereafter constructed a 20-foot by 14- foot sign along U.S. 17, 0.25 mile northeast of U.S. 27. The location is just outside the city limits of Sebring, Florida, and U.S. 17 is a federal-aid primary highway. Respondent's sign is located approximately 200 feet from a Barnett Bank sign which was permitted and erected in 1977 (Exhibit 6). Respondent's witness contends that when he obtained the building permit and inquired if additional permits were needed to erect this sign, he was told no by the county building officials.
The Issue The issue is whether Respondent's Notices of Intent to Revoke Sign Permit should be upheld.
Findings Of Fact Petitioner, Woody Drake Advertising, Inc., owns and operates an outdoor advertising sign (the "Sign"), which is located off Interstate 10 (I-10) in Leon County, Florida, and bears tag numbers AG329 and AG850. Respondent, Florida Department of Transportation, is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway System, Interstate, or Federal-aid Primary System (controlled portion) in accordance with Chapter 479, Florida Statutes. Jack Wainwright, Jr., is the owner and operator of Petitioner, having purchased the company from his parents approximately 13 years ago. Mr. Wainwright's family has been in the business of outdoor advertising since at least 1976. The Sign consists of one structure with two faces and is located within the controlled portion of I-10, .239 miles east of Still Creek. The Sign is a non-conforming, wooden, V- shaped, 12-pole sign. On June 28, 2009, the Sign sustained damage from high winds associated with a storm. The next day, after being notified of the damage, Mr. Wainwright went to the sign's location and physically inspected it. Grimes Cranes is in the business of, among other things, building and maintaining outdoor signs, such as the Sign at issue. Walter Grimes has owned Grimes Cranes since 2000. Mr. Grimes has worked in the business of erecting and maintaining wooden and metal outdoor advertising signs for approximately 23 years. On average, Mr. Grimes erects 18-to-20 outdoor advertising signs a year. By his estimate, Grimes Cranes has moved, erected, or maintained approximately 75 percent of the outdoor advertising signs in Tallahassee, Florida. Mr. Wainwright contacted Mr. Grimes to obtain an estimate to repair the Sign. They met at the Sign's location on either June 30 or July 1, 2009. Based upon his experience and visual inspection of the uprights, Mr. Grimes concluded that five of the 12 uprights could be reused when repairing the Sign as they were neither broken, splintered, nor otherwise damaged. Mr. Grimes concluded that 35-to-40 percent of the total Sign had been destroyed by the storm. This conclusion was based upon his personal examination of the Sign and his experience in maintaining and erecting outdoor advertising signs. After Mr. Grimes' inspection of the Sign, Mr. Wainwright disassembled the Sign and transported the materials to his father's farm. Once he disassembled the Sign, Mr. Wainwright assessed the damage to it. Based upon his knowledge and experience as owner of Petitioner sign company for the past 13 years, Mr. Wainwright determined that six of the 12 uprights were reusable. Although Mr. Grimes intended to use the five uprights he found to be undamaged in the rebuilding of the Sign, he was not able to do so because Mr. Wainwright had removed the uprights from the area. Mr. Grimes determined it was simpler and more economical to install new uprights on the site rather than haul the reusable ones from their present location on the Wainwright family farm. Ms. Lynn Holschuh has been Respondent's State Outdoor Advertising and Logo Administrator since 1992. While well educated with both a bachelor's and master's degree in English, she has not worked in the business of erecting outdoor signs; has never personally erected an outdoor advertising sign; and has no personal experience building an outdoor advertising sign. The two Notices issued by Respondent that are the basis for this action were signed by Ms. Holschuh as the State Outdoor Advertising and Logo Administrator. The Notices state Florida Administrative Code Rule 14-10.007(6)(a) as the basis for the proposed action, alleging that "[m]ore than 60% of the upright supports have been damaged such that replacement is required." Ms. Holshcuh never personally inspected the Sign's uprights and has no personal knowledge as to whether eight or more of the uprights were damaged such that normal repair practices of the industry required their replacement. The Notices were issued after she reviewed photographs taken on July 7, 2009, by an inspector for Respondent. Ms. Holschuh determined, after inspecting the photographs, that ten of the Sign's uprights had been damaged since only two were standing when the inspector took the pictures. This was an assumption on her part based upon the photographs, not her personal inspection of the Sign and uprights following the damage from the storm. Respondent's inspector returned to the site of the Sign on August 17, 2009, took additional photographs, and noted that a new 10-pole sign had been erected on the site. The Sign had been permitted as a 12-pole sign, but had been rebuilt as a 10-pole sign with 10 brand new uprights. Respondent interprets Florida Administrative Code Rule 14-10.007(6)(a) as requiring that the sign owner use the poles that are not damaged in rebuilding the sign. Respondent does not interpret this rule provision to allow the erection of a completely new sign. Ms. Holschuh admitted that Florida Administrative Code Rule 14-10.007(6)(a) does not explicitly require the actual re-use of the non-damaged upright supports when a non-conforming sign is re-erected. Respondent concedes that as long as 60 percent of the uprights had not been damaged to the extent that replacement of the upright supports was required due to the damage, the sign could be disassembled and re-erected. Ms. Holschuh agreed that the Sign could have been disassembled and re-erected if no more than seven of the uprights had sustained damage. Damage to seven of the uprights would constitute 58.33 percent replacement while damage to eight of the uprights would constitute 66.67 percent replacement.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Notices of Intent to Revoke Sign Permit. DONE AND ENTERED this 7th day of January, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2010. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Claude Ridley Walker, Esquire Guilday, Tucker, Schwartz & Simpson, P.A. 1983 Centre Pointe Boulevard, Suite 200 Tallahassee, Florida 32308-7823 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie C. Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether a sign owned by Henderson Sign Company located approximately one- tenth of a mile east of the junction of State Road 73 and U.S. 90 containing as old copy "Key Drug Center" and new copy "Best Western Motor Inn" is in violation of the permit (Section 479.07(1) and (6), F.S.), spacing (Sections 479.02 and 479.111(2), F.S.), and setback (Section 479.11(1),F.S.) requirements.
Findings Of Fact The respondent owns and maintains an outdoor advertising structure adjacent to U.S. Highway 90 approximately one-tenth mile east of its intersection with State Road No. 73 within the corporate limits of the City of Marianna. This structure is a double billboard, with one advertisement for "Key Drug Center," erected in August of 1974, and the other for "Best Western Motor Inn" erected in April of 1976. It is located approximately five (5) feet from the edge of the sidewalk approximately 10 to 15 feet from the edge of the north side of Highway 90. At the time of the Respondent's erection of the first sign, he obtained a permit from the City of Marianna but not from Petitioner Department of Transportation. Before erection of the second sign, in 1976, the Respondent submitted an application to the Petitioner, but the application was denied. There is no other outdoor advertising structure bearing a properly issued permit from the Petitioner in existence within 500 feet from the Respondent's advertising structure although there is a non-permitted sign within 120 feet facing in the same direction. Petitioner has entered into evidence a copy of the zoning ordinance of Marianna, Florida. Petitioner contends: that the signs of Respondent violate the set-back, space and permit section of Chapter 479, Florida Statutes, and of The Governor's Agreement of 1972. Respondent contends: that the Petitioner has not proved where the edge of the right-of-way of Federal Highway 90 is located, that the other sign, if any, is not a lawful sign, having no permit, so the spacing violation, if any, is not enforceable and that the requirement of Chapter 479, Florida Statutes, does not apply to incorporated cities.
Recommendation Remove subject signs for violation of the 660 foot setback requirements of a federal aid highway, Section 479.11(1), and the spacing requirements of the Governor's Agreement of January 27, 1972. The zoning ordinance of Marianna, Florida does not show that there is effective control of outdoor advertising by the City of Marianna. DONE and ORDERED this 13th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Office of Legal Operations Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida 32304 Richard Wayne Grant, Esquire 209 North Jefferson Street Marianna, Florida 32446 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Henderson Sign Service Post Office Box 887 Marianna, Florida Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected less than 100 feet from the right-of-way, of U.S. 17/92, one and one- half to two miles north of State Road 436, in Seminole County, Florida. The subject sign is a steel monopole having two faces, one facing east and one facing west. The side facing east is visible from the main-traveled way of U.S. 17/92. The other side is not. U.S. 17/92 is a federal-aid primary highway running north and south at the point where the subject sign is located. The subject sign bears the copy "Spicewood - large wooded lots". This sign has no state sign permit, and none has been issued for it by the Department. There is an outdoor advertising sign approximately 792 feet south of the Respondent's sign which has been permitted by the Department. Permit number ADO85-35 has been issued to Creative Signs for the sign 792 feet south of the Respondent's sign. The sign owned by Creative Signs is on the same side of U.S. 17/92 as the Respondent's sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the sign owned by the Respondent, National Advertising Company, adjacent to U.S. 17/92, approximately 1.75 miles north of State Road 436, in Seminole County, be removed. THIS Recommended Order entered on this 4th day of December, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 4th day of December, 1986. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 323a1-8064 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802-2151
The Issue Whether the structure described in the Department of Transportation's Notice of Violation No. 10B DB 2000 007 (Notice) is in violation of Section 479.07(1), Florida Statutes, and therefore subject to removal pursuant to Section 479.105, Florida Statutes, as alleged in the Notice.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is an outdoor advertising company that was formerly known as AK Media. On December 10, 1998, Petitioner (while still known as AK Media) entered into an agreement with NWT Partners, Ltd., the owner of the New World Tower (Building), a "thirty story four (4) sided building" located at 100 North Biscayne Boulevard in Miami, Florida, to lease certain portions of the Building. The lease agreement contained the following provisions, among others: Effective Date. This Lease shall become effective on the later of (x) the date that Tenant provides written notice to Landlord that Tenant has obtained all permits, license and governmental approvals necessary or required to enable Tenant to construct, maintain and operate the Wall Faces and Wall Structures, as hereinafter defined or (y) January 1, 1999 (the "Effective Date"). Tenant shall have ninety (90) days from the date of this Lease to obtain all such permits, licenses and approvals or the Landlord may cancel this Lease. Purpose. The purpose of this lease is for Tenant to construct, maintain and operate painted, printed, illuminated and/or electrical signs on the north and south wall faces of the Building (the "Wall Faces"), and all other uses not inconsistent therewith, including all necessary supporting structures, devices, illumination facilities and connections, service ladders and equipment, and other appurtenances (the "Wall Fixtures"). All construction to the Building, and advertising thereon, including construction drawing and artwork to be furnished by the Tenant shall be subject to Landlord's written approval, which approval shall not be unreasonably withheld. Tenant's Right to Enter and Use. For the duration of this Lease, Tenant shall have the non-exclusive right to enter onto the Property and into the Building and use the Wall Faces for the purposes described in this Lease and any other purposes allowed or required by this Lease and Tenant has the exclusive right to use the Wall Faces Property for advertising. In exercising Tenant's rights hereunder, Tenant may hang or attach the Wall Fixtures to the roof and exterior structure of the Building. Tenant shall maintain the Wall Fixtures at Tenant's cost and expense. Tenant shall pay all utility charges in connection with the operation and maintenance of the Wall Fixtures. Tenant shall be responsible for damage to the Building which is caused by Tenant's operation and maintenance and removal of the Wall Fixtures and shall repair any such damage and restore the Building to the condition it was in immediately prior to such damages at the expiration or termination of this Lease. Term. The term of this Lease is for five (5) years from the "Rent Commencement Date," as hereinafter defined, to the last day of the month during which the fifth anniversary of the Rent Commencement Date occurs (the "Term"). Rent. Tenant shall pay Landlord rent annually, in accordance with the schedule (the "Rent Schedule") set forth on Exhibit "B" hereto, inclusive of all taxes . . . . Contracts. Anything herein to the contrary notwithstanding, Tenant will use its best efforts to obtain contracts (the "Contracts") for advertising on the Building which exceed the amount of the Guaranteed Rent, as set forth on the Rent Schedule. . . . 9. Ownership/Removal. At all times, Tenant is and shall remain the owner of the Wall Fixtures and all signs and permits of any kind in relation thereto, and has the right to remove the Wall Fixtures at any time. . . . Exhibit "B" Rent Schedule Tenant shall pay annual rent to Landlord in an amount equal to the greater of (x) Fifty-five percent (55%) of the gross revenues attributable to advertisements displayed on the North Wall and the South Wall of the Building less any agency fee or commissions not greater than 16 2/3% to bona fide third parties (the "Net Revenues") associated with such advertisements (the "Percentage Rent") or (y) the minimum guaranteed annual rent (the "Guaranteed Rent") hereinafter set forth as follows: . . . The Landlord may terminate the Lease Agreement upon thirty (30) days prior written notice to Tenant if either Wall is vacant for more than one hundred twenty (120) consecutive days during the Term of the Lease and the Tenant has failed to obtain a contract, before the expiration of such notice period, for advertising on the North Wall or South Wall, as the case may be, pursuant to which the projected Percentage Rent under such contract would exceed the Guaranteed Rent. . . . Subsequently, Petitioner (while still operating under the name AK Media) entered into a "bulletin contract" with New York Outdoor, an advertising agency acting on behalf of Supreme International, in which Petitioner agreed, for a fee, to produce and maintain an "outdoor advertising display" for Supreme International on the north wall of the Building. Supreme International sells "Perry Ellis" and "Perry Ellis for Men" brand fashion apparel. In accordance with the "bulletin contract," Petitioner produced an "outdoor advertising display" for Supreme International on the north wall of the Building. The "outdoor advertising display" that Petitioner produced was a large mural more than 100 feet high and more than 60 feet wide. Such a product is referred to in the outdoor advertising industry as a "wallscape." The "wallscape" that Petitioner produced for Supreme International consisted of artwork (a picture of a young woman) and print (the words "Perry Ellis for Men") on a "canvass-type" material that was mounted on a "picture frame" support structure attached to the north wall of the Building. It was located within 660 feet of the nearest edge of the right-of-way of a roadway, US Highway 1 (also known, in that location, as North Biscayne Boulevard), which is a part of the federal-aid primary highway system. The artwork and print could be seen without visual aid by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building. At no time has Petitioner applied for, or obtained, a permit from the Department authorizing it to erect and maintain a "sign," as that term is used in Chapter 479, Florida Statutes, on the north wall of the Building. Petitioner, however, did seek and obtain a Class II Special Permit from the City of Miami. The permit was granted by the Miami City Commission, through the passage of Miami City Commission Resolution 99- 828, at its October 26, 1999, meeting. The printed agenda distributed in advance of the meeting stated the following concerning the permit for which Petitioner had applied: Consideration of approving Class II Special Permit No. 99-0142 for the property located at approximately 100 North Biscayne Boulevard for a sign of a graphic or artistic value. This will allow a mural containing a commercial message. The resolution passed by the Miami City Commission at the meeting read as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE RECOMMENDATION OF THE DIRECTOR OF THE PLANNING DEPARTMENT FOR ISSUANCE OF CLASS II SPECIAL PERMIT APPLICATION NO. 99-0142, SUBJECT TO THE CONDITION THAT THERE SHALL BE NO WRITING PERMITTED WITH THE MURAL AND OTHER CONDITIONS AS RECOMMENDED BY THE PLANNING DEPARTMENT FOR THE PROPERTY LOCATED AT APPROXIMATELY 100 NORTH BISCAYNE BOULEVARD, MIAMI, FLORIDA, PURSUANT TO SECTION 401 OF ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED. WHEREAS, the Director for the Department of Planning is recommending approval of Class II Special Permit Application No. 99-0142, with conditions, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida; and WHEREAS, Zoning Ordinance No. 11000, as amended, the Zoning Ordinance of the City of Miami, Florida, requires City Commission approval of the Class II Special Permit as hereinafter set forth; and WHEREAS, the City Commission after careful consideration of this matter, finds the application for a Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to approve the recommendation of the Director of the Department of Planning to uphold the issuance of the Class II Special Permit, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. Section 2. The recommendation of the Director of the Department of Planning to issue Class II Special Permit Application No. 99-0142, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida, is hereby approved, and the City Commission finds that the issuance of Class II Special Permit Application No. 99-0142, with conditions does meet the applicable requirements of Zoning Ordinance No. 11000, as amended. Section 3. The Resolution shall become effective immediately upon its adoption and signature of the Mayor. Inasmuch as the words "Perry Ellis for Men" were on the "wallscape" that Petitioner produced for Supreme International, this "wallscape" was not in compliance with the condition imposed by the Miami City Commission, in issuing the Class II Special Permit to Petitioner, that there "be no writing permitted with the mural." On February 22, 2000, Bernard Davis, who, at the time, was the Department's District 6 Roadside Outdoor Advertising Administrator, issued a Notice of Violation (Notice No. 10B DB 2000 007) alleging that the "wallscape" on the north wall of the Building (described above) was "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes" and directing that the sign be removed within 30 days. Petitioner thereafter requested an administrative hearing on the matter. Prior to the hearing, the artwork and print on the "wallscape" on the north wall of the Building were changed. As of the date of the final hearing in this case, the "wallscape" on the north wall of the Building contained a picture of a man and part of a woman and the words "Perry Ellis," underneath which was written "www.perryellis.com," Supreme International's website address. The Monday and Tuesday before the final hearing (February 5 and 6, 2001), Mr. Davis' successor, C. Jean Cann, went inside the Building to determine whether Supreme International had an "on-premises presence." On Monday, February 5, 2001, Ms. Cann entered the Building at approximately 1:15 p.m. After obtaining information from the Building's Electronic Directory that "Perry Ellis" occupied room 2128, she took the elevator to the 21st floor. After getting off the elevator, she walked down a hallway, where she saw a paper sign on a door which read "Perry Ellis/Supreme International, Incorporated, 2128." When she knocked on the door, no one answered. She waited 10 to 15 seconds and then knocked again, with the same result. She then, unsuccessfully, attempted to open the door. At around 1:45 p.m., she left the Building. Ms. Cann returned to the Building the following day at approximately 11:40 a.m., at which time she spoke to a security guard, who informed her that "Perry Ellis" "was in 2126." She then again went up to the 21st floor, and, on the same door that she had seen the "Perry Ellis/Supreme International, Incorporated, 2128" sign the day before, she saw a paper sign that read "Perry Ellis/Supreme International, Incorporated, 2126." Her knocks on the door, like those of the previous day, went unanswered, and she was again unable to open the door. At around 12:00 noon, she exited the Building. At no time during either of her two visits was Ms. Cann able to ascertain what, if any, business activity Supreme International was engaging in inside the Building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that the "wallscape" on the north side of the Building is a "sign" that was erected and is being maintained without the Department-issued permit required by Section 479.07(1), Florida Statutes, and that it therefore is a public and private nuisance that must be removed pursuant to Section 479.105(1), Florida Statutes. DONE AND ENTERED this 23rd day of March, 2001, 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 23rd day of March, 2001.
