Findings Of Fact Petitioner submitted applications on 13 June 1978 for signs facing north and south on I-110 0.433 miles north of SR 296 and these applications were denied by Respondent because the sign would not be located more than 800 feet from the noted business activity. The testimony produced at the hearing related solely to the distance the proposed sign would be located from an existing sign owned by and permitted to Lamar Outdoor Advertising. Petitioner's position at the hearing was that his application for a permit should be granted because the Lamar sign upon which the denial of his application was allegedly based was illegal because located less than 500 feet from the beginning of an on-ramp to the I-110. There was no dispute regarding the facts in this case. The position in which Petitioner intends to locate the proposed sign is less than 1,000 feet from a sign previously permitted to Lamar Outdoor advertising. The hearing in Docket No. 78-2179T was held the same date as the hearing in this case and it was there found as a fact that the Lamar sign is located less than 500 feet from the beginning of the on-ramp at the I-110.
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 Whether the sign against which the Department of Transportation issued Notice of Violation 10B ST 2001 502, violates Chapter 479, Florida Statutes, so that the sign must be removed.
Findings Of Fact 1. On January 30, 2001, DOT issued Notice of Violation 10B ST 2001 502, against a billboard sign located adjacent to Interstate 95 (I-95), 7.998 miles north of the Flagler County line in St. Johns County. The notice alleged that the sign violates Chapter 479, Florida Statutes, in that it is unpermitted. DOT contends that the sign advertises for the Café Erotica restaurant, a business establishment not located on the same premises as the sign, and that there is no visible business occurring on the premises where the sign is located. 2. I-95 is part of the Interstate Highway System. The sign is located within 660 feet of the nearest edge of the right-of-way of I-95, and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. 3. The sign is a "permanent" one and has never been permitted by DOT. 4. Respondent Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name, pursuant to Section 607.0401, Florida Statutes. It will hereafter be referred to as "Exit 94, Inc." 5. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of Exit 94, Inc. Mr. Sullivan is also president and principal of approximately 35 other Florida corporations, including two outdoor advertising companies (sellers and lessors of billboards), named "Sunshine Outdoor" and "Interstate Billboards," and also of Café Erotica of Florida, Inc., d/b/a Café Erotica. Mr. Sullivan has decision-making authority over Exit 94, Inc., and the Café Erotica restaurant. He is knowledgeable about DOT sign permitting requirements. 6. Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. The Café Erotica restaurant is a 24-hour per day, full-service restaurant, accessible from exit number 94 of I-95. It also features dancers clad in bathing suits and sells adult toys. 7. Exit 94, Inc., does not, and never has, provided food, adult toys, or bare people at the subject location or anywhere else. 8. The parties' stipulation herein, incorporating photographs which are also in evidence, demonstrates that the sign which is the subject of this proceeding is a permanent billboard reading, "CAFE EROTICA," "WE DARE TO BARE," "GREAT FOOD," "ADULT TOYS," "EXIT 94, INC." This is not an exact statement of Respondent Exit 94, Inc.'s, authorized corporate name, due to the juxtaposition of the phrases, "Great Food" and "Adult Toys" and the sign's failure to include the slashes separating the phrases. The paint colors on the sign call the viewer's attention to the phrases, "CAFE’ EROTICA," "WE DARE TO BARE," "GREAT FOOD," "ADULT TOYS," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, and relatively inconspicuous. As of the date of hearing, the abbreviation "INC." had been painted a different color than it was at the time the violation notices were issued, but otherwise the sign is the same. 9. Affixed to the bottom portion of two of the five poles supporting the foregoing sign is a bright yellow placard which states, "FISH CAMP," with a telephone number. This placard is not nearly as large as the billboard facing and is less visible, but its message also can be seen from I-95. 10. Exit 94, Inc., owns the subject sign(s), but not the real property on which it is located, as more fully described below. 11. The subject sign is located on real property owned by Leo Giannini. Mr. Giannini's real property is not contiguous to real property owned by Exit 94, Inc. 12. Exit 94, Inc., does own eleven acres of non-contiguous real property located about eight miles distant from the subject billboard, near exit 94 of I-95, where Exit 94, Inc., is currently developing a fishing and hunting camp. See, Department of Transportation v. Café Erotica of Florida, Inc. d/b/a Café Erotica/We Dare to Bare/Adult Toys/ Great Food/Exit 94, Inc., DOAH Case No. 00-4188T, etc. 13. Mr. Giannini's subject property is located in the southeastern quadrant of the exit 93 intersection of SR-206 and I-95. At various times, he has rented all, or some part of, this property to Mr. Sullivan's outdoor advertising corporations, Sunshine Outdoor and Interstate Billboards, for the placement of trucks and/or billboards, and to Exit 94, Inc.? 14. Mr. Sullivan testified that he never intended to develop a hunting and fishing camp on Mr. Giannini's exit 93 southeastern quadrant property because it is completely dry, although he once intended to develop a pond on the northwestern quadrant of exit number 93, part of which quadrant is also owned by Mr. Giannini. 15. According to Mr. Sullivan's testimony, Exit 94, Inc., leases Mr. Giannini's subject property in the southeastern quadrant of exit 93, mainly for the advertising which Mr. Sullivan has painted on the window of the abandoned gas station located on the Giannini property, which advertising includes the large words, "Fish Camp," the smaller words, "Guided Tours," and the same phone number as is on the yellow placard affixed to the subject sign. According to Mr. Sullivan, this phone number is provided so that customers can call Exit 94, Inc., to schedule fishing tours to locations other than the camp owned by Exit 94, Inc., at exit 94, which as yet has no fish or pond suitable for fishing. 16. Mr. Giannini's southeastern quadrant property at exit 93, is made up of two contiguous parcels, which he purchased at different times. One parcel is 2.3 acres and contains the abandoned gas station made of concrete, with pumps (tanks removed), and some cracked and weed-encroached concrete parking areas around them. This parcel's entrance is on SR-206, 150 yards to the northeast of the subject sign, and its address is 955 West SR-206, St. Augustine, Florida. 17. The other contiguous parcel owned by Mr. Giannini is approximately 4.5 acres and contains the poles and unpermitted sign which is the subject of this proceeding. This parcel's entrance also is on SR-206, but it has a different entrance than the one for the abandoned gas station. This parcel also bears a different address on West SR-206 than the abandoned gas station. 18. Neither of Mr. Giannini's parcels bears the same address as Exit 94, Inc.'s, occupational/business license from St. Johns County, which is "985 SR-206 West, St. Augustine, Florida." Assuming Exit 94, Inc.'s, license should have read, "985 West SR-206," that still is not the same address as either of the parcels in Mr. Giannini's southeastern quadrant property, Exit 94, Inc., admittedly does no business out of any "985" address. 19. Although Mr. Sullivan testified that Exit 94, Inc., operates out of both the abandoned gas station location at exit 93 and the non-contiguous camp location north of exit 94, corporate records for Exit 94, Inc., indicate the corporation operates out of a physical location at 7605 Southeast Williston Rd., Gainesville, Florida 32608, with a business address of P.O. Box 1069, Micanopy, Florida, 32667. 20. Mr. Giannini signed the current lease with Exit 94, Inc., at the request of the general manager of the Café Erotica restaurant. He also signed the current Exit 94, Inc., lease at the physical location of the Café Erotica restaurant on April 13, 2000. 21. The Café Erotica restaurant currently advertises in the phone book, on its premises, and on a billboard at exit number 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I-95 in St. Johns County. Café Erotica no longer rents billboards in these locations.? 22. The advertisements for Café Erotica restaurant currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. 23. Mr. Giannini thought that in 1999, he had leased space in front of the abandoned gas station on his smaller parcel, to Exit 94, Inc., as a place to park Exit 94, Inc.'s, trucks, but Mr. Sullivan maintained that in 1999, Exit 94, Inc., had rented the space in front of the abandoned gas station on the smaller parcel and part of the larger parcel where Exit 94, Inc., had erected a billboard displaying exactly the same language as is on the current subject billboard. However, it is undisputed that poles which are now empty, but which abut the subject billboard, previously held a lighted billboard owned by Exit 94, Inc., which previous billboard carried exactly the same language as the sign which is the subject of these proceedings. 24. There currently is a dispute between Mr. Giannini and Exit 94, Inc., as to what portion of Mr. Giannini's two contiguous parcels at exit 93 is currently leased to Exit 94, Inc., under a new lease signed on April 13, 2000. Mr. Giannini contends that he leased only the western half of the concrete gas station to Exit 94, Inc., and gave Exit 94, Inc., no authority to construct the subject sign currently on the larger contiguous parcel. However, Exit 94, Inc., contends that it is currently leasing the western half of the concrete gas station, plus a part or "strip" of Mr. Giannini's parcel upon which the subject sign is located. This dispute is currently the exclusive jurisdiction of the circuit court due to Exit 94, Inc.'s filing of a lawsuit claiming Mr. Giannini has denied the corporation access to the leased property. For that reason, and because the testimony herein of the lessor and lessee does not even agree on which real property descriptions were, or should have been, attached to the lease in evidence (P-7 and R-2), the issue cannot be resolved in this forum. 25. Exit 94, Inc., does not intend to, has not, and cannot, provide fishing on the dry parcel(s) at issue. Exit 94, Inc., has taken steps to provide fishing in the future on its own non-contiguous real property, eight miles away, designated as its "hunting and fishing camp," but to date, the pond there is only being filled and is not stocked with fish. 26. The abandoned gas station building on the subject property is only about 25 by 60 feet. It remains locked at all times. Whether one believes Mr. Sullivan that he recently has been locked out by Mr. Giannini or simply believes his testimony that he kept the building locked himself most of the time, it is clear that the inside of the building has seldom, if ever, been used by Exit 94, Inc., except for the placement of a desk and telephone. This finding is supported by the photographs of most of the interior, showing trash, dust, and a single desk pushed into a corner. It is undisputed that Exit 94, Inc., employees have never regularly manned the "office" at this location. 27. There are no public phones or functioning public rest rooms on the property. 28. Mr. Sullivan testified that the phone number he had painted on the window of the abandoned gas station does not ring 10 at that location. Instead, it rings in his truck. If he is out of town, he "sometimes" has an employee or his wife check truck phone's messages.* One can only conclude that Exit 94, Inc.'s, "business" at the subject property is not full-time, important, or primary. 29. The concrete paving surrounding the abandoned gas station on the subject property is breaking up. It has tufts of grass and brush growing out of its cracks. There is general trash and old tires in the area. The concrete paving presents a danger to most motor vehicles which might enter and cannot be reasonably considered "handicapped parking or access" as suggested by Mr. Sullivan. At the present time, stone barriers bar the entrance to the abandoned gas station parcel or at least impede access by most motor vehicles trying to enter this parcel. The greater weight of the credible evidence shows these barriers may be susceptible of being moved temporarily but that they have been in a position blocking that entrance almost continuously since 1994. 30. Exit 94, Inc., has paid $1500 per month in rent to Mr. Giannini each month since June (not April) 2000. Mr. Sullivan admits that, regardless of which business entity rented all or part of Mr. Giannini's property at any given time, the grass has only been mowed twice in two years. Apparently, only the grass around the subject sign was mowed. 11 31. No Exit 94, Inc., inventory is stored on the subject property. If there once were fishing rods and equipment stored in the abandoned gas station which have recently been stolen, as contended by Mr. Sullivan, these items still were not integral to Exit 94, Inc.'s, business, because there is no evidence they were ever rented or loaned to customers. Mr. Sullivan only testified that these items were stored for use by customers for Exit 94, Inc.'s, fishing tours to locations not owned by Exit 94, Inc. 32. Mr. Giannini uses the eastern end of the abandoned gas station building to store items for his own several corporations. He goes by the location almost daily and sometimes at night. He pays the electricity charges for the whole building so that he can use the premises at night. The electric bill has been in his name as long as he has owned the parcel containing the abandoned gas station. Since signing the April 13, 2000, lease with Exit 94, Inc., he has seen no signs of activity by Exit, 94, Inc., on either parcel. 33. Tom Simmons, DOT sign inspector, inspected the subject location for DOT on several occasions over the 18-19 months prior to issuing the notice of violation herein on January 30, 2001. During this period of time, he afforded the benefit of the doubt that some commercial venture was in development at the site and that any advertising on the premises therefore would 12 constitute an on-premises sign, exempt from DOT permitting and subject to regulation only by St. Johns County. 34. Mr. Simmons became aware of the subject sign when it was under construction about September 8, 2000. At that time, he assumed that the premises would become operational for Exit 94, Inc., because he understood that Exit 94, Inc., had applied for a St. Johns County building permit involving electrical and plumbing connections at that location. However, he inspected the subject location on September 8, 2000, January 3, 2001, January 23, 2001, and January 30, 2001, and never saw any business activity or productive enterprise. 35. James L. Acosta is the Supervisor of Code Enforcement for St. Johns County. He inspected the subject property in September 2000, November 2000, January 2001, and on April 4, 2001. At no time has he observed any business activity or productive enterprise on the property. He has recently issued a violation citation to Mr. Giannini, as the owner of the real property, requiring him to remove the subject sign. 36. St. Johns County has never issued a building permit for the subject sign. 37. Testimony and business records of charges by, and payments to, Exit 94, Inc., demonstrate only that other business entities controlled by Mr. Sullivan or his family members have paid for some use of the real property owned by Exit 94, Inc., 13 and designated as its "hunting and fishing camp," which property is not contiguous to the subject property. (See Finding of Fact 12.) It was not proven that any fishing tours embarked from the subject property to the owned property or to any other location. There was no affirmative evidence of where the other alleged fishing locations might be. The business records bore the Micanopy address of the corporation. (See Finding of Fact 19.) It was not demonstrated that the business records were stored at the subject property. 38. There is no evidence that any member of the general public has utilized Exit 94, Inc.'s, hunting and fishing services, and due to the relationship of Exit 94, Inc.'s, recorded "customers" to Mr. Sullivan and his various corporations, it may be inferred that none of these "customers" were procured, lured, enticed, or secured by the advertising or his telephone number on the window of the abandoned gas station or on the subject sign. 39. Exit 94, Inc., currently operates at a loss, made up as necessary by personal loans from Mr. Sullivan. 40. Exit 94, Inc.'s business records suggest that its only expenditures at the subject location have been for rent and construction of the subject sign and that all its other expenditures have been for its trucks and its owned real property located at exit 94. There was no affirmative 14 demonstration that any other expenditures were specifically linked to the subject location. 41. Exit 94, Inc., failed to demonstrate what the minimal level of meaningful activity customary for a hunting and fishing corporation might be, and further failed to demonstrate that a minimal level of activity had occurred at the subject location. 42. Exit 94, Inc., attempted, through two examples, to show that Mr. Simmons's original determination not to cite the subject sign and DOT's determination not to cite certain other signs in the vicinity constituted a custom and usage of the agency, which custom and usage, if applied in this case, would cause the subject sign to be considered an on-premises sign. "Bulls Chip" signs on Bulls Chip trucks and farm equipment parked on real property owned and contiguous to the Bulls Chip factory, were not charged with sign violations because DOT viewed these as on-premises signs. A "Smiley's" truck parked in a flea market parking lot where the truck owner owned and/or leased space to sell specific items under the name on the truck was originally considered an "on-premises" sign by DOT personnel and not cited. When it was determined that the truck owner no longer had business activity or ownership rights at the site, the "Smiley's" truck was cited. These examples are clearly distinguishable from the instant situation. 15
Conclusions That the Department of Transportation enter its final order declaring illegal the subject unpermitted sign owned and maintained by Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., and ordering removal of the sign in accordance with a reasonable time frame to be determined by the Department. 23 A DONE AND ENTERED this ce day of July, 2001, in Tallahassee, Leon County, Florida. Gilhel deun ELLA ‘JANE P. DAVIS 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 Lafy day of July, 2001.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue The issue in this case is whether the Department of Transportation (“Department”) properly issued a Notice of Denied Outdoor Advertising Permit Application for the eastward face of the Monument Sign owned by Kathryn Hogan Pereda and Margaret Hogan Marker, d/b/a/ HFT Advertising (“Petitioner” or “HFT”).
Findings Of Fact In 1979, Petitioner’s family acquired the property at 2930 Southwest 30th Avenue, Pembroke Park, Florida. The family’s parcel is part of a subdivision of several smaller parcels, which houses a number of different businesses. Subsequently, Petitioner’s grandparents purchased the sign parcel, which was conveyed to Petitioner in 1989. The original sign on the sign parcel was the Coral Base Sign (“Coral Base Sign”). The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 660 feet of, and visible from, interstate highways. In approximately 1991, Petitioner replaced the Coral Base Sign. HFT retained a contractor to construct the new sign (“Marquee Sign”). HFT made sign space available to other Southwest 30th Avenue businesses on the Marquee Sign. The Marquee Sign was built as a free-standing sign that was 10 feet wide and 15 feet high and was permitted through the Town of Pembroke Park. When the contractor built the Marquee Sign, he did not remove the footings from the original Coral Base Sign to build the new sign. Instead, footings for the new sign were placed immediately contiguous to the Coral Base Sign footings on the CSX railroad property. In 1994, HFT went back before the Town of Pembroke Park and obtained approval through a variance proceeding for a permit to add another section to the Marquee Sign and made it with two faces 15 feet high and 20 feet wide. The expansion allowed more businesses in the subdivision to advertise. In 2010, the Department notified Petitioner that the Marquee Sign was located within the Department’s right-of-way. By letter dated May 28, 2010, the Department informed Petitioner “per Florida Statutes, signs are prohibited to be within the right-of-way and will need to be relocated onto property owned by Margaret Claire Hogan and Kathryn Anne Hogan.” Petitioner believed the Marquee Sign was on their family’s sign parcel but found out after a survey that the sign was not on their property but on the right-of-way. In 2011, Petitioner complied with the Department’s request to relocate the sign. HFT obtained another permit from the Town of Pembroke Park and removed the Marquee Sign from the Department’s right-of-way. Petitioner spent approximately $50,000.00 permitting, designing, and erecting the current HFT Monument Sign (“Monument Sign”) back in the location east of the sign parcel where the Coral Base Sign had stood originally. The only viable use of the parcel on which the Monument Sign is located is the operation and maintenance of the Monument Sign. Space on the Monument Sign is leased by Petitioner to the owners/operators of the Southwest 30th Avenue businesses for the purpose of identifying the location of their respective businesses to their customers and potential customers. The Monument Sign does not identify any businesses other than the Southwest 30th Avenue businesses. The Monument Sign is located within the controlled area of both Hallandale Beach Boulevard and I-95. I-95 is part of the interstate highway system. The eastward face of the Monument Sign is visible from the main-traveled way of I-95. A Clear Channel Sign is on the same side of I-95 as the Monument Sign. The Clear Channel Sign was permitted by the Department in 1984. It is located approximately 250 feet to the south of the Monument Sign. On August 2, 2013, Mark Johnson (“Johnson”), a Regional Outdoor Advertising Inspector with the Department, performed an inspection of the Monument Sign and determined that it is an illegal and unpermitted sign. Johnson posted a Notice of Violation on the Monument Sign stating the sign was in violation of the permitting requirements of section 479.07, Florida Statutes (2015). On August 5, 2013, the Department issued four Notices of Violation-Illegally Erected Sign to the Town of Pembroke Park and the four businesses advertised on the Monument Sign. The Notices of Violation apprised the owners that the Monument Sign was in violation of section 479.105 and that within 30 days the sign either needed to be removed or an outdoor advertising permit application needed to be filed with the Department. Administrative hearing rights and permit application instructions were also made available in the Notices of Violation. However, no request for an administrative hearing was received by the Department. On September 4, 2013, HFT submitted two outdoor advertising permit applications numbers 59865 and 59866 for the eastward and westward faces of the Monument Sign, which was erected in 2011. On September 6, 2013, the Department returned HFT’s applications as incomplete. On October 15, 2013, HFT submitted two outdoor advertising permit applications numbers 60016 and 60017 for the eastward and westward faces of the Monument Sign. On November 12, 2013, the Department denied Petitioner’s applications for permit. The Notice of Denied Outdoor Advertising Permit Application provided the following basis for denial: Sign does not meet spacing requirements (1500’ for interstates, 1000” for FAP). In conflict with permitted sign(s), tag#(s): CG242/243. Held by: Clear Channel Outdoor- South Florida Division. [s. 479.07(9)(a), 1.,& 2, FS] On December 17, 2013, HFT timely filed a Request for Formal Administrative Hearing contesting the Department’s exercise of permitting jurisdiction and the denial notice. HFT does not dispute that: (i) I-95 is an interstate highway within the Department’s permitting jurisdiction; (ii) the HFT Monument Sign is within 660 feet of the nearest edge of I-95; or (iii) the HFT Monument Sign is located within 1500 feet of another permitted sign on the same side of I-95. On January 6, 2014, the Department determined the westward face of the Monument Sign was not visible from I-95 and met the spacing requirement for Hallandale Beach Boulevard. The Department issued permit number 56688 for the westward face of the Monument Sign but did not permit the eastward face.
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 upholding Petitioner HFT’s Notice of Denied Outdoor Advertising Permit Application for the eastward face of the Monument Sign. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2015.
Findings Of Fact Petitioner owns land adjacent to, west of, and within 600 feet of Interstate 95 in Port St. Lucie County, Florida. The land comprises approximately 17.7 acres and is not within the city limits of a municipality. The land is designated commercial in the Comprehensive Plan adopted by the County. The zoning designation was changed on March 27, 1990, for one half acre of the land approximately 2000 feet north of Okeechobee Road. The zoning designation for that half acre was changed from Commercial to Commercial General pursuant to Resolution 90-80. The purpose of the change in zoning designation, as stated in Petitioner's Petition for Change to the Official Zoning Atlas of St. Lucie County, was to permit the construction of an advertising billboard. The change in zoning designation obtained by Petitioner was necessary to permit the location of a sign on Petitioner's half acre. No ordinance or other local regulation defines the uses permitted for land designated in the County's Comprehensive Plan as Commercial. 1/ The Chairman of the Board of County Commissioners for St. Lucie County explained in a letter dated February 6, 1991, that the zoning designation of Commercial allows and encourages the application of the Commercial General zoning designation. The letter did not state that a change in zoning designation from Commercial to Commercial General was unnecessary in order to permit the location of a sign on Petitioner's half acre. Petitioner elected to apply to the County for a change in zoning designation from Commercial to Commercial General, and the County approved Petitioner's application. Petitioner applied for a sign permit on July 3, 1990. Respondent denied Petitioner's Application For Outdoor Advertising Sign Permit on July 26, 1990, on the ground that the change in zoning designation for one half acre of the land was enacted specifically for billboards in violation of Section 479.07(10), Florida Statutes. 2/ The Chairman of the Board of County Commissioners determined in his letter dated February 6, 1991, that Respondent's determination of "spot zoning" is invalid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for a sign permit be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of April, 1991. DANIEL MANRY 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 Administrative Hearings this 5th day of April, 1991.
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue Whether the Respondent has violated Section 479.02, Florida Statutes, and Section 479.07, Florida Statutes, for failure to display a visible permit tag and for a multiplicity of advertisers on one side of Board No. 0399B.
Findings Of Fact A violation notice was issued on October 18, 1976, Respondent sign company citing an advertising sign located 10.14 miles south of U.S. 1; 528 north of 520 with copy thereon advertising the businesses of 13 restaurants. At the hearing testimony was heard and evidence was received showing that a permit tag was affixed to a pole of the outdoor advertising structure. The tag was not clearly visible and is difficult to be seen inasmuch as the copy of the board has been nailed on the pole immediately above the permit tag. Testimony was received and an exhibit entered which shows that the entire face of the sign is covered with outdoor advertising. Lettering at the top of the sign states "EAT OUT ENJOY THE INFORMAL FAMILY ATMOSPHERE OF MERRITT ISLAND". The lettering on the bottom board of the sign which is a separate board attached to the main board has the lettering, "TURN RIGHT ON 520". The remainder of the board shows individual advertisements of 13 different places to eat. The Petitioner contends: (1) that the permit tag is not clearly visible as required by the law; (2) that the sign is in violation of Section 479.02(1) and the Governor's Agreement promulgated thereto inasmuch as it displays more than two (2) signs. Respondent contends: (1) that the permit tag is clearly visible; (2) that one advertiser bought the copy and the sign displays but one advertisement.
Recommendation Have the Respondent move the permit tag into a more visible position as required by the statutes. Dismiss the charge as to a violation of the Governor'S Agreement. DONE and ORDERED this 29th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Rowland, Esquire 115 East Morse Boulevard Winter Park, Florida 32789
Findings Of Fact Two signs advertising Blue Waters Motel and located in the vicinity of said motel are located in the right-of-way of Highway US 1. The location of these signs was fixed by a survey conducted by a Florida registered land surveyor with reference to official Department of Transportation right-of-way maps developed from the official court records of property ownership.
Recommendation Having shown the subject signs to be in violation of Section 479.11(6), Florida Statutes, the Department of Transportation should give the owner of the signs 30 days to remove the signs. If the signs are not removed within that time period, the Department should remove the signs from its right-of-way. DONE and ORDERED this 8th day of April, 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 8th day of April, 1982. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ms. Jane Cerchio c/o Cerchio Drive and Rifle Camp Road West Paterson, New Jersey 07424 and c/o Blue Waters Motel 222 Overseas Highway, MM48 Marathon, Florida 33050 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the signs referred to in Violation Notice Number 1-17-104 and 1-17- 105 dated February 5, 1991 are exempt from the permitting requirements of Chapter 479, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, the Respondent owned Lots 2 and 6 of Block H, Corrected Plat of Bay Point located in an unincorporated area of Sarasota County, Florida. Lots 2 and 6 are immediately east of, and adjacent to, Lots 1 and 7 of Block H, Corrected Plat of Bay Point. Lots 2 and 6 are also located north of Magnolia Avenue and South of Palmetto Road. Lots 1 and 7 are located immediately east of, and adjacent to, U.S. Highway 41 and north of Magnolia Avenue and south of Palmetto Road. Respondent owns and maintains apartments on Lots 2 and 6 which he offers for rent. At all times material to these proceedings, Respondent owned and maintained two "Apartment for Rent" signs which were located on Lots 1 and 7. These signs advertised that the Respondent's apartments located on Lots 2 and 6 were for rent. Respondent has never owned or held an interest in Lots 1 and 7, and there was no evidence that Respondent retained a property right in Lots 1 and 7 to maintain the "Apartment for Rent" signs on the premises of Lots 1 and 7. Presently there is a small shopping mall located on Lots 1 and 7. The Respondent does not own or have any interest in this shopping mall, or have any type of establishment located on the premises of Lots 1 and 7. The signs in question advertise the Respondent's apartments located on Lots 2 and 6 exclusively, and do not advertise any product which can be obtained in the mall. The signs in question are not permitted by the Department and the Respondent has not applied to the Department for a permit. The signs in question come within the definition of sign as defined in Section 479.01(14), Florida Statutes, and are visible signs as the term "visible sign" is defined in Section 479.01(23), Florida Statutes. The signs in question were not located on the Respondent's premises as the term premises is defined in Section 479.01(13), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a Final Order finding that the Notice Violation Numbers 1-17-104 and 1-17-105 were properly issued and that the Respondent shall have thirty days from the date of the Final Order to comply with the requirement of Notice Violation Numbers 1-17-104 and 1-17-105 by removing the signs or be subject to the cost of removal by the Department. DONE and ENTERED this 3rd day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 3rd day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Department in this case. Adopted in substance as modified in Findings of Fact 1, 2, and 3. - 4. Adopted in substance as modified in Findings of Fact 7, 4 and 5, respectively. The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Jay O. Barber, Esquire Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32301 Fred Overmyer, pro se 245 Sovrano Road Venice, FL 34285 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building ATTN: Eleanor F. Turner, M.S. 58 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
