The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2001.
Findings Of Fact By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg installed a sign on U.S. 301, 7.19 miles south of I-4 in violation of Rules 14- 10.04 and 14-10.05, Florida Administrative Code. The sign in question is an outdoor advertising, sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years. The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road. Until 1976, the road on which the sign borders was a federal-aid secondary road. Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979. Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign. Both parties agreed to submit the legal issue to the Hearing Officer for determination.
Findings Of Fact 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
The Issue Whether the structure described in the Department of Transportation's Notice of Violation No. 10B DB 2000 007 (Notice) is in violation of Section 479.07(1), Florida Statutes, and therefore subject to removal pursuant to Section 479.105, Florida Statutes, as alleged in the Notice.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is an outdoor advertising company that was formerly known as AK Media. On December 10, 1998, Petitioner (while still known as AK Media) entered into an agreement with NWT Partners, Ltd., the owner of the New World Tower (Building), a "thirty story four (4) sided building" located at 100 North Biscayne Boulevard in Miami, Florida, to lease certain portions of the Building. The lease agreement contained the following provisions, among others: Effective Date. This Lease shall become effective on the later of (x) the date that Tenant provides written notice to Landlord that Tenant has obtained all permits, license and governmental approvals necessary or required to enable Tenant to construct, maintain and operate the Wall Faces and Wall Structures, as hereinafter defined or (y) January 1, 1999 (the "Effective Date"). Tenant shall have ninety (90) days from the date of this Lease to obtain all such permits, licenses and approvals or the Landlord may cancel this Lease. Purpose. The purpose of this lease is for Tenant to construct, maintain and operate painted, printed, illuminated and/or electrical signs on the north and south wall faces of the Building (the "Wall Faces"), and all other uses not inconsistent therewith, including all necessary supporting structures, devices, illumination facilities and connections, service ladders and equipment, and other appurtenances (the "Wall Fixtures"). All construction to the Building, and advertising thereon, including construction drawing and artwork to be furnished by the Tenant shall be subject to Landlord's written approval, which approval shall not be unreasonably withheld. Tenant's Right to Enter and Use. For the duration of this Lease, Tenant shall have the non-exclusive right to enter onto the Property and into the Building and use the Wall Faces for the purposes described in this Lease and any other purposes allowed or required by this Lease and Tenant has the exclusive right to use the Wall Faces Property for advertising. In exercising Tenant's rights hereunder, Tenant may hang or attach the Wall Fixtures to the roof and exterior structure of the Building. Tenant shall maintain the Wall Fixtures at Tenant's cost and expense. Tenant shall pay all utility charges in connection with the operation and maintenance of the Wall Fixtures. Tenant shall be responsible for damage to the Building which is caused by Tenant's operation and maintenance and removal of the Wall Fixtures and shall repair any such damage and restore the Building to the condition it was in immediately prior to such damages at the expiration or termination of this Lease. Term. The term of this Lease is for five (5) years from the "Rent Commencement Date," as hereinafter defined, to the last day of the month during which the fifth anniversary of the Rent Commencement Date occurs (the "Term"). Rent. Tenant shall pay Landlord rent annually, in accordance with the schedule (the "Rent Schedule") set forth on Exhibit "B" hereto, inclusive of all taxes . . . . Contracts. Anything herein to the contrary notwithstanding, Tenant will use its best efforts to obtain contracts (the "Contracts") for advertising on the Building which exceed the amount of the Guaranteed Rent, as set forth on the Rent Schedule. . . . 9. Ownership/Removal. At all times, Tenant is and shall remain the owner of the Wall Fixtures and all signs and permits of any kind in relation thereto, and has the right to remove the Wall Fixtures at any time. . . . Exhibit "B" Rent Schedule Tenant shall pay annual rent to Landlord in an amount equal to the greater of (x) Fifty-five percent (55%) of the gross revenues attributable to advertisements displayed on the North Wall and the South Wall of the Building less any agency fee or commissions not greater than 16 2/3% to bona fide third parties (the "Net Revenues") associated with such advertisements (the "Percentage Rent") or (y) the minimum guaranteed annual rent (the "Guaranteed Rent") hereinafter set forth as follows: . . . The Landlord may terminate the Lease Agreement upon thirty (30) days prior written notice to Tenant if either Wall is vacant for more than one hundred twenty (120) consecutive days during the Term of the Lease and the Tenant has failed to obtain a contract, before the expiration of such notice period, for advertising on the North Wall or South Wall, as the case may be, pursuant to which the projected Percentage Rent under such contract would exceed the Guaranteed Rent. . . . Subsequently, Petitioner (while still operating under the name AK Media) entered into a "bulletin contract" with New York Outdoor, an advertising agency acting on behalf of Supreme International, in which Petitioner agreed, for a fee, to produce and maintain an "outdoor advertising display" for Supreme International on the north wall of the Building. Supreme International sells "Perry Ellis" and "Perry Ellis for Men" brand fashion apparel. In accordance with the "bulletin contract," Petitioner produced an "outdoor advertising display" for Supreme International on the north wall of the Building. The "outdoor advertising display" that Petitioner produced was a large mural more than 100 feet high and more than 60 feet wide. Such a product is referred to in the outdoor advertising industry as a "wallscape." The "wallscape" that Petitioner produced for Supreme International consisted of artwork (a picture of a young woman) and print (the words "Perry Ellis for Men") on a "canvass-type" material that was mounted on a "picture frame" support structure attached to the north wall of the Building. It was located within 660 feet of the nearest edge of the right-of-way of a roadway, US Highway 1 (also known, in that location, as North Biscayne Boulevard), which is a part of the federal-aid primary highway system. The artwork and print could be seen without visual aid by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building. At no time has Petitioner applied for, or obtained, a permit from the Department authorizing it to erect and maintain a "sign," as that term is used in Chapter 479, Florida Statutes, on the north wall of the Building. Petitioner, however, did seek and obtain a Class II Special Permit from the City of Miami. The permit was granted by the Miami City Commission, through the passage of Miami City Commission Resolution 99- 828, at its October 26, 1999, meeting. The printed agenda distributed in advance of the meeting stated the following concerning the permit for which Petitioner had applied: Consideration of approving Class II Special Permit No. 99-0142 for the property located at approximately 100 North Biscayne Boulevard for a sign of a graphic or artistic value. This will allow a mural containing a commercial message. The resolution passed by the Miami City Commission at the meeting read as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE RECOMMENDATION OF THE DIRECTOR OF THE PLANNING DEPARTMENT FOR ISSUANCE OF CLASS II SPECIAL PERMIT APPLICATION NO. 99-0142, SUBJECT TO THE CONDITION THAT THERE SHALL BE NO WRITING PERMITTED WITH THE MURAL AND OTHER CONDITIONS AS RECOMMENDED BY THE PLANNING DEPARTMENT FOR THE PROPERTY LOCATED AT APPROXIMATELY 100 NORTH BISCAYNE BOULEVARD, MIAMI, FLORIDA, PURSUANT TO SECTION 401 OF ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED. WHEREAS, the Director for the Department of Planning is recommending approval of Class II Special Permit Application No. 99-0142, with conditions, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida; and WHEREAS, Zoning Ordinance No. 11000, as amended, the Zoning Ordinance of the City of Miami, Florida, requires City Commission approval of the Class II Special Permit as hereinafter set forth; and WHEREAS, the City Commission after careful consideration of this matter, finds the application for a Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to approve the recommendation of the Director of the Department of Planning to uphold the issuance of the Class II Special Permit, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. Section 2. The recommendation of the Director of the Department of Planning to issue Class II Special Permit Application No. 99-0142, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida, is hereby approved, and the City Commission finds that the issuance of Class II Special Permit Application No. 99-0142, with conditions does meet the applicable requirements of Zoning Ordinance No. 11000, as amended. Section 3. The Resolution shall become effective immediately upon its adoption and signature of the Mayor. Inasmuch as the words "Perry Ellis for Men" were on the "wallscape" that Petitioner produced for Supreme International, this "wallscape" was not in compliance with the condition imposed by the Miami City Commission, in issuing the Class II Special Permit to Petitioner, that there "be no writing permitted with the mural." On February 22, 2000, Bernard Davis, who, at the time, was the Department's District 6 Roadside Outdoor Advertising Administrator, issued a Notice of Violation (Notice No. 10B DB 2000 007) alleging that the "wallscape" on the north wall of the Building (described above) was "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes" and directing that the sign be removed within 30 days. Petitioner thereafter requested an administrative hearing on the matter. Prior to the hearing, the artwork and print on the "wallscape" on the north wall of the Building were changed. As of the date of the final hearing in this case, the "wallscape" on the north wall of the Building contained a picture of a man and part of a woman and the words "Perry Ellis," underneath which was written "www.perryellis.com," Supreme International's website address. The Monday and Tuesday before the final hearing (February 5 and 6, 2001), Mr. Davis' successor, C. Jean Cann, went inside the Building to determine whether Supreme International had an "on-premises presence." On Monday, February 5, 2001, Ms. Cann entered the Building at approximately 1:15 p.m. After obtaining information from the Building's Electronic Directory that "Perry Ellis" occupied room 2128, she took the elevator to the 21st floor. After getting off the elevator, she walked down a hallway, where she saw a paper sign on a door which read "Perry Ellis/Supreme International, Incorporated, 2128." When she knocked on the door, no one answered. She waited 10 to 15 seconds and then knocked again, with the same result. She then, unsuccessfully, attempted to open the door. At around 1:45 p.m., she left the Building. Ms. Cann returned to the Building the following day at approximately 11:40 a.m., at which time she spoke to a security guard, who informed her that "Perry Ellis" "was in 2126." She then again went up to the 21st floor, and, on the same door that she had seen the "Perry Ellis/Supreme International, Incorporated, 2128" sign the day before, she saw a paper sign that read "Perry Ellis/Supreme International, Incorporated, 2126." Her knocks on the door, like those of the previous day, went unanswered, and she was again unable to open the door. At around 12:00 noon, she exited the Building. At no time during either of her two visits was Ms. Cann able to ascertain what, if any, business activity Supreme International was engaging in inside the Building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that the "wallscape" on the north side of the Building is a "sign" that was erected and is being maintained without the Department-issued permit required by Section 479.07(1), Florida Statutes, and that it therefore is a public and private nuisance that must be removed pursuant to Section 479.105(1), Florida Statutes. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2001.
The Issue 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.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1994.
The Issue Whether a sign owned by Henderson Sign Company located approximately one- tenth of a mile east of the junction of State Road 73 and U.S. 90 containing as old copy "Key Drug Center" and new copy "Best Western Motor Inn" is in violation of the permit (Section 479.07(1) and (6), F.S.), spacing (Sections 479.02 and 479.111(2), F.S.), and setback (Section 479.11(1),F.S.) requirements.
Findings Of Fact The respondent owns and maintains an outdoor advertising structure adjacent to U.S. Highway 90 approximately one-tenth mile east of its intersection with State Road No. 73 within the corporate limits of the City of Marianna. This structure is a double billboard, with one advertisement for "Key Drug Center," erected in August of 1974, and the other for "Best Western Motor Inn" erected in April of 1976. It is located approximately five (5) feet from the edge of the sidewalk approximately 10 to 15 feet from the edge of the north side of Highway 90. At the time of the Respondent's erection of the first sign, he obtained a permit from the City of Marianna but not from Petitioner Department of Transportation. Before erection of the second sign, in 1976, the Respondent submitted an application to the Petitioner, but the application was denied. There is no other outdoor advertising structure bearing a properly issued permit from the Petitioner in existence within 500 feet from the Respondent's advertising structure although there is a non-permitted sign within 120 feet facing in the same direction. Petitioner has entered into evidence a copy of the zoning ordinance of Marianna, Florida. Petitioner contends: that the signs of Respondent violate the set-back, space and permit section of Chapter 479, Florida Statutes, and of The Governor's Agreement of 1972. Respondent contends: that the Petitioner has not proved where the edge of the right-of-way of Federal Highway 90 is located, that the other sign, if any, is not a lawful sign, having no permit, so the spacing violation, if any, is not enforceable and that the requirement of Chapter 479, Florida Statutes, does not apply to incorporated cities.
Recommendation Remove subject signs for violation of the 660 foot setback requirements of a federal aid highway, Section 479.11(1), and the spacing requirements of the Governor's Agreement of January 27, 1972. The zoning ordinance of Marianna, Florida does not show that there is effective control of outdoor advertising by the City of Marianna. DONE and ORDERED this 13th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Office of Legal Operations Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida 32304 Richard Wayne Grant, Esquire 209 North Jefferson Street Marianna, Florida 32446 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Henderson Sign Service Post Office Box 887 Marianna, Florida Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding has been erected on a small parcel of land located approximately one-quarter of a mile west of First Street on Rockland Key, next to the southbound lane of U.S. 1, in Monroe County, Florida. This location is outside the city limits of any municipality. On approximately October 1, 1983, Mr. Frank Toppino, who is not a party to this proceeding and who was not presented as a witness at the hearing, leased the subject property to the Pier House Inn and Beach Club for one year. Under the terms of this lease, the Pier House Inn received the right to use the property for an outdoor advertising structure which the parties to the lease contemplated would be constructed there. The Pier House agreed to pay the sum of $950 to Mr. Toppino as rent for the year. In addition, the Pier House agreed to undertake construction of the sign on the land for the benefit of Mr. Toppino, the lessor, after the lease expires. The PIER House received the right to use this land for one year, and the right to place advertising copy of its choice on the face of the outdoor advertising structure for one year. The lease between Mr. Toppino and the Pier House Inn covering the subject property was received in evidence. This lease, and the testimony of the general manager of the Pier House Inn who executed it as lessee, which is detailed above, supports a finding of fact that Mr. Frank Toppino and not the Pier House was the owner of the outdoor advertising structure which is the subject of this proceeding on October 1, 1983. Subsequently, when the Department's Outdoor Advertising Administrator made his inspection of the subject sign, there was no state outdoor advertising permit affixed thereto, and the Department has not issued any permit for this structure. The sign was erected between two other permitted signs, and it is closer than 500 feet to both of these existing and permitted structures. The sign which is the subject of this proceeding is located adjacent to a federal- aid primary highway outside any incorporated city or town. It is visible from U.S. 1, and it is within 660 feet of the edge of the pavement of this highway. The Department's Outdoor Advertising Administrator made a determination that the Pier House Inn was the owner of the sign in question based upon information contained in a Monroe County Building Permit application, and based upon the hearsay information received during telephone conversations. However, this information is controverted by the direct testimony of the general manager of the Pier House Inn which is itself corroborated by the lease between Mr. Toppino and the Pier House which is in evidence. Thus, the testimony received from the Department's witness is not of sufficient quality to support a finding of fact that the Pier House Inn is the owner of the sign in question. Moreover, the Department has the burden of proof on this issue, and the quantity and quality of the evidence presented on the matter of ownership of the subject sign does not carry this burden.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the violation notice issued on December 12, 1983, to the Pier House Inn and Beach Club, be dismissed, without prejudice to the reinstitution of proceedings in which the violation notice is directed to the actual owner of the sign in question. THIS RECOMMENDED ORDER entered this 23rd day of August, 1984, 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 23rd day of August, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
