Findings Of Fact On November 4, 1982, the Petitioner, Enterprise Outdoor Advertising, Inc., submitted applications for permits for two signs facing Interstate No. 4 (hereafter I-4) near the intersection of I-4 and 50th Street in Tampa, Florida. The specific location of the proposed signs is described as: Sec. 205 E/B .02 F/W Interstate I-4 50th Street and I-4 Sec. 205 E/B .02 F/E Interstate I-4 50th Streetand I-4 Both applications were disapproved by the Department of Transportation on November 9, 1982. The two signs for which Petitioner sought permits were to be located on a piece of property owned by Mr. E. B. Rood (hereafter referred to as Rood property). The Rood property is located adjacent to I-4, east of 50th Street, which runs north and south. The west facing sign application (see Respondent's Exhibit 11) was denied by the Department of Transportation because of a conflicting existing sign, Permit No. 7716-12, held by Foster and Kleiser, Intervenor. Permit No. 7716-12 was for a westerly facing sign physically located on the Rood property, pursuant to a lease between Intervenor and E. B. Rood. (See Respondent's Exhibit 4.) On November 3, 1982, Mr. E. B. Rood provided written notice to Foster and Kleiser that he was cancelling the lease. By the terms of the lease, the Foster and Kleiser sign then had to be removed within 30 days. On November 9, 1982, when the Petitioner's application was denied, the sign erected pursuant to Permit No. 7716-12 was still physically standing on the Rood property. Sometime prior to December 3, 1982, the sign was removed by Foster and Kleiser and the Department of Transportation was notified that the sign had been dismantled. (See Respondent's Exhibit 9.) Subsequent to dismantling its west facing sign, the Intervenor, Foster and Kleiser, applied for and received a permit for a westerly facing sign on a piece of property adjacent to I-4 just west of 50th Street and the Rood property. This second piece of property, located west of the Rood property, is referred to as the Bize property. At the time Foster and Kleiser applied for the westerly facing sign permit on the Bize property, there were no pending applications for a conflicting sign, and the previous conflicting sign on the Rood property had been dismantled. The application filed by Petitioner for a permit for an easterly facing sign on the Rood property was denied because of a conflicting permit, No. AG558- Permit AG558-12 was for a sign on the Bize property which would face east adjacent to I-4. At the time of Petitioner's application on November 4, 1982, no sign had actually been erected pursuant to Permit No. AG558-12. Permit No. AG558-12 had been issued to Foster and Kleiser in February, 1982, pursuant to an application accompanied by a written lease containing the purported signature of Mr. John T. Bize, the named lessor. (See Respondent's Exhibit 6.) Mr. John T. Bize died on January 1, 1977, and, therefore, was deceased on February 19, 1982, the date of the lease submitted by Foster and Kleiser with its application for Permit No. AG558-12. The only witness signature appearing on the lease was that of Thomas Marc O'Neill. Mr. O'Neill did not observe or witness the lessor sign the lease and felt, at the time he signed, that he was witnessing the signature of Ronald L. Westberry, who signed the lease on behalf of Foster and Kleiser. At the time he signed as a witness, Mr. O'Neill was and continues to be an employee of Foster and Kleiser. Subsequent to its disapproval of Petitioner's application for an easterly facing sign permit, the Department of Transportation was informed by Petitioner of the invalid lease on which Permit No. AG558-12 had been issued. By letter dated November 17, 1982, the Department notified Foster and Kleiser of the invalid lease and gave Foster and Kleiser 30 days within which to correct the problem. On November 22, 1982, the Department received a new lease for the Bize property and sign permit AG558-12. The new lease contained the following addendum: Effective date of lease shall be the of [sic] closing of purchase of said property or erection of signs, which- ever is first. There was no further evidence of the actual effective date of the lease. The Department of Transportation has a policy of requiring, with an application for a sign permit, a lease or other written evidence that the landowner has given permission to use his property for outdoor advertising purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order denying the Petitioner's two applications for outdoor advertising sign permits. DONE and ENTERED this 20 day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983. COPIES FURNISHED: Michael A. Houllis, Esquire 10525 Park Boulevard North Seminole, Florida 33542 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Steven L. Selph, Esquire Post Office Drawer 1441 St. Petersburg, Florida 33731 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner is entitled to an outdoor advertising sign permit to be located in an unzoned commercial/industrial area and whether the sign site qualified as an unzoned commercial/industrial area.
Findings Of Fact Lamar is in the business of erecting, operating and maintaining outdoor advertising signs in Northwest Florida. The proposed sign’s location was in Walton County along US Highway 331, .1 mile south of Bay Grove Road, a collector road. U.S. Highway 331 is a federal aid primary highway and therefore, a state permit is required for signs placed along its path. According to a Walton County zoning plan, the proposed sign’s location was in an area zoned Rural Village on both the Future Land Use Map and Land Development Regulations. The June 2006 version of the Walton County Land Development Code provides: F. Rural Village (RV): This district is a mixed use district which permits predominately residential development up to a maximum of two units per acre. Residential uses shall account for approximately 95 percent of the total land area within any area designated on the FLUM for this District. The remaining area may be utilized for related and compatible commercial uses. Commercial uses may occupy up to five percent of the total land area designated on the FLUM for this District. Commercial land uses shall be limited to collector and arterial road intersections, intersections of subdivision collectors and arterial or collector road, and areas that are specifically designated Commercial on the FLUM. Not more than 15 percent of the total frontage on both sides of a collector or arterial road shall be occupied by commercial uses within this district. The Walton County Land Development Code also defined general commercial activity as including inventory storage. The proposed sign’s location met the requirements for commercial use under the RV designation. Walton County certified to the Department that the designated parcel for the proposed outdoor advertising sign was Rural Village and that the primary use of the area under the current comprehensive plan was agriculture, general agriculture, residential, civic uses, and residential subdivision. Walton County also confirmed that the proposed outdoor advertising sign would be in compliance with all duly adopted local ordinances and would be issued the necessary County permit for such sign. The Walton County Property Appraiser’s website listed the usage of the proposed outdoor advertising sign location as a “service station.” The service station building was still on the property, but had not been used as such for a number of years. Billy Wayne Strickland, the state outdoor advertising administrator of the Department, processed the outdoor advertising permit applications submitted by Lamar. Mr. Strickland determined after a review of Lamar’s applications that the site, being designated as Rural Village with mixed uses allowed, met the need for evaluation under the use test for unzoned commercial or industrial areas contained in Chapter 479, Florida Statutes. The use test is set forth in Florida Statutes 479.02. Under the test, the Department examines a proposed sign’s location under the applicable current land use designation and future land use designation to determine if the outdoor advertising site meets the use criteria set forth in the statute for unzoned commercial and industrial areas. The use criteria for such unzoned property require that three commercial or industrial activities be located within 1600 feet of each other, with one of those activities located on the same side of the road and within 800 feet of the proposed sign’s location. Distances are measured from building to building. Additionally, the commercial or industrial activity must be visible from the highway. Mr. Strickland visited the property in order to determine if the proposed sign location met the requirements of the use test. He observed that the proposed sign’s site holds an abandoned-looking gas station and a house with a large fenced in area. Leaking fuel tanks made it unlikely the service station would be restored. There were several small, boarded-up, “fishing style cabins” associated with the fenced property. The fenced area had a sign posted for North Florida Development, Inc., a construction company. There was a number for the company listed on the sign. On a tree to the right of the fence was a sign that read “Private Road Keep Out.” In general, the area behind the fence appeared to be used for storage of building materials and equipment such as trucks and trailers. Except for the area behind the fence, the North Florida Development property was clearly visible from the highway. Mr. Strickland called the phone number on the sign and was informed that North Florida Development, Inc., that he was calling, was in Miramar Beach, Florida, and that North Florida Development was storing equipment and trucks at the U.S. Highway 331 location for a job they were doing in Destin. There was no one present at the house or the adjacent buildings. The North Florida Development buildings and fenced area were within 800 feet of the proposed sign’s location and were on the same side of the road as the proposed sign’s location. Because of the lack of activity, Mr. Strickland concluded that the North Florida Development property was not a commercial activity which was visible from the highway. On the opposite side of the Highway, Mr. Strickland observed two businesses within a 1600-foot zone that met the criteria of the use test. Additionally, while at the site, Mr. Strickland issued a Notice of Violation for the on-premises sign of North Florida Development. The Notice required the sign to be removed. Later, after the hearing in this matter, this action was dismissed by the Department. On November 29, 2006, the Department issued a written denial of the outdoor advertising sign site permit applications for the following reasons: (1) the sign site was not permitted under the local land use designation of site per Section 479.111(2), Florida Statutes, and (2) the sign site did not qualify as an unzoned commercial/industrial area per Section 479.01(23), Florida Statutes. On the morning of April 5, 2007, Mr. Strickland, again visited the proposed sign’s site. He observed essentially the same things he observed during his first visit to the location, except the large North Florida Development sign that had been on the entrance to the fenced area had been removed. Andrew White, a regional inspector with the Department, inspected the North Florida Development site on May 17, 2007, and photographed the area. The sign for North Florida Development had been removed, but the keep-out signs were still in place. Photographs taken from the street revealed a partial view of a storage trailer through the open fence. On the morning of June 6, 2007, just prior to the hearing, Mr. Strickland again visited the proposed sign’s location and observed no activity at the location. He could only see a trailer partially visible beyond the privacy fence. Larry Wayne Adkinson, vice president of North Florida Development and a general contractor licensed in Mississippi, lives and works on the property of the proposed sign’s location. Mr. Adkinson testified that the property totaled five and a-half or six acres and consisted of his home, his office, the service station and five fishing cabins. He and his business have been at this location for at least 12 years. Work has been delayed on repairing the service station based, in part, upon the fact that the state was seeking to condemn a portion of the property where the service station was located for the expansion of U.S. Highway 331. Mr. Adkinson uses the property as an inventory site, storing construction materials, heavy equipment, landscaping materials, and other bulk material related to his business. The site contained three semi-tractor trailers that were utilized to store construction materials, including doors, windows, and heavy equipment and equipment and materials for a landscape business owned by Mr. Adkinson. The landscape business stored tractor-trailers, small-equipment trailers, plants, brick pavers, scaffolding and rock molds. The site’s storage of inventory and business activity was very visible to people who lived in the neighborhood around the North Florida Development property. The visibility was such that, in 2006, the neighbors complained about the view to the County. The County, in turn, asked Mr. Adkinson to place a fence around the area to block the view of people passing through the area. Mr. Adkinson complied with the County’s request and built the privacy fence that Mr. Strickland observed. Mr. Adkinson also placed the company’s business sign on the fence to identify the property as North Florida Development’s business property. Most of the loading and unloading of material and equipment occurs in the early morning and evening hours. At those times, there is considerable activity at the site with trucks and equipment entering and leaving the property. Mr. Adkinson’s testimony was confirmed by the testimony of Chad Pickens, who routinely drives by the site during those hours. Mr. Strickland never visited the property during those busy hours, and therefore, did not observe the business activity associated with the site. Mr. Adkinson uses two of the fishing cabins as machine shops for his company’s equipment and tools. The shops contain drill presses, welding and repair equipment. Entry is gained through the rear doors of the cabins. He left the front of the cabins boarded up to prevent theft and storm damage. Mr. Adkinson also receives business mail at the U.S. Highway 331 location and has employees and job applicants report to that location. Clearly, the North Florida Development property is a viable and on-going business that conducts one of its business activities on the property on which the proposed sign is to be located. The activity is visible from the highway, although such activity ebbs and flows through the day. The property, therefore, meets the land use test requirements of Florida Statutes, and the Petitioner’s applications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Department of Transportation enter a Final Order granting the applications for outdoor advertising sign permits filed by Lamar Advertising of Fort Walton Beach. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2007. COMPLETE COPIES FURNISHED: Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James E. Moore, Esquire Post Office Box 1622 Crestview, Florida 32536 David M. Littlejohn, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the subject signs of Respondent should be removed.
Findings Of Fact A notice of violation and a notice to show cause was sent to the Respondent, Harry Moody Signs and delivered on September 13, 1977 alleging violations of Chapter 479, Florida Statutes and violations of Rule 14-1O.4. The violation notice was marked Petitioner's Composite Exhibit 1 and entered into evidence. The notice cited six signs and for clarity the Hearing Officer numbered the signs from one through six on the violation notice. Testimony and evidence was taken on each sign as follows: Sign One: This sign was withdrawn from consideration by consent of both parties. Sign Two: The parties agreed that a permit would be issued for this sign within the city limits of Weeki-Wachee, Florida providing it was removed from the state's right-of-way and moved back some 51 feet. Sign Three: This double faced sign has no permit. The sign consists of a small sign stating "This is Beacon Country" which is attached to and on the top of a large sign that states "See ten different models, Beacon Woods, Beacon Homes by Hoeldtke"; on the poles at the bottom of the signs is a third sign reading "P G A Golf-Restaurant- Shopping Turn Right." Sign Four: This sign has an expired 1972 permit tag attached to it. Sign Five: This sign has no current permit tag attached thereto. Sign Six: This sign has no current permit or 1974 tag attached thereto. The Respondent admitted that this sign was in violation of the outdoor advertising law. The Respondent disclaimed any interest in Sign One and the Petitioner moved to withdraw the charges. Sign Two is located on the state's right-of-way and is within the city limits of Weeki-Wachee. It was stipulated that the sign would be removed or relocated within 20 days from date of the hearing but the Respondent has not so notified the Hearing Officer of removal. The double faced sign marked as Sign Three was the subject of argument by both attorneys who requested to submit & memorandum of law as to whether the sign was in violation of Section 479.16(3). No memorandum of law has been received from either attorney although the 30 days allotted to submit said memorandum has expired. Signs marked Four and Five have no current permit tag attached thereto. The Respondent admitted that there was no current permit for Sign number Six and the sign was in violation. The parties agreed that the sign may not be eligible for a permit.
Recommendation Remove each of the subject signs designated; Sign Two, Three, Four, Five and Six. Invoke the penalties provided for by Section 479.18 to wit: "479.18 Penalties. - Any person, violating any provision of this chapter whether as principal, agent or employee, for which violation no other penalty is prescribed, shall be guilty of a misdemeanor of the second degree, punishable as provided in Sec. 775.083; and such person shall be guilty of a separate offense for each month during any portion of which any violation of this chapter is committed, continued or permitted. The existence of any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon." DONE AND ENTERED this 8th day of February, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Blvd. Winter Park, Florida 32790
Findings Of Fact On September 1, 1980, Bill Salter Advertising, Inc., executed a lease agreement with Edward M. Chadbourne to erect outdoor advertising signs facing north and south on the Chadbourne property 190 feet east of the intersection of State Road 742 and State Road 291 in Escambia County, outside the city limits of Pensacola. This lease was renewed for calendar year 1981-1982 and calendar year 1982-1983. The third renewal expires on August 31, 1983. On August 4, 1981, Bill Salter Advertising, Inc., applied to the Department of Transportation for permits to erect outdoor advertising signs located 190 feet east of the intersection of State Road 742 and State Road 291 facing north and south. At the time of this application, Bill Salter Advertising, Inc., held the property under the above lease. On August 17, 1981, the Department of Transportation approved the application for permits. On April 15, 1982, Bill Salter Advertising, Inc., executed an affidavit to cancel its permits at the location 190 feet east of State Road 742 and State Road 291 facing north and south in order to get a more advantageous position for the erection of an outdoor advertising sign. On February 23, 1982, Bill Salter Advertising, Inc., executed a lease agreement with Felix Bell to erect outdoor advertising signs on the Bell property at a location on State Road 291, 190 feet east of the intersection of State Road 742 and State Road 291 in Escambia County, outside the city limits of Pensacola. On April 12, 1982, Bill Salter Advertising, Inc., applied to the Department of Transportation for permits to erect signs facing north and south on State Road 291, 190 feet east of the intersection of State Road 742 and State Road 291. At the time of this application, Bill Salter Advertising, Inc., held the property under the Bell lease. On April 27, 1982, the Department of Transportation approved this application for permits. On October 12, 1982, the Petitioner, Lamar Advertising Company, applied to the Department of Transportation for permits to erect outdoor advertising signs on State Road 291, 218 feet north of State Road 742. This location is not a Federal-Aid Primary or Interstate Highway, and it is outside the city limits of Pensacola, in Escambia County. As such it is subject to the spacing requirements of the Escambia County ordinance regulating outdoor display advertising. Such application was submitted by the Petitioner, Lamar Advertising Company, after Bill Salter Advertising, Inc., had cancelled its permits at the location, 190 feet east of the intersection of State Road 742 and State Road 291, and after the Department of Transportation had approved the application for permits submitted by Bill Salter Advertising, Inc., for locations 190 feet east of the intersection of State Road 742 and State Road 291 on the Felix Bell property. The location for which Lamar Advertising Company seeks permits is less than 500 feet from the permitted locations of Bill Salter Advertising, Inc., at 190 feet east of the intersection of State Road 742 and State Road 291.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Lamar Advertising Company for permits to erect signs facing north and south on State Road 291, 218 feet north of State Road 742, in Escambia County, Florida, be DENIED. DONE and RECOMMENDED this 18th day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1983. COPIES FURNISHED: P. Michael Patterson, Esquire 905 West Moreno Street Pensacola, Florida 32501 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32501 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2001.
The Issue There are three issues presented: Whether the signs in question were erected at such a time and under such conditions that would entitle them to be permitted; Whether the signs in question, if not entitled to a permit, have some type of grandfather status where the owner would be entitled to compensation for the removal; and Whether the signs in question qualify as on-premise signs not requiring a permit. Both parties submitted detailed proposed recommended orders, which have been read and considered. There are few disputes concerning the basic facts. To the extent the findings herein differ from the proposals, those findings are based upon the most credible evidence. Certain findings have been deleted because they are not relevant to the issues or are not findings of fact.
Findings Of Fact The signs in question in Cases No. 81-1672T and 81-1675T are on the north-facing wall of the "El Okey Market" at 1630 NW 27th Avenue in Miami, Florida. Each sign is an aluminum framed poster six by 12 feet. An inspector of the Department of Transportation (Department) Investigated the signs at the El Okey Market in March of 1981, and notices of violation were issued to Empire Outdoor Advertising (Empire) on May 11, 1981. The parties stipulated that the inspection revealed neither sign bears a valid outdoor advertising permit issued by the Department. The signs are visible to traffic traveling south on 27th Avenue and are located within 660 feet of the right of way Empire has acknowledged owning the signs in question The inspector's investigation of the El Okey Market signs also revealed the existence of a permitted outdoor advertising sign, owned by another sign company, which is located approximately 70 feet south of the Empire signs and which also faces north. The Department introduced into evidence a map, certified by a Department official, which shows the Federal-Aid Primary Highway System for the Miami area as it existed in 1979. The inspector located the El Okey Market on the map, which indicates that that portion of 27th Avenue was a Federal-Aid Primary Highway in 1979. No contrary evidence was introduced. At the location of the subject signs, 27th Avenue is a Federal-Aid Primary Highway. The Vice President and General Manager of Empire testified that the present company evolved from a firm called Peppi Advertising Company started by his father, and that he had been employed by the company since the early 1950's. The firm was sold to Donnelly Advertising and then to Ackerly Communications, and continued to operate as Empire. The firm obtained a building permit on June 6, 1965, for the erection of billboard-type signs on the side of the building located at 1630 NW 27th Avenue. The Vice President testified it was company policy to erect signs shortly after the permit was issued. He further testified that he serviced the poster through the 1960's. The signs in question were erected in 1965, and have been in existence since that date. No permits were applied for when the signs became subject to regulation in 1971. Photographs had been taken of the signs in question showing advertising copy on July 15, 1982, to consist of Kraft Mayonnaise and EverReady Energizer Batteries. Advertising copy on June 24, 1982, shows Kraft Cheese and J & B Scotch in Spanish. The above items are products of national companies who pay Empire to advertise their products. Empire pays the El Okey Market for the privilege of placing the signs on the wall of the market. The signs in question are not on-premise signs. Patrick D. Galvin, the Department's Administrator for outdoor advertising, testified that it is the Department's policy to deny permits to signs lawfully erected within the city limits prior to the date such signs became subject to Chapter 479, Florida Statutes, where the sign is less than the prescribed distance from a second sign which has obtained a valid outdoor advertising permit from the Department. It is the inspector's practice to recommend that a permit be issued to applicants where the sign in question has no permit but was built before the date permits became required and is otherwise a lawful sign. The Department admitted policy is that lawfully erected signs may lose their grandfather status as nonconforming signs under Chapter 479 and may thus become subject to uncompensated removal because the owner failed to obtain a permit within the 60-days period which followed the effective date of Florida's outdoor advertising regulations.
Recommendation The Department of Transportation has shown that the signs in question are subject to removal because they have been in existence for more than five years since they became nonconforming. The Department may remove the signs at anytime upon payment to the owner for full value of the subject signs which were erected prior to December 8, 1971. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 L. Martin Reeder, Jr., Esquire Jeffrey Bercow, Esquire 1400 SE Bank Building Miami, Florida 33131 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether 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
The Issue Whether the sign of Respondent violates Section 479.07 and Section 479.02, Florida Statutes by violation of the permit and spacing requirements of the Outdoor Advertising Act.
Findings Of Fact An application was made for a permit for the subject sign and the application was denied on the basis that the sign was within the 500 foot spacing requirement, the sign being erected approximately in the middle of the distance between two outdoor advertising sign which are approximately 500 feet apart. The sign advertises Oaks Trading Post. The sign has been erected for many years and has carried messages such as "Elect Askew for Governor" and "Vote Democratic" or other political advertisements. The sign now advertises a commercial establishment and has since, at least, December of 1976. This sign does not bear a permit although the Respondent admitted that it is a commercial sign. 3.. The Respondent has paid the required license fees for the subject sign for more than the last 20 years to the City of Rockledge, Florida.
Recommendation Remove the subject sign. DONE AND ORDERED this 10th day of February, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Anthony Ninos 112 Riverside Drive Cocoa, Florida 32922
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
Findings Of Fact On October 13, 1981, Henderson Signs filed applications for four permits to erect two outdoor advertising signs in Jackson County, Florida, on the south side of Interstate 10, one approximately 2.65 miles and the other approximately 2.85 miles east of SR 276. These applications were field inspected by the Department's outdoor advertising inspector and by his supervisor, they were approved on or about November 2, 1981, and the Department issued permits for the requested locations to Henderson Signs. Subsequent to the issuance of these permits, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in the permits which authorized the subject signs to be erected. On or about March 23, 1983, the Respondent filed outdoor advertising permit affidavit forms requesting that the Department issue replacement tags for the subject signs because the tags previously issued had been lost. The Department replaced the older permit tags with new tags numbered AI998-10, AI999-10, AJ001-10 and AJ002-10. A business known as Brooks Construction Company is located within 800 feet of each of the subject sign locations. At various times some construction equipment can be seen parked in the vicinity of Brooks Construction Company. Although the view from 1-10 is partially obstructed by trees, this equipment might be seen from the interstate if one were looking at the right spot. Also, a small on-premise sign is located at this site, but the view of this sign is no better from 1-10 than the equipment is. The business known as Brooks Construction Company is located in a structure that resembles a brick residential building, which is used as a residence. A portion of this residential building is visible from 1-10, but is as obscured from view as the equipment and the sign are. The area where the subject signs are located is rural in nature. There is nothing about the building used by Brooks Construction Company that would indicate to a traveler on 1-10 that anything other than a residence was located at this site, even if the traveler were able to see this building from the interstate. Prior to the transfer of the permits from Henderson Signs to the Respondent, a representative of the Respondent testified that he inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. He further testified that he received assurance from the Chipley district office that these permits were legal permits. This testimony, however, is self-serving and uncorroborated, and thus is not of sufficient quality to support a finding of fact. Henderson Signs submitted the applications for the subject permits, and designated thereon that the proposed locations were in an unzoned commercial area within 800 feet of a business. These applications also certified that the signs to be erected met all of the requirements of chapter 479, Florida Statutes. During the summer of 1984, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued notices of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AI998-10, AI999-10, AJ001-10 and AJ002-10, held by the Respondent, Tri-State Systems, Inc., authorizing two signs on the south side of I-10, 2.65 miles and 2.85 miles east of SR 276 in Jackson County, Florida, be revoked, and the subject signs removed. THIS RECOMMENDED ORDER entered this 6th day of August, 1985, 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 6th day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Honorable Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
