Findings Of Fact Respondent, San Ann Food Stores, is the owner of an outdoor advertising sign located 5.89 miles east of the Hillsborough County Line, on the east side of Interstate 4 in Polk County. More specifically, the sign is east of the U.S. 98 and I-4 intersection which lies just north of the City of Lakeland. The sign is two-sided, with one side facing eastward, and the other facing westward. It sits on top of two poles which are approximately sixty feet high. The parties have stipulated that the sign is visible from I-4, although just barely, and lies within five hundred feet of that highway. They have also stipulated that no permit has ever been issued by petitioner, Department of Transportation (DOT), authorizing its use. The sign does not lie within the corporate limits of a city; however, this is immaterial to the resolution of these cases. On an undisclosed date, a DOT inspector observed the sign while conducting an inspection of another sign and found no display of a current valid permit tag. After checking his records, he found that no permit had ever been issued authorizing its erection and use. It was also determined, without contradiction, that the sign is within five hundred feet of the interchange of I-4 and U.S. 98. Such an intersection is classified as a restricted interchange. According to Rule 14 10.06(2)(b)2. and state law, no signs are permitted within five hundred feet of such an interchange. The sign in question was erected by Sun Oil Company around 1967 or 1968 when no permit was required. Respondent purchased the property on which the sign is located in April, 1978. It assumed that Sun Oil had obtained all necessary permits from the state to maintain and use the sign. It did not learn that Sun had failed to obtain a sign permit until the Notice of Violation was issued by DOT in February, 1985. It is willing to repay all fees owed during prior years if DOT will allow the sign to remain.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's sign (facing east and west) be found in violation of the statutes and rules cited in the conclusion of law portion of this order, and that it be removed. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
Findings Of Fact The outdoor advertising sign which is the subject of these proceedings is located on U.S. 1 (State Road 5) approximately 1,029 feet north of Summerland Road in North Key Largo. The outdoor advertising sign is owned and maintained by the Respondent and is visible from the main traveled way of the adjacent roadway. The Respondent purchased the sign from the Daly Outdoor Advertising Company in 1984. The sign consist percents of a ten feet by forty feet plywood sign face supported ]by five four inch by six inch poles which serve as uprights. In addition, the sign has 5 stringers (wooden planks placed in a cross-type fashion on the upright poles to hold the sign face in place). The parties stipulated that the sign, in place prior to 1971, was a "nonconforming sign" as defined by Rule 14- 10.07, Florida Administrative Code. The sign permit number is AK-332-10. In November of 1985, Hurricane Kate traveled through the Keys and damaged the sign. On December 4, 1985, Mr. William Kenney, District VI Outdoor Advertising Administrator, passed the site of the sign and noticed that the face of the structure was blown over In the water. Because the sign was surrounded by water and mud, Mr. Kenney observed the sign from approximately 30 feet away. Although the sign was blown over into the water, the face was intact. The poles which were used to hold the sign face snapped. On December 10, 1985, the Respondent purchased 5 used telephone poles at a cost of $50.00 each and repaired the damaged sign. The poles were used as uprights to support the sign face. On January 8, 1986, Mr. Kenney walked over to the sign and inspected it. In Mr. Kenney's opinion, the replaced upright poles appeared to be longer than the old ones, the stringers appeared to be made out of new wood and the plywood used on the face of the structure appeared to be new. The overall size of the repaired structure appeared to be the same size that it was before being damaged by the hurricane. The sign is located at exactly the same location as it was prior to being blown down. It is standard practice in the outdoor advertising industry for a company to exchange, refinish and replace faces of outdoor advertising signs on a routine basis. By letter dated January 14, 1986, the Petitioner advised Respondent that its sign permit number AK-332-10 was no longer valid and by notice to show cause dated February 14, 1986, the Petitioner advised Respondent that the repaired sign had no valid permit and was illegal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED: That a final order be issued declaring that sign permit AK-332-10 remains valid and dismissing the notice of violation and notice to show cause. W. MATTHEW STEVENSON 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 23rd day of December, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0575T & 86-0966T (consolidated) The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to these cases. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 5. Addressed in Conclusions of Law section. Adopted in Finding of Fact 2. Rejected as subordinate. Rejected as subordinate. Partially adopted in Finding of Fact 3. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Addressed in Conclusions of Law section. Rejected as subordinate and/or not supported by competent substantial evidence. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 9. Adopted in substance in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as argument and/or contrary to the weight of the evidence. Rulings of Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 8. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 6. Rejected as a recitation of testimony. Adopted in substance in Findings of Fact 6 and 9. Adopted in Finding of Fact 10. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 11. Rejected as a recitation of testimony. COPIES FURNISHED: Charles G. Gardner, Esquire -Department of Transportation -Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Charles C. Papy, III, Esquire 201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134 Thomas Drawdy, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, Atlantic Outdoor Advertising, Inc., has erected a sign adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida. Atlantic Boulevard is a federal-aid primary highway, while Southside Boulevard is not. The place where the Respondent erected the subject sign is within 660 feet from Atlantic Boulevard, and this sign is visible from the main-traveled way of Atlantic Boulevard. The subject sign is approximately 300 feet from another sign, owned by Naegele Outdoor Advertising Company, which was permitted by the Department in 1980 and 1981. The Naegele permits are still valid, and they authorize a sign within 660 feet of Atlantic Boulevard on the same side of the road as the Respondent's subject sign. When the Respondent erected its sign it had obtained a building permit from the City of Jacksonville, and it holds a lease to the site where the sign is located, but the Respondent does not have a state permit for its sign and no state sign permit has been applied for by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the outdoor advertising sign of the Respondent, Atlantic Outdoor Advertising, Inc., located adjacent to Southside Boulevard, approximately 346 feet from Atlantic Boulevard, in the City of Jacksonville, Florida, be removed. THIS RECOMMENDED ORDER entered this 18th day of June, 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 18th day of June, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3021T Rulings on Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Rulings on Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted, but irrelevant. Accepted, but irrelevant. Accepted, but irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Paul M. Glenn, Esquire 2900 Independent Square Jacksonville, Florida 32202 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact There is no dispute regarding the facts here involved. SR 60 is a federal aid primary highway and the signs are located within the city limits of Tampa, Florida. No permit has been issued and the sign structure is located 150 feet from a permitted sign. Accordingly the signs violate the spacing requirements of the statutes. This is really the only issue here involved; however, both parties presented evidence and Respondent submitted a proposed recommended order on whether or not an application for a permit for these signs should be approved. Resolving this issue would be premature and result in an advisory opinion. However, to preserve the evidence and save having to repeat the hearing when, and if, Respondent submits an application for a permit the following is submitted. The signs in question were erected within the city limits of Tampa in 1974. At the time these signs were erected no state permit was required. In 1976 an application was submitted for a permit for these signs. This application was returned to the applicant to resubmit on new forms and be sure to complete the application (Exhibit 2). The permitted sign, from which the instant sign is not the required spacing, is located on the right of way of the cross town expressway, and when construction starts, this sign will be removed.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of fact entered into by the parties and the entire record compiled herein, I hereby make the following findings of fact: The two signs and four sign faces (hereinafter, the signs) which are the subject of these proceedings are owned by the Respondent and are outdoor advertising signs as defined in Chapter 479, Florida Statutes. One sign is located on U.S. 1, 1.35 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2294T and 86- 2295T) and the other sign is located on U.S. 1, 1.25 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2296T and 86-2297T) The Respondent purchased the signs from the Daley Outdoor Advertising Company in 1984. The signs are adjacent to and visible from U.S. 1 in Monroe County. U.S. 1 or State Road 5, is a federal-aid primary highway. U.S. 1 was open for public use at the time the notices of violation were placed on the signs. All of the signs are located within 660 feet of the nearest edge of the right-of-way of U.S. 1, State Road 5. The area in which the signs are located is zoned "GU". Mr. William Kenney is employed as the outdoor advertising administrator for the Department of Transportation, District VI. On May 29, 1986, Mr. Kenney inspected the signs and noticed that neither of the signs had a state outdoor advertising permit tag attached. At that time, Kenney placed a notice of violation on each sign face. After placing the notice of violation stickers on the signs, Kenney examined the Department of Transportation's office records pertaining to outdoor advertising signs and found no evidence of permit tags having ever been issued for the signs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued declaring that the signs involved in these cases are illegal and must be immediately removed. DONE AND ORDERED this 14th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 14th day of January, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Charles C. Papy, III, Esquire 201 Alhambra Circle Coral Gables, Florida 33134 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg installed a sign on U.S. 301, 7.19 miles south of I-4 in violation of Rules 14- 10.04 and 14-10.05, Florida Administrative Code. The sign in question is an outdoor advertising, sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years. The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road. Until 1976, the road on which the sign borders was a federal-aid secondary road. Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979. Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign. Both parties agreed to submit the legal issue to the Hearing Officer for determination.
Findings Of Fact Based on the evidence received at the February 8, 1989 hearing, the undersigned makes the following findings of fact: On March 15, 1987, Patricia A. Nelson and her husband, Robert Nelson, erected a two-faced sign on the southeast corner of the intersection of U.S. 98 and County Road 700A in the unincorporated area of Okeechobee County. The sign was placed next to other non-official signs that were already standing on the corner. The Nelsons' sign measured four feet by six feet and cost the Nelsons $400.00 to construct. It advertised on both facings the County 700A Country Store and Patricia's Restaurant and indicated that these establishments were four miles to the east. In early 1988, the Nelsons learned that their sign was located on the right-of-way of U.S. 98, which is part of the federal-aid primary highway system. They therefore moved the sign back two feet, off the right-of-way and on adjacent property which was zoned for agricultural use. The sign, however, was still visible from, and could be read by motorists with normal eyesight travelling both northbound and southbound on, U.S. 98. Richard Hayford has been an Outdoor Advertising Inspector for the Department of Transportation for approximately the past year. His immediate supervisor during this time has been James Dunsford, the Department's District I Outdoor Advertising Administrator. Among Hayford's responsibilities in his capacity as an inspector is to travel the federal-aid primary highways in District I, including those in Okeechobee County, and to look for violations of the state outdoor advertising law. Hayford was performing these duties on May 4, 1988, when he noticed the Nelsons' sign while driving on U.S. 98. Upon a closer inspection of the sign, he observed that it did not have a Department-issued permit tag affixed to it. He therefore determined that the sign was in violation of Chapter 479, Florida Statutes, and posted a notice on the sign indicating that the sign was illegal and had to be removed within thirty days. Hayford did the same with respect to two of the other signs on the corner. Such a notice, however, was not posted on the remaining sign on the corner, which was the largest of the four and gave information about the New Covenant Christian Outreach. Later that same day, May 4, 1988, a Notice to Show Cause was sent to the Nelsons by certified mail. The notice advised the Nelsons that their sign violated Section 479.105(1)(a), Florida Statutes, and that they had to either comply with this statutory provision or request a hearing on the alleged violation within 30 days. The following warning was given to the Nelsons in the notice: In either case if you fail to comply within the thirty (30) day period above, then the described violation(s) shall be considered true and the Department of Transportation reserves the right to take such action as the law permits including, but not limited to, the removal of the sign without further notice. The Nelsons neither removed the sign, nor obtained a permit from the Department to maintain it at its location adjacent to U.S. 98, within the 30-day period prescribed in the Notice to Show Cause. The Department therefore had the sign removed. There was no evidence presented at hearing regarding the cost, if any, of the sign's removal. Although the Nelsons attempted to obtain a form to apply for a permit for their sign shortly after learning of Hayford's allegation concerning the sign's legality, they first applied for such a permit only after the sign had been removed. The application was denied. Among the reasons given for the denial was that the sign would be located on property zoned for agricultural use. During the application process, the Nelsons spoke with District I Outdoor Advertising Administrator James Dunsford on the telephone. Dunsford apprised them during their telephone conversations that they would not be allowed to re- erect their sign at its previous location. By letter dated July 26, 1988, the Nelsons requested a hearing on the issue of whether their sign was in violation of Section 479.105(1)(a), Florida Statutes. They have never sought a hearing on, or otherwise formally challenged, the denial of their application for a permit. Of the signs that stood on the southeast corner of the intersection of U.S. 98 and County Road 700A on March 15, 1987, when the Nelsons erected their sign, only the New Covenant Christian Outreach sign still remains.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding that the Nelsons' sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that it was properly removed in accordance with the provisions of Section 479.105, Florida Statutes. Petitioner, however, should not assess any removal costs against the Nelsons. DONE and ENTERED this 21st day of March, 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Administrative Hearings this 21st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4045T The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Department's Proposed Findings of Fact: Accepted and incorporated in this Recommended Order; Accepted and incorporated, except to the extent that it states that the notice was given on May 14, 1988. The preponderance of the evidence reflects that such notice was given on May 4, 1988; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated; Accepted and incorporated. The Nelsons' Proposed Findings of Fact: Paragraph 1, second and third sentences, to the extent that it suggests that the Nelsons spoke with Dunsford on the telephone. Accepted and incorporated. Paragraph 1, fourth sentence, to the extent that it reflects that Dunsford told the Nelsons that they would be unable to re-erect their sign at its previous location. Accepted and incorporated. Paragraph 2, first sentence, to the extent that it asserts that "there are hundreds of signs on agricultural land." Rejected as irrelevant and immaterial. The Nelsons were cited with a violation of Section 479.105(1)(a), Florida Statutes, and their sign was removed, because they had not obtained a permit for the sign, not because the sign was located on land zoned for agricultural purposes. The Nelsons subsequently attempted to obtain a permit and their application was denied, in part, because the sign would be located on agriculturally zoned property; however, the denial of that application was never formally challenged by the Nelsons and it is not an issue in the instant case. Paragraph 2, first sentence, to the extent that it states that the Department's attorney knew "that violating [the Nelsons'] sign was not right." Rejected as irrelevant and immaterial. Paragraph 2, second sentence, to the extent that it addresses the motive of the Department's attorney in objecting to the admissibility of certain exhibits proffered by the Nelsons. Rejected as irrelevant and immaterial. Paragraph 3, first and second sentences, to the extent that they allege that the Nelsons have been discriminated against as evidenced by the fact that there are "many, many others with signs on agricultur[al] land." Rejected as irrelevant and immaterial. COPIES FURNISHED: Charles Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert and Patricia A. Nelson 22302 Northwest 176th Avenue Okeechobee, Florida 34972 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450
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.
Findings Of Fact By Advertising Sign Permit dated March 4, 1985 (Exhibit 3), Clear Vu Media was authorized to locate a sign with both east and west facing boards on State Road 52, 2- 1/2 miles east of Plaza Drive (Little Road). The permit was issued by Linda K. Brown, outdoor advertising inspector for DOT. Prior to issuing the permit Brown visited the proposed site and approved the location as meeting the requirements for an outdoor advertising sign. Subsequent to the erection of the sign Brown inspected the sign and found the sign to be located on a site other than the approved site. The existing structure is located 890 feet from another existing and permitted sign. The approved site is located at least 1,000 feet from this existing sign and from any other permitted sign along State Road 52. State Road 52 is a federal-aid primary highway. A Notice of Hearing was sent to Clear Vu Media, Post Office Box 2038, New Port Richey, Florida 33552, by U.S. Mail and was not returned as undelivered.
