Findings Of Fact Petitioner's predecessor in interest leased property along the I-275 in October 1973 (Exhibit 3) and erected an outdoor advertising sign thereon. One witness testified that at the time this sign was erected in 1973 there was no other sign within 500 feet of this sign. The sign was erected within the city limits of Tampa, Florida and no permit other than a city building permit was required for this sign. In 1974 DOT required permits for all signs including those located within city limits, but no fee was collected for the permits issued for signs within the city limits. This regulation was not enforced by DOT until 1976- 1978, although in 1974 DOT had advised sign owners that permits were required for all signs and how they were to apply for permits for those signs located within the city limits (Exhibit 4). In 1975 National Advertising Company, in accordance with DOT instructions for obtaining permits for signs located in incorporated areas, submitted a renewal application in which it listed the sign located within 500 feet of Petitioner's sign (Exhibit 5). When no permit was issued by DOT, National Advertising Company, by letter dated September 1, 1977 (Exhibit 6), called to DOT's attention that they had not been issued permits for signs within city limits for which they had applied. Application for a sign permit for their sign along the I-275 located within 500 feet of Petitioner's sign was submitted by National Advertising Company on 31 March 1980 (Exhibit 7) and approved by DOT. This application showed the sign to have been erected prior to 1972. At this hearing Petitioner introduced as Exhibit 1 a copy of an Advertising Sign Permit application dated 9-1-76 executed by its predecessor in title, Martin Outdoor Advertising Company. The only indication on this application that it was received by Respondent is a received stamp dated April 15, 1980. During the period 1976-1979 considerable confusion existed in the outdoor sign industry respecting permits for signs and particularly for those signs located within city limits despite notification to sign companies (Exhibit 4). In an effort to clarify the situation, Respondent sent out circulars with the annual renewal notices advising all sign owners that signs along Interstate and Federal Aid Primary Highways within incorporated towns and cities required permits. In the circular dated December 18, 1978 (Exhibit 8), sign owners were told to submit applications for all unpermitted signs prior to February 17, 1979, and that failure to do so could result in the removal of the unpermitted signs. This was followed up by another circular dated October 31, 1979 (Exhibit 9) in which the deadline for applying for permits for those unpermitted signs was extended to January 1, 1980. Neither of these circulars which were enclosed with renewal notices were delivered by Petitioner's mail room to Petitioner's real estate section. Instead, they were forwarded to accounting with renewal notices. Upon an inspection of signs along the I-275 in March 1980, Petitioner's sign was observed without a permit and in violation of the spacing requirements. Notice of alleged violation dated 3 April 1980 was forwarded to Petitioner (Exhibit 10). Petitioner then applied for a permit for the sign which was disapproved and request for this hearing followed.
The Issue Whether the subject sign of Respondent is a lawful sign for which Respondent should be compensated upon its removal.
Findings Of Fact Respondent, David Grover, owns a V-shaped billboard with a north face and a south face located outside any incorporated city or town 0.14 mile south of State Road 518 on Highway A1A, a federal-aid primary highway, advertising "Sun Harbor Nursery" on both faces of the sign. The nursery advertised on the billboard is a business owned by Respondent located approximately one half mile from the subject sign. (Transcript, page 53.) A violation notice dated July 15, 1981 was Served on Respondent alleging that the subject sign is in violation of Section 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, because it was erected without a permit; and that it is also in violation of Section 479.02, Florida Statutes, and Rule 14-10.06(1)(b), Florida Administrative Code, because it is located within 500 feet of a permitted sign. Respondent's father, David Grover, Sr., erected the V-shaped billboard in 1961 without a permit and maintained it until he sold the land on which it is located to his son in 1974. (Transcript, pages 31-35.) No application for a permit from the Petitioner Department was made during the time David Grover, Sr. owned the land and sign or since Respondent owned the property until 1981, when an application was denied because permits had previously been issued for other nearby signs. (Transcript, pages 43 and 46.) There is a distance of approximately 118 feet between the south face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. There is also a distance of approximately 118 feet between the north face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. (Petitioner's Exhibit 1; Transcript, pages 14, 15 and 41.) Subsequent to the hearing Respondent admitted that his sign is in violation of the statutes and rules requiring a space of 500 feet from a permitted sign but contends the sign is a lawful sign having been grandfathered by the passage of time since its erection in 1961 and therefore he is entitled to compensation upon its removal. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the testimony adduced, the evidence admitted and after consideration of the findings of fact and conclusions of law submitted by the parties, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within thirty (30) days from the date hereof and without compensation to the sign owner. DONE and ORDERED this 20th day of January, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Peirce Wood, Esquire 542 Hammock Road Melbourne, Florida 32901 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue is whether a billboard structure is in compliance with Chapter 479, Florida Statutes.
Findings Of Fact The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the nearest edge of the State Highway System, interstate, or Federal-Aid Primary system in accordance with Chapter 479, Florida Statutes. Lamar is in the business of providing outdoor signs for entities wishing to advertise. Lamar owns the sign at the northeast corner of the intersection of Betton Road and Thomasville Road in Tallahassee, Leon County, Florida. The sign was built in 1980 and rebuilt in June 1997. The sign has two sides. One side faces Betton Road, and is visible only to persons on Betton Road. The Department does not assert that a permit is required for that side. The other side of the sign, facing to the west, is within 660 feet of Thomasville Road, which is also referred to as State Route 61, and is visible from Thomasville Road. In 1974, State Route 61 was known as U. S. Highway 319. It was a Federal-Aid Primary route. On June 24, 1974, a road denominated Capital Circle located on the outskirts of Tallahassee, was designated U.S. Highway 319. Thomasville Road although no longer a part of U.S. Highway 319, continued to bear the name State Route 61 and remained a Federal-Aid Primary route. In 1983 the Federal Highway Administration listed both Capital Circle and State Route 61 as Federal-Aid Primary routes. In 1991, the Federal Highway Administration created the National Highway System and ceased using Federal-Aid Primary designations. State Route 61, also known as Thomasville Road, nevertheless remained a Federal-Aid Primary road for outdoor advertising classification purposes at all times pertinent to this case. For federal highway identification purposes, the road is currently in the Surface Transportation Program. Prior to May 23, 1996, Lamar held an outdoor advertising permit pursuant to Section 479.07, Florida Statutes, for this sign. The sign was assigned tag number BG 518-35. On May 23, 1996, the Department issued a "Notice of Violation--Signs for Which Permits Have Been Issued," addressing permit number BG 518-35. This notice indicates that it was sent to Lamar via registered mail, return receipt requested. It informed that the sign was in violation of Chapter 479, Florida Statutes, or Florida Administrative Code Chapter 14-10 because the sign: "May not be maintained without permission of the person lawfully controlling site (479.11(9), FS)." On July 31, 1996, in a letter signed by District Outdoor Advertising Manager Vicki L. Davis, the Department notified Lamar that, because the Department had received a statement of loss of landowner's permission for the sign bearing tag number BG 518-35, Lamar was required to remove the sign. The Department included a "certificate of cancellation" with the letter. Lamar admits that it voluntarily canceled its permit for the sign in August 1997. Subsequently, the sign remained with its permit tag attached, unmolested by the Department for approximately 11 years. In January 1997, Lamar acquired a separate monopole structure bearing two signs with tag numbers BN 504 and BN 505. These signs are less than 200 feet to the north of the subject sign. During a 2007 inspection, an agent for the Department observed the subject sign. It still bore tag number BG 518-35. On March 14, 2007, the Department issued the "Notice of Violation-Illegally Erected Sign" addressed above. As noted before, the violation was based on the sign's having no permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the sign is a public or private nuisance and requiring that it be removed as provided in Subsection 479.105(1)(a), Florida Statutes, and dismissing case number 08-1137. DONE AND ENTERED this 16th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of July, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel 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
Findings Of Fact Clare A. Guenther is the sole owner and president of Western Gate Sign Company located at 8604 North Old Palafox in Pensacola, Florida. Western Gate had acquired Smith Advertising in February of 1977. Mr. Guenther testified that he had been told repeatedly by a former DOT inspector that he did not need a permit tag on the sign in question because it had been "grandfathered in." However, this former DOT employee was not present at the hearing for testimony. Mr. Guenther acknowledged that Western Gate Sign Company had received a letter from DOT dated December 18, 1978, notifying all outdoor advertising licensees and permittees that permits will be required for all signs within city or town limits, and allowing a 60 day period within which permits could be applied for. At this time, however, Mr. Guenther was under a doctor's care, and he relied totally on the former DOT inspector in most matters relating to road signs. Nevertheless, no application for a sign permit was filed by Western Gate for the subject sign. Mr. Guenther testified that the representatives of Smith Advertising who were familiar with the erection of the sign in question Passed away in October of 1982, and Mr. Guenther admitted that he was not present when the sign was erected. He had no documents other than a lease dated September 9, 1971 to show when the subject sign was actually erected. Sometime during the years 1977 or 1978, Western Gate changed the face of the subject sign by replacing the boards. This amounted to a replacement of more than 25 percent of the value of the entire sign. Emory F. Kelley, District Administrator, Outdoor Advertising, Department of Transportation, is responsible for controlling outdoor advertising in the 16 counties of the third district, including Escambia, on federal aid and primary roads and interstate highways. He makes decisions on applications for outdoor advertising permits based on his review and the recommendation of the inspector who viewed the site. The sign in question is within the city limits of the City of Pensacola, and is located approximately 500 feet north of State Road 289-A on Interstate Highway 110, facing south. It is a DOT policy to consider applications for sign permits on a first come, first serve basis. When the permit application was received from Western Gate Sign Company, it was transmitted to Sandi Lee, a local DOT inspector, to be checked out. Ms. Lee's inspection showed that there were existing permitted signs less than 1,000 feet from the site of the sign in question, on the same side of the road, facing the same direction. Using the DOT computer inventory, the permitted sign south of the sign in question is one with permit number 8737-10 at mile 1.55. The permitted sign north of the sign in question is one with permit number AE559-10 at mile 1.75. The milepost locations indicated on the computer inventory begin at Maxwell Street on I-110 and move in a northerly direction. The distance between Maxwell Street and State Road 289-A is approximately 1.5 miles, which would place the southerly permitted sign, number 8737-10, .05 miles or approximately 264 feet north of SR 289-A, and place the northerly permitted sign .25 miles or approximately 1320 feet north of SR 289-A. Permit number 8737-10 was approved on May 7, 1976, and permit number AE559-10 was approved on March 4, 1982. The application for the sign in question, submitted by Western Gate Sign Company, was dated June 2, 1982, and was received in the DOT district office on June 3, 1982. Sandra Lee, Outdoor Advertising Inspector, Department of Transportation, performs field inspections for permit applications on federal aid, primary and interstate highways. She conducted the field inspection for the subject permit application. Using a roll-a-tape device, she measured the distance of the sign in question as approximately 150 feet from a previously permitted board. The subject sign is on the same side of the road as the permitted sign, facing in the same direction, located inside the corporate limits of Pensacola, on a section of interstate highway open to travel by the public. It is a six foot by twelve foot sign which is visible from the interstate highway and is located 20 to 25 feet from the right-of-way line.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Western Gate Sign Company for an outdoor advertising permit for a sign on Interstate Highway 110, five hundred feet north of State Road 289-A, facing south, be denied. THIS RECOMMENDED ORDER entered this 2nd day of March, 1983, in Tallahassee, 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 March, 1983. COPIES FURNISHED: Clare A. Guenther, President Western Gate Sign Company 8604 North Old Palafox Pensacola, Florida Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.
Recommendation It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. COPIES FURNISHED: Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58 Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Frank J. Seiz 4811 Palmetto Point Road Palmetto, FL 34221-9721 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issues to be determined in this case are whether Respondent, Judy K. Beardslee, violated state election laws by certifying the correctness of a campaign treasurer's report that was incorrect, false, or incomplete, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a member of the City Council of Edgewood, Florida. She ran successfully for this political office in 2004 and 2006. The alleged offense took place during the 2004 election campaign. The City of Edgewood has approximately 1,200 registered voters, and Respondent's 2004 campaign was very modest by any measure. She received only three direct campaign contributions, totaling $415, and $50 of this sum was from her personal funds. Respondent appointed her mother, Linda Boggs, as her deputy treasurer. Three treasurer's reports were filed for Respondent's 2004 campaign. Ms. Boggs relied on Respondent for the information about contributions and expenditures that appears in the three reports. The reports disclosed $415 in campaign contributions and $415 in campaign expenditures. The treasurer's reports were signed by Ms. Boggs and by Respondent. Respondent's signatures were placed under the following statement that appears on the official campaign treasurer's report form: "I certify that I have examined this report and it is true, correct and complete." It is undisputed that on March 2, 2004, Respondent's husband, Ronald Beardslee, paid $148.56 for the production of 25 yard signs that included the words "Elect Judy Beardslee." Mr. Beardslee paid for the yard signs using a check from a joint personal bank account he owned with Respondent. The yard signs were distributed and displayed before the vote for city council members held on March 9, 2004. Mr. Beardslee's purchase of the yard signs was not reported in Respondent's campaign treasurer's report that covered the period from February 14, 2004, to March 3, 2004, and the purchase was not shown in any subsequent report. In January 2005, the Commission received a confidential complaint, alleging that Respondent's campaign treasurer's reports did not disclose all contributions made to her 2004 campaign. Following the Commission's investigation of the complaint, it issued the December 2, 2005, Order of Probable Cause that is the subject of this case. In its Order of Probable Cause, the Commission charged Respondent with violating Subsection 106.07(5), Florida Statutes, "by certifying the correctness of her [campaign treasurer's report] covering the period from February 14, 2004 to March 3, 2004, when Respondent failed to report an in-kind contribution from her husband, Ron Beardslee, of $148.56 for yard signs." Respondent testified at the hearing that at the time she certified the accuracy of the treasurer's reports, she did not know her husband had purchased the yard signs. She claims she did not know her husband purchased the signs until more than a year after the election. Respondent's husband testified that he did not consult with, coordinate with, or otherwise inform Respondent that he had purchased the yard signs until long after the 2004 election. Respondent first saw the yard signs "a couple of days before election day." Respondent also saw her husband with the yard signs before the election, and she saw the city clerk talking to her husband about the signs on election day. Nevertheless, these events did not cause her to think her husband had paid for the signs. Respondent said she thought the signs had been procured by a homeowners association that supported her candidacy. Respondent made no inquiries to determine who had paid for the yard signs. The Commission argued that Respondent's testimony at the hearing was inconsistent with her testimony in a deposition taken two weeks earlier during which she said that she found out her husband had paid for the signs on "either election day or the night before." Respondent said she was confused by the deposition question and did not mean to say she knew before the election that her husband had paid for the signs. The transcript of the deposition supports Respondent. The question put to Respondent at her deposition about when she found out who paid for the signs followed questions about when she first noticed the signs. When Respondent answered "either election day or the night before," she apparently thought she had been asked again when she found out about the signs. That is indicated by her answer to the follow-up question about how she found out, which was, "I saw them." Seeing the signs is how Respondent could first notice them, not how she could find out her husband paid for them. See Petitioner's Exhibit 15, pp. 54-58. In addition to ordering and paying for the yard signs, Mr. Beardslee distributed the yard signs. When advised to do so by the city clerk, Mr. Beardslee prepared and attached a disclaimer label to the yard signs. He also did some door-to- door campaigning for Respondent. Mr. Beardslee's door-to-door campaigning was primarily for the benefit of another candidate, but Mr. Beardslee used the opportunity to urge people to vote for Respondent. On one or two occasions, Mr. Beardslee hand- delivered Respondent's campaign treasurer's report to the city clerk. When the yard signs were made, they did not identify who paid for them. On the day of the election, the city clerk, Faye Craig, told Mr. Beardslee that the yard signs did not comply with the election laws because they had no disclaimer statement. Mr. Beardslee immediately went home and made labels that contained a disclaimer statement and then attached the labels to the yard signs. It was established that the labels included the words "Paid Political Advertisement" (possibly in another form, such as "Pd. Political Ad"), but Mr. Beardslee testified he was not sure whether the label indicated that the advertisement was paid "for Judy Beardslee" or "by Judy Beardslee." On cross-examination, Mr. Beardslee stated that the disclaimer on the yard signs might have said "by Judy Beardslee." As set forth in the Conclusions of Law that follow, the election laws require a political advertisement to disclose who paid for the advertisement. The elections laws do not require an advertisement to disclose who the advertisement is for, since that would usually be obvious. Because Ms. Craig was very familiar with the election laws, a reasonable inference can be made that she advised Mr. Beardslee to add a disclaimer to the yard signs to indicate who paid for them. It is not credible that after being told to by the city clerk to put a disclaimer statement on the yard signs, and then making the labels himself, Mr. Beardslee would not remember what the labels said in this regard. The photograph of one of the yard signs in the record (Petitioner's Exhibit 4) is not large enough to show the wording of the label clearly. However, by use of a magnifying glass, it appears to the undersigned that the second line of the disclaimer reads "by Judy Beardslee." It is reasonably clear that the first word of the second line is a two-letter word and the second letter of the word is "y."3 Considering the record evidence and the demeanor of Mr. Beardslee during his testimony, it is found that the disclaimer label indicated that the yard signs were paid for "by Judy Beardslee." The labels did not include Mr. Beardslee's name and address or indicate that the signs were paid for by him, independently of Respondent. After the election, the yard signs were put in Respondent's garage where they remained for months.4 When Respondent submitted her qualifying papers for her candidacy for the City Council, she was provided copies of the 2004 Candidate and Campaign Treasurer Handbook (Handbook) and the Florida Election Law Book. Chapter 9 of the Handbook explains the meaning of "contribution" and "independent expenditure" and the reporting requirements associated with each. Respondent admitted that she did not read the Handbook because she was exhausted from campaigning and other responsibilities. Respondent understood that the Handbook was important, because "[she] had to sign for it." Respondent never asked the city clerk about any of her duties under the election laws. Even at the time of her deposition for this case in March 2006, when asked whether she had received a copy of Chapter 106, Florida Statutes, Respondent said she did not know what Chapter 106 was because "[she] was not a lawyer." Mr. Beardslee did not file a report with the Commission to disclose that he had made an independent expenditure during the 2004 Edgewood City Council election campaign. In a letter to a Commission investigator dated May 23, 2005, counsel for Respondent stated that "even including the yard sign expenditure, the total campaign expenses were under $500.00," and suggested that the omission of the yard signs from the treasurer's report was due to inadvertence, rather than because it did not have to be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Judy K. Beardslee, willfully violated Subsection 106.07(5), Florida Statutes, and imposing a penalty of $1,000. DONE AND ENTERED this 8th day of May, 2006, in Tallahassee, Leon County, Florida. S 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 May, 2006.
Findings Of Fact Beginning in 1966, Petitioner, BREWINGTON SONS & DAUGHTERS, was engaged in a used-car business located at 8007, U.S. Highway North, in Hillsborough County, Florida. For reasons unrelated to this case, on December 19, 1994, the Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, suspended Petitioner's license as an independent motor vehicle dealer in Florida. As a result of this licensure suspension, Petitioner ceased operation of a used-car business after December 19, 1994. At some time prior to January 18, 1995, Petitioner had erected a sign which read, in pertinent part, "Brewington Sons & Daughters Used Cars, Sales and Service," which sign was located at Petitioner's property on U.S. Highway 301 North, in Hillsborough County, Florida. The subject sign was visible from the main-traveled way of U.S. Highway 301 North. U.S. Highway 301 is a federal-aid primary highway. In January of 1995, prior to the issuance of a notice of violation to Petitioner, Mona Hart, a property and outdoor advertising inspector of Respondent, inspected Petitioner's property from U.S. Highway 301 and observed the subject sign. At the time of this inspection, there was no indication of a used-car business in operation at the site. In January of 1995, prior to the issuance of a notice of violation to Petitioner, Susan Rosetti, the district right-of-way administrator of property management and outdoor advertising with Respondent, contacted the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, regarding the status of Petitioner's license and was informed that Petitioner's license to operate a used-car business had been suspended on December 19, 1994. On January 18, 1995, Respondent issued a notice of violation to Petitioner under Section 479.07, Florida Statutes, and posted a violation sticker on the subject sign for failure to have a permit. On January 19, 1995, Respondent mailed a notice of violation to Petitioner. On January 18, 1995, Petitioner was not operating a used-car business on the premises where the subject sign was located. On or before February 10, 1995, Petitioner removed the subject sign from its location on U.S. Highway North in Hillsborough County, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order confirming the issuance of a notice of sign violation to Petitioner. DONE AND ENTERED this 7th day of November, 1995, in Tallahassee, Leon County, Florida. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1995. APPENDIX As to Respondent's Proposed Findings 1 - 11. Accepted and incorporated. COPIES FURNISHED: Floyd B. Brewington, Sr. Brewington Sons & Daughters 8007 U.S. Highway 301 North Tampa, FL 33637 Mary J. Dorman, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Attn: Diedre Grubbs, M.S. 58 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue Whether the Florida Department of Transportation properly denied sign permits to the Petitioner on the basis that the commercial zoning on the property was not comprehensive zoning within the scope of that phrase as it is used under the applicable federal sign regulations and on the basis that the parcel was not of sufficient size to support commercial activities other than a sign.
Findings Of Fact The Petitioner Flynnstone Outdoor Advertising Inc., is a Florida Corporation in Tallahassee, Florida. The Department is the agency charged with the responsibility to administer and enforce the provisions of Chapter 479, Florida Statutes, and Title 23, United States Code of Federal Regulations concerning the signs on the federal highway system. See Section 479.02, Florida Statutes. The Petitioner's Applications for Outdoor Sign Permit numbers 53758 and 53579, were duly received by the Department and were duly denied on April 30, 2002. The subject sign permit applications sought authority to located a v-shaped, bi-directional sign on a three-foot diameter post twenty-two fee above the ground with overall dimensions of eighteen feet in width and 30 feet in length. The location sought for the sign was on a .33 acre parcel of land approximately 3,128 feet east of Brickyard Road in Gadsden County, Florida. The parcel of land is within the city limits of the City of Midway, Florida. The parcel is irregular in shape and has 75 feet of frontage along the CSX railroad right-of-way adjacent and parallel to U.S. 90 West on the east side, a south side dimension of 234.32 feet, a western dimension of 200 feet and an overall area of approximately 14,838.32 square feet. The parcel has a viable access road onto U.S. Highway 90. The Comprehensive Plan for the City of Midway designates all of the property along both sides of U.S. Highway 90 West from the subject property to the Interstate Highway 10 interchange, approximately 3/4 of a mile to the north of the site. The City of Midway's city building inspector, Roosevelt Morris, testified. The area in the vicinity of the subject parcel was originally annexed into the City of Midway as agricultural land. Once annexed, the subject parcel was zoned commercial and the adjacent 9.9 acres to the north was re-zoned high-density residential. The area along U.S. Highway 90 North of the high- density residential parcel all the way to Brickyard Road near the Interstate 10 interchange is zoned commercial. On the east side of U.S. Highway 90 directly across from the subject property, the land is zoned commercial and is used for a large commercial modular home sales facility. North of the mobile home center on the East side of U.S. Highway 90 West, a large commercial car/truck travel is located. City of Midway building inspector Roosevelt Morris testified regarding the zoning plans of the City of Midway. The plan is to have commercial zoning for the entire area along U.S. Highway 90, from the subject parcel north to Interstate 10. The Petitioner leases the subject parcel with an option to purchase it from the owner. The owner/developer of the subject parcel and the adjacent multi-family residential parcel, James A. Stiles, testified. These parcels were originally purchased and were zoned as agricultural. The adjacent 9.9 acre parcels were re-zoned multi-family so that a prospective purchaser, Tampa-based Citizens Realty Corporation, could put approximately one hundred government-subsidized residential apartment units on the parcel. The subject .33 acre parcel was re-zoned commercial in order to place a commercial Laundromat, convenience store or mini-storage facility adjacent to the apartments to serve the residents of the complex. The federal grant application for the multi-family project was denied, and there is litigation pending regarding the development. If the development fails, the owner will re-zone the parcel commercial. City of Midway building inspector Roosevelt Morris testified regarding the City of Midway Land Development Code. It provides that the minimum lot size for a commercial lot is 75 feet by 100 feet in depth for a total square footage of 7,500 square feet. According to those standards, the subject parcel meets the minimum requirements. The applicable state and federal authorities require that for a parcel to be eligible for a sign permit, among other requirements, it must be zoned commercial or industrial as a part of comprehensive zoning. More specifically, Code of Federal Regulations, Title 23 "Highways" provides as follows in Section 750.708 "Acceptance of State Zoning": 23 U.S.C. 131 (D) provide that signs 'may be erected and maintained within 660 feet of the nearest edge of the right-of-way within areas . . . which are zoned industrial or commercial under authority State law.' Section 131 (d) further provides, 'The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purpose of this act.' State and local zoning actions must be taken pursuant to the State's zoning, enabling statute or constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes. The Department does not dispute that the first part of the zoning test is met. See T.9, Line 20. The future land use in this area is commercial. The Department denied the applications because the zoning, agricultural, was changed to commercial on this parcel (1/3 of an acre) upon which the sign is to be placed. The future land use would be industrial and commercial under the comprehensive development plan, and the city has opted out of industrial. Mr. Morris testified regarding the housing project. It had been annexed into the City of Midway and had to be zoned agricultural when it was brought into the city. Once in the city, it was re-zoned commercial and high-density residential. The plan for future development calls for the area along Highway 90 to be commercial. All of the property in this area would be re-zoned commercial under the future land use plan. The property on the other side of the highway is commercial and being developed as such. The subject parcel and the ten-acre residential tract are separated from the highway by an active railroad track. The track will also impact the future land use of the ten-acre residential parcel, which the owners indicate they will seek to re-zone. Roosevelt Morris, the local zoning and building official, testified that the small parcel in question meets the requirements for a commercial lot. The only current access to the subject parcel is through a larger parcel. There is no indication of utilities on the subject parcel. However, there is nothing to preclude access or utilities being provided to the parcel. The Department points to the required set backs of 20 feet from each boundary as the strongest argument for concluding this parcel was zoned to accommodate the sign, and not other development. It was the Department's view the setback precluded any development. If there had been a commercial activity on the property, the Department's administrator would have still denied the application. The administrator did not consider commercial uses immediately across the highway because it was "separated" by the rights-of-way from the highway and railroad.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: The Department should grant the pending permits for the outdoor advertising signs. DONE AND ENTERED this 24th day of October, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 24th day of October, 2002.
The Issue Whether Florida Administrative Code Rule 14-10.007(6)(b), which provides for revocation of outdoor advertising permits for nonconforming signs that are abandoned or discontinued, is an "invalid exercise of delegated legislative authority" as alleged by Petitioners.
Findings Of Fact The Department of Transportation is the state agency responsible for administering and enforcing the outdoor advertising program in accordance with chapter 479, Florida Statutes. The Department adopted Florida Administrative Code Chapter 14-10, which provides for the permitting and control of outdoor advertising signs visible to and within controlled areas of interstates and federal-aid highways. Rule 14-10.007 provides regulations for nonconforming signs. Section 479.01(17), Florida Statutes, defines nonconforming signs as signs that were lawfully erected but which do not comply with later enacted laws, regulations, or ordinances on the land use, setback, size, spacing and lighting provisions of state or local law, or fail to comply with current regulations due to changed conditions. Rule 14-10.007 provides in part that: (6) A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. "Destroyed," "abandoned," and "discontinued" have the following meanings: * * * (b) A nonconforming sign is "abandoned" or "discontinued" when a sign structure no longer exists at the permitted location or the sign owner fails to operate and maintain the sign, for a period of 12 months or longer. Signs displaying bona fide public interest messages are not "abandoned" or "discontinued" within the meaning of this section. The following conditions shall be considered failure to operate and maintain the sign: Signs displaying only an "available for lease" or similar message, Signs displaying advertising for a product or service which is no longer available, Signs which are blank or do not identify a particular product, service, or facility. Carter is licensed to engage in the business of outdoor advertising in Florida and holds an outdoor advertising permit for a nonconforming outdoor advertising sign bearing Tag No. AS 228. The outdoor advertising sign for the referenced tag number is located in Lee County, Florida ("Carter Sign"). On February 22, 2010, the Department issued a Notice of Intent to Revoke Sign Permit to Carter for sign bearing Tag No. AS 228. The notice advises that "this nonconforming sign has not displayed advertising copy for 12 months or more, and is deemed abandoned, pursuant to s. 14-10.007(6)(b), Florida Administrative Code." Petitioner Nissi is licensed to engage in the business of outdoor advertising in Florida and holds outdoor advertising signs bearing Tag Nos. BK 731 and BK 732, which signs are located in Pasco County, and BN 604, BN 605, AR 261, AR 262, AT 485 and AT 486, which signs are located in Hernando County ("Nissi Signs"). In June and July 2013, the Department issued notices of intent to revoke sign permits, pursuant to rule 14-10.007(6)(b), based on the signs not displaying advertising for 12 months or longer. The notice issued to Nissi advised that the Department deemed the signs as having been abandoned. Carter and Nissi, as owners of nonconforming signs receiving violations under rule 14-10.007(6)(b), have standing and timely challenged the rule in dispute herein.
