The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2001.
The Issue The issue in this case is whether Respondent?s Outdoor Advertising Permits should be revoked pursuant to section 479.08, Florida Statutes, because the associated sign has not remained substantially the same, has been disassembled and re-erected, or has been destroyed, as set forth in the Amended Notice of Intent to Revoke.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the State Highway System, the Interstate, and portions of the Federal-aid Primary System. Green?s Wrecker Service, begun in 1947, was one of the first wrecker services in Alachua County. Mr. Allen Green was the owner and operator. There was no precise testimony as to when Mr. Green first erected the advertising sign at issue here, but Mr. Green?s daughter, Pamela, vaguely remembered that happening: Well, I was seven or eight years old. I remember Daddy and Grandpa going down there after they opened up the road. It was woods there and we used to play on our bikes and I remember my Grandmother coming out and sitting beside the road because she was scared we was gonna get onto 301 because it was always woods back there before, and we could ride and we didn?t have her bothering us, you know. So when the woods got cleared out to 301, then, you know, Granny was sitting out there and daddy and grandpa went down there and done something, put that sign up, I guess. Based upon Pamela?s current age and her recollection, it can be roughly calculated that the sign was put up over 40 years ago. It is a small sign, about three feet by six feet, and has the words “Green?s Garage” in red letters and a smaller “Pennzoil” logo in yellow, along with a large arrow pointing toward the business. The sign sits at the intersection of US Highway 301 and 165th Avenue, the business being located about a hundred yards down 165th Avenue. The sign is important to the business because, due to the trees, one cannot see the actual building or cars at the business location from US Highway 301 until one is already at the 165th Avenue intersection, where one can finally see them through the area that has been cleared out for the road. Mr. Green turned the business over to Pamela before he died, and she has operated the business ever since. She subsequently married Mr. Gary Keen. Mrs. Pamela Green Keen incorporated the business as “Green?s Garage and Wrecking Service, Inc.” There was no evidence as to when the subsequent provision of state law or local ordinance with which the sign fails to comply was passed, but the parties stipulated that the sign is nonconforming, so it is clear that the sign was lawful when erected but could not be put up today. The sign was permitted as a wooden sign with a back-to- back configuration and two supports. That configuration has never changed. The sign was assigned tag numbers BE893 and BE894 by the Department. These tags look like small license plates that are posted on the sign and must be visible from the main travel-way. Mr. Tom Simmons is a senior outdoor advertising inspector for Cardno TBE Consultants (Cardno TBE), a contractor for the Department. Cardno TBE manages the outdoor advertising program for the State of Florida. Mr. Simmons has been employed with them for 12 years, and, before that, performed a similar job for four years with the Department. Mr. Simmons oversees 16 counties in northeast Florida, including Alachua County. Mr. Simmons was very credible in his testimony. Mr. Simmons testified that he was aware of the sign: In the due process of traveling from point A to point B on 301, I had seen it before. Like I stated earlier, after you have been out here a long time like I have, when structures disappear and go away, you pick up on it because it?s something that you are looking for constantly. On September 7, 2011, Mr. Simmons took a picture of the sign. It was down on the ground and was not erect. Mr. Keen testified that shortly before this, he had been having problems with vandals. The windshield of his tow truck had been shattered by a man whose car had been towed to Green?s Garage. That man was caught and ultimately paid restitution. A vehicle had also been stolen from Green?s Garage in June, and Mr. Keen or his wife had requested increased sheriff?s patrols at the business address in August, as evidenced by records from the Alachua County Sheriff?s Department. Mr. Keen testified that people often became upset when their cars were towed and that some were vindictive and would resort to vandalism. He said it was an unavoidable consequence of the business, since he towed cars for the Sheriff?s Department and the Florida Highway Patrol. Mr. Keen testified that he goes down 165th Avenue to US Highway 301, right past where the sign is located, almost every day. His testimony that the sign was not down for more than a day is accepted. Mr. Keen?s first action was to look for signs as to who had knocked it down, but he could not find any evidence such as cigarette butts, or cans, or footprints, so he decided it would do no good to call the police. Mr. Keen re-erected the sign. He did not have to reassemble or add to the materials on the sign in any way, since it was still intact. He just put it back up. The Department issued its original Notice of Intent to Revoke Sign Permit for Violation, dated October 26, 2011, alleging that the sign had been abandoned. Respondent denied this in its response to the Department and requested an administrative hearing. The Department did not request an administrative law judge within 15 days of Respondent?s request. Green?s Garage and Wrecker Service is substantially affected by the Department?s intended action to revoke the permits for the sign. If the permit is lost, the sign must be taken down and no new sign can be erected. Almost a year later, on October 18, 2012, Mr. Simmons took a picture of the sign which showed that it was back up in its original location. He testified that it appeared to be the same sign, constructed of the same materials as before. On March 28, 2013, the Department issued Green?s Garage an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules. At all times relevant to this proceeding, the sign remained substantially the same as it was on the date it became nonconforming. Even if it was determined that the sign did not remain substantially the same simply because it was down for a day or two, simply re-erecting the sign when no assembly or construction was required constituted reasonable repair and maintenance of the sign. The sign was never disassembled throughout the time relevant to this proceeding. Less than 60 percent of the upright supports of the sign were physically damaged at any time relevant to this proceeding. One pole was not damaged at all; the other had only very minor damage. The minor damage to one pole was not such that the normal repair practices of the industry would call for that pole?s replacement. Respondent never had an intention to abandon or discontinue the sign at any time relevant to this proceeding. The facts did not show that the sign structure ceased to exist. All the interrelated parts and material -- including the beams, poles, and stringers -- which were constructed for the purpose of supporting or displaying the message remained completely intact and never ceased to exist as an integrated structure.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Amended Notice of Intent to Revoke Sign Permit for Violation and allow the outdoor advertising permits to continue. DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 30th day of July, 2013.
The Issue The issue in this case is whether Petitioner Lamar Advertising Company-Lakeland (Lamar) rebuilt a billboard that it owns on the Florida Turnpike in violation of the law that limits the rebuilding of nonconforming signs.
Findings Of Fact Lamar is the owner of a billboard which displays outdoor advertising and is located on the Florida Turnpike near State Road 91 in Martin County. It is a "back-to-back" billboard with both north-facing and south-facing advertising. The advertising is permitted by DOT Outdoor Advertising Sign Permits 13882 and 13883, and the billboard bears tag numbers CC087 and CC088. The billboard was first built in 1972 and was acquired by Lamar in 1998. The billboard is 549 feet from the nearest sign to the south and 570 feet from the nearest sign to the north. When the sign was built, there were no minimum spacing requirements applicable to signs on the Florida Turnpike, which was classified by DOT as a secondary roadway. Before 1984, the minimum spacing requirement for "federal-aid primary highways" (primary roadways) was 500 feet. In 1984, Subsection 479.07(9), Florida Statutes, was amended to require a minimum spacing between signs on primary roadways of 1,000 feet. Subsection 479.07(9), Florida Statutes (1984), included a provision that not only grandfathered existing signs on primary roadways that were less than 1,000 feet from other signs, but went further to state that such signs, if conforming before the spacing requirement was changed, would not be construed thereafter as nonconforming. The significance of this provision is that signs on primary roadways that were more than 500 feet, but less than 1,000 feet from other signs in 1984, are not subject to Florida Administrative Code Rule 14-10.007(2), which limits the rebuilding of damaged nonconforming signs. In November 1995, the Florida Turnpike was added to the National Highway System. Thereafter, DOT treated the Florida Turnpike as a primary roadway. The reclassification of the Florida Turnpike from a secondary roadway to a primary roadway was not accomplished through a statute or DOT rule. DOT interprets the grandfathering provision in Subsection 479.07(9), Florida Statutes, to apply only to signs that were on primary roadways in 1984 when the 1,000-foot spacing requirement was established. Because the Florida Turnpike was not a primary roadway in 1984, DOT contends that signs on the Florida Turnpike less than 1,000 feet from other signs are nonconforming signs and are subject to the rebuilding limitations in Florida Administrative Code Rule 14-10.007(2). Hurricane Wilma struck Florida in October 2005. Mark Johnson, DOT's outdoor advertising inspector for the area that includes Martin County, testified that in late October or early November 2005, he saw that Lamar's billboard had been seriously damaged. He testified that he saw "everything down" and "poles splintered." He took photographs and made notes about his inspection of the damage. Mr. Johnson said he sent the photographs and notes from his October 2005 inspection to DOT headquarters in Tallahassee. Without explanation, they were not offered into evidence at the final hearing. Mr. Johnson testified that on December 7, 2007, he saw that the billboard was rebuilt. He inspected the billboard on that date, and he believes that the six poles that support the billboard are new poles. He saw and photographed old sign materials, including at least one pole, on the ground next to the billboard. It cannot be determined from the photograph whether the pole on the ground is splintered. Lamar denies that the billboard was destroyed and then reconstructed between October and December 2005. It presented the testimony of its real estate/leasing manager, David Henry, who stated that the billboard was not destroyed by the hurricane, and none of its six support poles were replaced. Mr. Henry showed that none of the leasing or maintenance records of Lamar indicate that the billboard was rebuilt. Neither party seemed to recognize the significance to this dispute of photographs of the billboard taken in August and November 2005. Petitioner's Exhibit 3I is a September 2, 2005, letter from DOT to Lamar, informing Lamar that the billboard had been without advertising for 10 months and was about to be deemed abandoned. One of the photographs attached to the letter and admitted into evidence as Petitioner's Exhibit 3J was taken on August 31, 2005, two months before Mr. Johnson's first inspection. Petitioner's Exhibit 2, which is some general information about Lamar's sign permits that is accessible from DOT's internet website, includes photographs of the billboard taken on November 19, 2005, just after Mr. Johnson's first inspection. To reconcile Mr. Johnson's testimony with the November 19, 2005, photographs, it would be necessary to find that the photographs depict the billboard very soon after it was rebuilt. However, there are no discernible changes in the main structural elements of the billboard as they appear in the November 2005 photographs from how they appear in the August 2005 photographs. The November photographs do not appear to show a billboard that was just constructed. The old sign materials on the ground that appear in photographs taken by Mr. Johnson on December 7, 2005, would not have been visible to him in October 2005 because of the dense vegetation around the billboard that existed in October 2005. Lamar removed much of that vegetation before Mr. Johnson's December 2005 inspection.1/ The old sign materials could have been there long before October 2005. Lamar removed the advertising sign facings from the billboard when Hurricane Wilma was approaching to avoid damage to the sign facings and billboard and replaced the sign facings before Mr. Johnson's December 2005 inspection. Mr. Johnson appeared to be a credible witness, but he might have been confused by Lamar's temporary removal of the sign facings from the billboard and the clearing of vegetation that exposed old sign materials on the ground next to the billboard. On this record and without Mr. Johnson's October 2005 photographs that purport to show Lamar's billboard to be substantially destroyed, DOT failed to prove that more than 50 percent of the structural materials in the billboard was replaced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order rescinding its Notice of Intent to Revoke Sign Permit regarding Outdoor Advertising Sign Permits 13882 and 13883. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2007.
The Issue Whether DOT should void outdoor advertising permits Nos. AT402-35 and AT403-35?
Findings Of Fact On March 20, 1987, (T. 12) DOT issued advertising sign permits to respondent, Nos. AT 402-35 and AT 403-35, authorizing construction of a metal outdoor advertising sign "monopole" 43 feet high with sign boards facing north and south, less than a tenth of a mile south of Alternate U.S. Highway 90, a "federal aid primary road" (T. 11), immediately west of State Road 297 in Escambia County. DOT's Exhibit No. 1. In May of 1988, Outdoor Media, Inc., applied for a permit to construct an outdoor advertising sign at a site five or six hundred feet east of the intersection of State Road 297 and Alternate U.S. Highway 90. Because the site proposed by Outdoor Media, Inc., is visible from and lies within 660 feet of the main traveled way of Alternate U.S. Highway 90 and because it lies within 1,000 feet of the site on which DOT had authorized Salter to erect signs, DOT denied Outdoor Media, Inc.'s, application. When Philip N. Brown, who works in DOT's outdoor advertising section, reported that no sign had ever been built at the site for which Salter had obtained permits Nos. AT402-35 and AT403-35, DOT notified Salter of its intent to void and revoke the permits. DOT's Exhibit No. 2. Some time after June 19, 1988, more than 18 days after DOT sent Salter notice of its intent to void the sign permits, Salter erected a wooden sign on the site. On March 10, 1988, Salter had obtained a building permit from Escambia County for the metal monopole structure, but, because more than 180 days had elapsed without any call for inspection, Escambia County declared the building permit null and void on September 23, 1988.
The Issue The issues in this case are whether Respondent should revoke Petitioner's sign permits and retrieve Petitioner's permit tags because Petitioner violated Sections 479.07(5) and 479.08, Florida Statutes, 1/ and Florida Administrative Code Rule 14- 10.004(7), 2/ by allegedly removing its sign from its property and by failing to display the permit tag prior to removing the sign.
Findings Of Fact Petitioner is a Florida corporation formed in 1983 by Mr. Rodney Forton. Mr. Forton is the president and sole shareholder of Petitioner. Sometime in 1987, Petitioner entered into a management agreement with Cotee River Outdoor Advertising Company ("Cotee River"). The management agreement provided that Cotee River would construct a sign on property owned by Petitioner on U.S. highway 19 in New Port Richey, Florida (the "Cotee River sign"). Cotee River agreed to pay Petitioner a portion of the advertising revenues from the sign. The Cotee River Permit On May 26, 1987, Cotee River applied for an outdoor advertising sign permit from Respondent. The application described the Cotee River sign as a rectangular wood sign measuring 10 feet by 20 feet, with its lowest point approximately 15 feet above ground level and its highest point approximately 25 feet above the crown of the road. Respondent approved the application and mailed the approval to Cotee River on May 29, 1987. On June 3, 1987, Respondent located the Cotee River sign in Respondent's sign inventory at, Section 595, ". . . N/B 5.06 in F/N." The number "5.06" indicates that the sign is located at milepost 5.06 on U.S. 19. 3/ Mileposts describe the location of each sign by the distance of the sign from a fixed point. Each of Respondent's outdoor advertising inspectors measures the milepost for each sign in his or her territory using a distance measuring instrument. Respondent then enters the milepost for each sign in Respondent's sign inventory. The milepost of 5.06 that Respondent assigned to the Cotee River permit was incorrect. In May 1987, Cotee River constructed a sign on Petitioner's property pursuant to the permit granted by Respondent. The sign was a metal monopole sign rather than the wood sign described in the application. The Cotee River sign was not constructed at milepost 5.060. Cotee River rented the sign to outdoor advertisers. However, Cotee River failed to pay any portion of the advertising revenue to Petitioner, and the parties resolved the matter by mutual agreement. Petitioner and Cotee River agreed that Cotee River would release its right to manage the Cotee River sign in consideration for the right to manage a sign located on other property owned by Petitioner. The agreement provided that Petitioner would pay Cotee River a prescribed sum in exchange for the performance of specific duties by Cotee River. Cotee River failed to perform the duties specified in the agreement. Petitioner refused to pay the balance of payments. Petitioner sued Cotee River. Cotee River went into bankruptcy and was dissolved. Petitioner's Permit On July 14, 1992, Petitioner applied for an outdoor advertising sign permit for the Cotee River sign. The application described the sign as an existing rectangular, metal, monopole "sign in place," measuring approximately 10 feet by 20 feet. The application stated that the sign was first erected in May 1987. Respondent approved the application from Petitioner and mailed the approval to Petitioner on October 12, 1992. Respondent again incorrectly listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/B 5.060 in F/N." Respondent issued permit tag number BG341-25 to Petitioner. Although Petitioner used the Cotee River sign to generate advertising revenue, Petitioner never displayed any tag numbers on the sign. The tag numbers remained in Petitioner's files until sometime in 1995. Dr. Goluba's Permit At about the same time that Cotee River went out of business in 1992, Robert L. Goluba, D.D.S., owned property immediately adjacent to Petitioner's property. Prior to March 1993, an unidentified representative of Respondent contacted Dr. Goluba. The representative told Dr. Goluba that there were two signs on Dr. Goluba's property that were going to be taken down if the sign permits were not renewed. The representative mistakenly identified one of the two signs as the Cotee River sign. The representative went on to explain that Respondent could avoid the expense of taking down the two signs if Dr. Goluba obtained permits for the signs. Dr. Goluba wanted the advertising revenues and agreed to obtain the necessary permits. On March 2, 1993, Dr. Goluba applied for a sign permit for the Cotee River sign he mistakenly believed to be located on his property. The application described the sign as an "existing" rectangular, metal, monopole sign measuring approximately 10 feet by 24 feet, with its lowest point approximately 18 feet above ground level and its highest point approximately 30 feet above the crown of the road. The application stated that the sign was first erected in May 1987. Respondent approved the application from Dr. Goluba and mailed the approval to him on March 8, 1993. Respondent listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/M.P. 4.870 in F/N." Respondent incorrectly listed Dr. Goluba's permit in the sign inventory at milepost 4.870. On March 24, 1993, Respondent issued permit number BG960-35 to Dr. Goluba. Although Dr. Goluba never derived advertising revenue from the Cotee River sign, he did display his permit on the sign. Dr. Goluba inadvertently failed to pay the fee required to renew the sign permit in 1994 and, therefore, failed to display current permits on the sign. On April 11, 1994, Respondent issued a Notice of Violation, Failure To Display Permit Tag. The New Outdoor Advertising Inspector In early 1995, a new outdoor advertising inspector assumed responsibility for the territory in which the Cotee River sign was located. On April 11, 1995, the inspector conducted a field inspection to verify the mileposts and signs in the territory for which he was responsible. The inspector correctly identified the milepost of the Cotee River sign as milepost 4.980. He found no sign subject to regulation by Respondent 4/ located at milepost 5.060. Milepost 5.060 and 4.980 are approximately 422 feet apart. Relevant law prohibits the location of regulated signs within 1,000 feet of each other. 5/ No exceptions to 1,000 foot prohibition applied to the Cotee River sign. The inspector concluded that Petitioner had removed the wood sign originally permitted to Cotee River in 1987 and which Respondent had incorrectly listed in its sign inventory as being located at milepost 5.060. On July 12, 1995, Respondent issued to Petitioner a Notice Of Violation -- Removed Sign. On August 22, 1995, Respondent ordered the revocation of Petitioner's tag permit because Petitioner had allegedly removed the Cotee River sign from milepost 5.060. Respondent never issued a Notice of Violation to Petitioner for failure to display his tag numbers on the Cotee River sign. Petitioner protested the revocation of its permit and refused to return the permit tags to Respondent. Petitioner requested an administrative hearing. In the meantime, Dr. Goluba's accountant had inadvertently failed to pay the permit fee for the Cotee River sign. Respondent placed the Cotee River sign on Respondent's "cutdown list" for failure to pay the required fees. On June 20, 1995, Respondent had the Cotee River sign cut down and removed. Respondent sent Dr. Goluba a bill in the amount of $4,990 for the cost of cutting the sign down and removing it. Prior to the date Respondent cut down and removed the Cotee River sign, Petitioner notified the inspector verbally and with written documentation that the sign was owned by Petitioner, located on Petitioner's property, and permitted to Petitioner. The inspector found that Respondent's records did not agree with Petitioner's records. The inspector informed Petitioner that the "cutdown order" came from Tallahassee and there was nothing the inspector could do. Dr. Goluba's tags were displayed on the Cotee River sign at the time it was cut down and removed. Ms. Maria Passanisi was the broker who managed the sign for Dr. Goluba. Ms. Passanisi was at the site when the sign was cut down and removed. She protested Respondent's action so vehemently that the police officers regulating traffic at the scene had to intervene to quell the disturbance. After Respondent cut down the Cotee River sign, Petitioner drove a stick into the ground where the sign had been located and displayed the permit tags for the removed sign on the stick. The tags were displayed on the stick at the time of the hearing. The Computerized Sign Inventory Respondent uses a computer system to maintain its sign inventory. The computer system does not accept the same milepost for two or more regulated signs. When Petitioner applied for its sign permit in 1992, Respondent was required to carry the Cotee River permit in the inventory as a void permit. The computer system would not accept the same milepost for Petitioner's permit and the void Cotee River permit. In order to circumvent the computer system, Respondent's supervisor of property management arbitrarily changed the milepost number entered for the Cotee River permit from milepost 5.060 to milepost 4.970. As late as September 20, 1993, Respondent's computerized sign inventory identified the Cotee River sign as being located at three incorrect mileposts. The inventory located the same sign permitted to Cotee River, Petitioner, and Dr. Goluba, respectively, at mileposts 4.970, 5.060, and 4.870. In 1995, the new outdoor advertising inspector correctly located the Cotee River sign at milepost 4.980. However, he mistakenly assumed that milepost 5.060 was the correct milepost for Petitioner's sign and erroneously concluded that Petitioner had removed its sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner did not remove the permitted sign and that the permits issued to Petitioner are valid. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of July, 1997.
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.
The Issue The central issue in this case is whether the Respondent is entitled to a sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether the sign which has been erected at that location is in violation of applicable provisions of Chapter 479, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs. The Respondent owns or controls an outdoor advertising sign (subject sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the centerline of I 4. The sign face and direction of the subject sign are visible from I 4 following that route as it is normally traveled, i.e. on the main-traveled way. The subject sign is no more than 480 feet from the interchange at Fairbanks and I 4. The subject sign was erected in June, 1979, when SR 424 was not designated a federal aid primary road and a state permit was not required. On May 17, 1979, the Department's then district sign coordinator issued a letter to Respondent in response to Creative Media's sign permit application which provided that "a state permit is not required at this time." (e.s.) The Respondent's application in 1979 specified that the sign location was not within city limits which is presumed true for purposes of this record. Further, the 1979 application specified that the sign would be located .1 of a mile (presumably 528 feet) from the intersection. That description of the proposed sign is also presumed true. Subsequently, Fairbanks became a part of the state highway system and a requirement for outdoor advertising permits for signs erected along that roadway became effective. The sign face for which the present permit is sought is within 500 feet of the I 4 interchange. On January 30, 1990, Inspector Dollery photographed the subject sign which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental Apartments at Heathrow". When Inspector Dollery visited the location on January 3 and 4, 1991, the sign face was painted white with only a telephone number (425-5100) depicted. On February 5, 1990, the Department's current district outdoor advertising administrator issued a notice of alleged violation regarding the subject sign. On February 26, 1990, the Respondent filed an application for a permit for the sign face in dispute. The 1990 application acknowledged that the sign was 480 feet from the I 4 intersection. The Department returned the application as not meeting the spacing requirements for signs facing I 4 and for being less than 500 feet from the interchange. POA Acquisition, an outdoor advertising company, holds permits for signs located on I 4 which are within 1500 feet of the subject sign.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign in violation of the rule as set forth in the notice of alleged violations dated February 5, 1990, and denying the permit application of the Respondent. DONE and ENTERED this 22nd day of April, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1991. APPENDIX TO CASE NO. 90-2193T RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 3 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: The six unnumbered paragraphs are addressed in the order presented. The first paragraph is accepted. The second paragraph is accepted. The first sentence of the third paragraph is accepted. The second sentence of the third paragraph is rejected as contrary to the weight of the credible evidence or irrelevant if intended to establish that a DOT official told Mr. Fekete to retain paperwork. The fourth paragraph is rejected as contrary to the weight of the credible evidence. If the sign had been constructed as represented on the application, the fifth paragraph could be accepted; however, Respondent did not build the sign as stated in the 1979 application nor can it be determined from this record whether the spacing requirements along I 4 could have been met in 1979. Certainly, for a sign facing on Fairbanks, the spacing requirements could have been met. The distance from the interchange is ultimately why Respondent's application would have failed in 1979 if accurately requested. Consequently, as drafted, the fifth paragraph must be rejected as contrary to the weight of the evidence. The sixth paragraph is accepted. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Gerald S. Livingston Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, Florida 32801 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S.58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether the Respondent is in violation of Sections 479.07(1)(2)(4)(6) and 479.02, Florida Statutes.
Findings Of Fact A notice of alleged violations was sent to Respondent dated October 27, 1975 stating that pursuant to the applicable provisions of Chapter 479, Section 335.13 and Section 339.301, Florida Statutes, and pursuant to the provisions of Section 120.57, Florida Statutes, the Respondent was notified that the sign structures owned by him were in violation of provisions of Chapter 479, Sections 335.13 and 339.301, Florida Statutes. The subject signs were identified as follows: Copy: Aucilla Plaza Church - Gas Location: 2/10 miles north Junction I-10 Highway: State Road 257 Copy: Credit Cards Honored - Chevrolet 60 9/10, Supr. 65.0 Location: 2/10 miles north Junction I-10 Highway: State Road 257 Prior to the hearing a letter was received from an attorney for the Respondent, Ike Anderson, stating that the Respondent was willing to take down all of the signs and that a hearing was not needed. No Motion for Dismissal was made and no continuance or dismissal was ordered. By letter to the Petitioner, Department of Transportation, the Hearing Officer advised of the receipt of such communications, but no response was received from Petitioner. The hearing was called to order and the witness for Petitioner testified that the signs have been removed except the copy of one of the signs is leaning in the approximate same location against the fence. The poles from which the signs were erected are left standing in the same location. The Hearing Officer further finds: That poles standing alone do not constitute a sign; That a facing of a sign leaning against a fence with the face away from a highway does not constitute a sign. It is the duty of the Department of Transportation under Chapter 479, F.S., Chapter 335, F.S., and Chapter 339, F.S., to enforce the outdoor advertising laws of the State of Florida and that the Respondent, John Taylor, has had a hearing, as provided in Chapter 120, F.S., and as provided in Section 479.17, F.S., and Section 335.13, F.S.
Recommendation Enter an order requiring the removal of outdoor advertising signs erected at this location. DONE and ORDERED this 13th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. John Taylor Route 1, Box 142 Monticello, Florida 32344 Ike Anderson, Esquire P. O. Box 56 Monticello, Florida 32344
