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 The issue in this case is whether Petitioner is entitled to an outdoor advertising sign permit to be located in an unzoned commercial/industrial area and whether the sign site qualified as an unzoned commercial/industrial area.
Findings Of Fact Lamar is in the business of erecting, operating and maintaining outdoor advertising signs in Northwest Florida. The proposed sign’s location was in Walton County along US Highway 331, .1 mile south of Bay Grove Road, a collector road. U.S. Highway 331 is a federal aid primary highway and therefore, a state permit is required for signs placed along its path. According to a Walton County zoning plan, the proposed sign’s location was in an area zoned Rural Village on both the Future Land Use Map and Land Development Regulations. The June 2006 version of the Walton County Land Development Code provides: F. Rural Village (RV): This district is a mixed use district which permits predominately residential development up to a maximum of two units per acre. Residential uses shall account for approximately 95 percent of the total land area within any area designated on the FLUM for this District. The remaining area may be utilized for related and compatible commercial uses. Commercial uses may occupy up to five percent of the total land area designated on the FLUM for this District. Commercial land uses shall be limited to collector and arterial road intersections, intersections of subdivision collectors and arterial or collector road, and areas that are specifically designated Commercial on the FLUM. Not more than 15 percent of the total frontage on both sides of a collector or arterial road shall be occupied by commercial uses within this district. The Walton County Land Development Code also defined general commercial activity as including inventory storage. The proposed sign’s location met the requirements for commercial use under the RV designation. Walton County certified to the Department that the designated parcel for the proposed outdoor advertising sign was Rural Village and that the primary use of the area under the current comprehensive plan was agriculture, general agriculture, residential, civic uses, and residential subdivision. Walton County also confirmed that the proposed outdoor advertising sign would be in compliance with all duly adopted local ordinances and would be issued the necessary County permit for such sign. The Walton County Property Appraiser’s website listed the usage of the proposed outdoor advertising sign location as a “service station.” The service station building was still on the property, but had not been used as such for a number of years. Billy Wayne Strickland, the state outdoor advertising administrator of the Department, processed the outdoor advertising permit applications submitted by Lamar. Mr. Strickland determined after a review of Lamar’s applications that the site, being designated as Rural Village with mixed uses allowed, met the need for evaluation under the use test for unzoned commercial or industrial areas contained in Chapter 479, Florida Statutes. The use test is set forth in Florida Statutes 479.02. Under the test, the Department examines a proposed sign’s location under the applicable current land use designation and future land use designation to determine if the outdoor advertising site meets the use criteria set forth in the statute for unzoned commercial and industrial areas. The use criteria for such unzoned property require that three commercial or industrial activities be located within 1600 feet of each other, with one of those activities located on the same side of the road and within 800 feet of the proposed sign’s location. Distances are measured from building to building. Additionally, the commercial or industrial activity must be visible from the highway. Mr. Strickland visited the property in order to determine if the proposed sign location met the requirements of the use test. He observed that the proposed sign’s site holds an abandoned-looking gas station and a house with a large fenced in area. Leaking fuel tanks made it unlikely the service station would be restored. There were several small, boarded-up, “fishing style cabins” associated with the fenced property. The fenced area had a sign posted for North Florida Development, Inc., a construction company. There was a number for the company listed on the sign. On a tree to the right of the fence was a sign that read “Private Road Keep Out.” In general, the area behind the fence appeared to be used for storage of building materials and equipment such as trucks and trailers. Except for the area behind the fence, the North Florida Development property was clearly visible from the highway. Mr. Strickland called the phone number on the sign and was informed that North Florida Development, Inc., that he was calling, was in Miramar Beach, Florida, and that North Florida Development was storing equipment and trucks at the U.S. Highway 331 location for a job they were doing in Destin. There was no one present at the house or the adjacent buildings. The North Florida Development buildings and fenced area were within 800 feet of the proposed sign’s location and were on the same side of the road as the proposed sign’s location. Because of the lack of activity, Mr. Strickland concluded that the North Florida Development property was not a commercial activity which was visible from the highway. On the opposite side of the Highway, Mr. Strickland observed two businesses within a 1600-foot zone that met the criteria of the use test. Additionally, while at the site, Mr. Strickland issued a Notice of Violation for the on-premises sign of North Florida Development. The Notice required the sign to be removed. Later, after the hearing in this matter, this action was dismissed by the Department. On November 29, 2006, the Department issued a written denial of the outdoor advertising sign site permit applications for the following reasons: (1) the sign site was not permitted under the local land use designation of site per Section 479.111(2), Florida Statutes, and (2) the sign site did not qualify as an unzoned commercial/industrial area per Section 479.01(23), Florida Statutes. On the morning of April 5, 2007, Mr. Strickland, again visited the proposed sign’s site. He observed essentially the same things he observed during his first visit to the location, except the large North Florida Development sign that had been on the entrance to the fenced area had been removed. Andrew White, a regional inspector with the Department, inspected the North Florida Development site on May 17, 2007, and photographed the area. The sign for North Florida Development had been removed, but the keep-out signs were still in place. Photographs taken from the street revealed a partial view of a storage trailer through the open fence. On the morning of June 6, 2007, just prior to the hearing, Mr. Strickland again visited the proposed sign’s location and observed no activity at the location. He could only see a trailer partially visible beyond the privacy fence. Larry Wayne Adkinson, vice president of North Florida Development and a general contractor licensed in Mississippi, lives and works on the property of the proposed sign’s location. Mr. Adkinson testified that the property totaled five and a-half or six acres and consisted of his home, his office, the service station and five fishing cabins. He and his business have been at this location for at least 12 years. Work has been delayed on repairing the service station based, in part, upon the fact that the state was seeking to condemn a portion of the property where the service station was located for the expansion of U.S. Highway 331. Mr. Adkinson uses the property as an inventory site, storing construction materials, heavy equipment, landscaping materials, and other bulk material related to his business. The site contained three semi-tractor trailers that were utilized to store construction materials, including doors, windows, and heavy equipment and equipment and materials for a landscape business owned by Mr. Adkinson. The landscape business stored tractor-trailers, small-equipment trailers, plants, brick pavers, scaffolding and rock molds. The site’s storage of inventory and business activity was very visible to people who lived in the neighborhood around the North Florida Development property. The visibility was such that, in 2006, the neighbors complained about the view to the County. The County, in turn, asked Mr. Adkinson to place a fence around the area to block the view of people passing through the area. Mr. Adkinson complied with the County’s request and built the privacy fence that Mr. Strickland observed. Mr. Adkinson also placed the company’s business sign on the fence to identify the property as North Florida Development’s business property. Most of the loading and unloading of material and equipment occurs in the early morning and evening hours. At those times, there is considerable activity at the site with trucks and equipment entering and leaving the property. Mr. Adkinson’s testimony was confirmed by the testimony of Chad Pickens, who routinely drives by the site during those hours. Mr. Strickland never visited the property during those busy hours, and therefore, did not observe the business activity associated with the site. Mr. Adkinson uses two of the fishing cabins as machine shops for his company’s equipment and tools. The shops contain drill presses, welding and repair equipment. Entry is gained through the rear doors of the cabins. He left the front of the cabins boarded up to prevent theft and storm damage. Mr. Adkinson also receives business mail at the U.S. Highway 331 location and has employees and job applicants report to that location. Clearly, the North Florida Development property is a viable and on-going business that conducts one of its business activities on the property on which the proposed sign is to be located. The activity is visible from the highway, although such activity ebbs and flows through the day. The property, therefore, meets the land use test requirements of Florida Statutes, and the Petitioner’s applications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Department of Transportation enter a Final Order granting the applications for outdoor advertising sign permits filed by Lamar Advertising of Fort Walton Beach. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 13th day of December, 2007. COMPLETE COPIES FURNISHED: Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James E. Moore, Esquire Post Office Box 1622 Crestview, Florida 32536 David M. Littlejohn, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
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.
The Issue Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue Whether the sign of Petitioner, White Advertising International, should be removed by the Respondent, Department of Transportation, for violation of Section 479.07(1) and Section 479.11(2), Florida Statutes, and the rules and regulations promulgated thereunder.
Findings Of Fact A notice of violation was sent by the Respondent, Department of Transportation, to the Petitioner, White Advertising International, on March 21, 1977, citing an outdoor advertising sign owned by the Petitioner located 1.97 miles west of U.S. #1, State Road 50 E/B with copy "Real Estate Service." The violation noted that the sign violated Section 479.071(1), Florida Statutes, and Rule 14ER77-09 (now Rule 14-10.04) and Section 479.11(2), Florida Statutes, and Rule 14ER77-10, 11 (now Rule 14-10.05 and 14-10.06). There is no dispute as to the location or copy or ownership of the subject sign. It is not in a zoned business, commercial or industrial area and is outside an urban area. The sign does not conform to the current setback requirements. The sign has a permit tag dated 1971, the only permit tag on the sign. No application was alleged to have been made for permit or annual fee paid or offered subsequent to 1971 until the application noted in 4, infra. A sign permit application and annual renewal was processed by White Advertising International dated January 21, 1977. The application was an annual renewal for the year of "19 72-1976." The printed application form stated that, "The signs listed above meet all requirements of Chapter 479, Florida Statutes. Respondent, by its outdoor advertising section administrator, refused to grant the permit on the grounds that the sign which had been erected prior to the enactment of the current setback regulations and probably in the year 1967 had had no application for permit or annual fee paid since 1971 and therefore having become an illegal sign, no permit could be issued. The Petitioner sign company introduced into evidence a letter dated February 28, 1977, from Respondent, Department of Transportation, through its property management administrator which indicated that the State had previously contended the subject sign was built on an unplatted street and had to be removed without compensation but that it was discovered such was not the case and that the State then offered to reimburse Petitioner for relocation costs. Petitioner did not remove the sign and the letter states that the current position of the Respondent State is: That the sign is on the right of way, contrary to Section 339.301, Florida Statutes; Has no current permit; contrary to Section 479.07(1), F.S. Violates Section 479.13, Florida Statutes, as having been constructed, erected, operated, used and maintained without the written permission of the owner or other person in lawful possession or control of the property on which the sign is located; and The sign therefore is an illegal sign and must be removed by Petitioner without compensation. Respondent contends: that the sign is illegal, having failed to be permitted since the year 1971; that it has one pole of the sign pole on the right of way contrary to Section 339.301; that it has no lease contract as required by Section 479.13; that Respondent has no authority to renew delinquent permits; that once a sign becomes illegal a new permit cannot reinstate its nonconforming status. Petitioner, White Advertising International, contends: that it should be granted a permit inasmuch as permits for some signs had been granted by the Respondent although the annual permit fee was not timely made.
Recommendation Remove subject sign if the same has not been removed within thirty (30) days from the date of the Final Order. DONE and ORDERED this 6th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire White Advertising International Post Office Box 626 Titusville, Florida
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
Findings Of Fact The 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 The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 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 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Larry Brummitt owned a sign on U.S. 90 in Greenville, Florida advertising Country Corner for which he held a permit for seven or eight years. U.S. 90 is a federal-aid primary highway. Mr. Brummitt desired to rebuild and relocate this sign a short distance from its authorized location and, to insure he did things properly, sought advice both from the advertising sign inspectors at Lake City and from the State Administrator of the Outdoor Advertising Section in Tallahassee. At both places he was told that be could not get an application for a new sign approved until his existing sign was removed because the new sign would violate the spacing requirements of Rule 14D-10.06(b)3, Florida Administrative Code while the existing sign was up; that an application would not be accepted while the former sign was standing; that the policy of the Department, when conflicting interests desired to erect signs where only one could be erected, was the person whose application was first received would be approved. The Department's long-standing policy, which was memorialized in a memorandum to all District Outdoor Advertising Sign Administrators in 1978, is that where conflicting applications for signs are received, the first submitted will be approved. Relying upon this information, Petitioner prepared his application, removed the old sign, and at 10:00 a.m. on 2 June 1980 presented his application to Respondent for a permit to erect his replacement sign. On 24 March 1980 American Sign and Indicator Company first approached Respondent's sign inspector to inquire about erecting a time and temperature sign for the Bank of Greenville. They were told that a permit for such a sign could not be issued because it would be within 500 feet of the Country Corner sign and would violate the spacing requirements unless Brummit's sign was first moved. At 1400 hours on 2 June 1980 American Sign and Indicator Company presented an application at the Lake City Headquarters of Respondent for a permit to erect a time and temperature sign at approximately the same location earlier requested by Brummitt. In his letter of 11 June 1980 the District Administrator, Outdoor Advertising, in Lake City advised Mr. Brummitt that his application was being disapproved and of his right to petition for an administrative hearing within 14 days or the denial would become final. As reasons for denying the application the letter stated: The application indicates the proposed location would be within 500 feet if a proposed time and temperature display to be erected by the Bank of Greenville in the County of Madison. The Bank of Greenville has been dealing in good faith with the Department to erect this display since January 5th, 1980. After obtaining the necessary criteria and additional expenses accrued, the Department feels the bank should be allowed to erect the display, because we feel they were the first applicant. When questioned by the Hearing Officer how Respondent "reasoned" the bank's application was received prior to Petitioner's application, the District Sign Inspector acknowledged that he had discussed these applications with the Chief Right-of-Way Agent in District 2, Mr. Bielling, under whose supervision the Outdoor Advertising Section comes, that Mr. Bielling is his boss and tells him what to do (Tr. p. 24-25) and that as far as the sign inspector is concerned, Mr. Bielling has the prerogative to change DOT policy.
