The Issue At issue in these consolidated proceedings is whether the permits for signs bearing tag numbers BT339, AE862, and AX116 should be revoked, pursuant to Section 479.08, Florida Statutes (2007).
Findings Of Fact Lamar owns and maintains outdoor advertising signs in the State of Florida. Pursuant to the permitting requirements of Section 479.07, Florida Statutes, the Department issues permits and tags to outdoor advertising signs along interstate and federal-aid primary highway systems. Signs that met permitting criteria at the time they were erected, but that do not comply with subsequently enacted laws or that no longer comply with the law due to changed conditions, may nonetheless be permitted and maintained as "nonconforming signs."1 In compliance with Subsection 479.02(8), Florida Statutes, the Department in 1997 and 1998 conducted a statewide inventory of all signs on the state interstate and federal-aid primary highway systems. This inventory became the database for all signs permitted at the time it was completed. The Department sent the inventory results to all sign owners in order to provide them an opportunity to confirm or challenge the accuracy of the results. The database includes the location of the sign; the dates the sign was permitted and constructed; its date and method of construction; the height, including the Height Above Ground Level ("HAGL"); the height, width, and square footage of the sign facing; the number and type of support structures used; whether the sign is lighted or not; the status of the sign as a conforming, nonconforming, or illegal sign; and other identifying information. Subsection 479.02(8), Florida Statutes, provides that the inventory of signs is to be updated no less than every two years. The Department in fact performs the update every year. In 2004, a series of hurricanes passed through Florida, destroying or damaging thousands of outdoor advertising signs. The Department issued notices of intent to revoke the permits of nonconforming signs that appeared to have been destroyed by the storms. In February 2005, the Department and Lamar entered into a settlement agreement that allowed Lamar to rebuild some signs and required the removal of others. The signs at issue in this proceeding were among those allowed to remain standing with repair. As to these signs, the settlement agreement provided: The outdoor advertising signs referenced above remain lawfully erected nonconforming signs and LAMAR may repair said signs, provided that said repair shall be at the pre-storm location and to pre-storm specifications, including configuration, type of materials, height, size, area of face and lighting. Exceptions to pre-storm specifications will be allowed to the extent required to comply with local building codes. Such repairs shall be completed within 270 days of entry of a Final Order approving this Joint Stipulation of Settlement. The referenced Final Order was entered on March 15, 2005. The Department issued permit numbers 13778 and 137790 and tag numbers BT339 (replaced by tag number CF221 at the time of the hearing) and AE862 to a nonconforming, back-to-back sign located along U.S. 1 in Martin County, .08 miles north of Constitution Boulevard in Hobe Sound. At the time of the 1997 inventory, the Martin County sign was a five-pole wooden structure. The Martin County sign sustained heavy damage during the 2004 hurricanes. After the storms, Lamar sent a work crew to the sign's location to rebuild the sign. The work crew replaced the sign with a four-pole wooden structure. Dave Henry, the real estate leasing manager for Lamar, testified that he gave the crew no particular instruction on how to rebuild the sign. During the rebuilding process, Mr. Henry gave his crews the locations, and told them to rebuild the signs as they had been before the storms. Mr. Henry stated that the crew probably looked at the remains of the damaged sign, saw only four stumps in the ground, and assumed that the original sign had only four supports. On March 21, 2006, the Department issued a Notice to Lamar, stating that the sign bearing tag numbers BT339 and AE862 "has been structurally changed and is no longer substantially the same as it was on the date it became nonconforming, in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code Rule." On February 20, 2007, a Recommended Order was entered in Lamar South Florida v. Department of Transportation, Case No. 06-3281 (DOAH February 20, 2007). In that case, Judge R. Bruce McKibben recommended that the Department withdraw a Notice issued to Lamar South Florida because the Notice failed to specify exactly which changes to the sign in question caused the sign to be in violation of the Department's rules. Rather, the Notice merely provided a citation to Florida Administrative Code Rule 14-10.007(2)(a). In a final order dated May 21, 2007, the Department accepted Judge McKibben's recommendation, and acknowledged the "apparent confusion" regarding the running of the 30-day notice period and the nature of the notice required to trigger the running of that period. As a result of the Lamar South Florida case, the Department began to issue Notices that contained more specific information regarding the alleged violations. On July 31, 2007, the Department sent Lamar a replacement Notice for the Martin County sign, adding a more specific description of the violation, which stated that the sign "has been structurally modified in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code Rule: the number of supports has changed."2 The replacement notice also added the following provision: REVOCATION OF THE PERMIT(S) WILL BECOME FINAL thirty (30) days from your receipt of this notice unless you provide information to the Department showing the Notice was issued in error OR you correct the violation within 30 days of your receipt of this Notice, and provide evidence of the correction to the Department. For nonconforming signs, while you may correct the violation, you may not exceed the allowable maintenance standards as stated in s. 14-10.007(2), F.A.C. Lamar did not act within 30 days of the Notice to correct the violation and restore the Martin County sign to a five-pole structure. Mr. Henry testified that a fifth pole was added to the structure on November 16, 2007. The Department issued permit number 7359 and tag number AX116 to a nonconforming, single-faced sign in Polk County along U.S. 27, .141 miles east of Heatherwood Boulevard in Lake Wales. On November 22, 1997, the Polk County sign was inventoried and photographed as a seven-pole wooden structure. Lamar did not own the sign at the time the 2004 hurricanes damaged it. Lamar acquired the Polk county sign in 2005, after it had been rebuilt as a six-pole structure. On March 21, 2006, the Department issued a Notice to Lamar, stating that the sign bearing tag number AX116 "has been structurally changed and is no longer substantially the same as it was on the date it became nonconforming, in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code." On July 31, 2007, the Department sent Lamar a replacement Notice for the Polk County sign, adding a more specific description of the violation which stated that the sign "has been structurally modified in violation of s. [sic] 14- 10.007(2), Florida Administrative Code: the number of supports has changed. . .".3 The replacement notice also contained the language quoted at finding of fact 14, supra. Lamar did not act within 30 days of the Notice to correct the violation and restore the Polk County sign to a seven-pole structure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation revoking the permits for the nonconforming signs bearing tag numbers BT339, AE862, and AX116. DONE AND ENTERED this 21st day of February, 2008, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 21st day of February, 2008.
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 In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That: Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed. DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Covered in Findings of Fact 1, 3, 4 and 7. Incorporated in Findings of Fact 5 and 6. Incorporated in Findings of Fact 7 and 8. Incorporated in Findings of Fact 2 and 7. Rulings on Proposed Findings of Fact Submitted by Respondent Incorporated in Findings of Fact 1 and 2. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 5. Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 7. Paragraph 1 - approved. Paragraph 2 - approved. Paragraph 3 - approved. Approved. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Rejected as conjecture after the fact. Rejected. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, 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 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of fact entered into by the parties and the entire record compiled herein, I hereby make the following findings of fact: The two signs and four sign faces (hereinafter, the signs) which are the subject of these proceedings are owned by the Respondent and are outdoor advertising signs as defined in Chapter 479, Florida Statutes. One sign is located on U.S. 1, 1.35 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2294T and 86- 2295T) and the other sign is located on U.S. 1, 1.25 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2296T and 86-2297T) The Respondent purchased the signs from the Daley Outdoor Advertising Company in 1984. The signs are adjacent to and visible from U.S. 1 in Monroe County. U.S. 1 or State Road 5, is a federal-aid primary highway. U.S. 1 was open for public use at the time the notices of violation were placed on the signs. All of the signs are located within 660 feet of the nearest edge of the right-of-way of U.S. 1, State Road 5. The area in which the signs are located is zoned "GU". Mr. William Kenney is employed as the outdoor advertising administrator for the Department of Transportation, District VI. On May 29, 1986, Mr. Kenney inspected the signs and noticed that neither of the signs had a state outdoor advertising permit tag attached. At that time, Kenney placed a notice of violation on each sign face. After placing the notice of violation stickers on the signs, Kenney examined the Department of Transportation's office records pertaining to outdoor advertising signs and found no evidence of permit tags having ever been issued for the signs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued declaring that the signs involved in these cases are illegal and must be immediately removed. DONE AND ORDERED this 14th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 14th day of January, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Charles C. Papy, III, Esquire 201 Alhambra Circle Coral Gables, Florida 33134 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether respondent's nonconforming sign was destroyed by an Act of God, and therefore its license should be revoked, or whether respondent's sign was merely damaged and the action taken by respondent constitutes reasonable repair and maintenance of the sign.
Findings Of Fact Harvey's Groves, Inc. is a citrus grower, shipper and retailer. Harvey's Groves has three retail stores in Brevard County. Ten billboards advertise these stores. Two signs advertise the store located at the intersection of I-95 and State Road 50. One of those signs is located one mile north of the intersection and advertises to traffic headed south. The other sign, which is the sign involved in this dispute, is located five miles south of the intersection. It is designed to advertise to northbound motorists, especially tourists on their return trip north. This sign has been in existence since the mid or late sixties. Respondent holds DOT sign permit number 7865-10 for the sign located five miles south of the intersection of I-95 and state road 50. The sign is a nonconforming sign as defined in Chapter 479, Florida Statutes. The sign is located in an area zoned agricultural, and thus would be prohibited except for its nonconforming status. On December 14, 1985, the sign was blown down by a windstorm. All six of the poles which supported the sign snapped a few feet above the ground and below the face of the sign resulting in the rest of the sign structure falling flat on its back. Other than the snapped poles, the sign was only slightly damaged. The two stringers on the top left hand corner of the sign and the top stringer on the right end of the sign had been broken but the remainder of the structure was basically intact. The sign face was still attached to the structure. The majority of the sign face had not been damaged. Mr. Harvey, the only person who saw the sign face prior to its repair, testified that two of the 4' x 8' panels had cracked but were still usable. However, the pictures of the old sign face, introduced-into evidence by respondent, showed that three 4' x 8' panels were missing from the sign face and apparently needed to be replaced. Further, two panels that were in the sign face at the time the pictures were taken contained no copy, and thus appeared to be replacement panels, but no evidence was presented to explain the blank panels. Prior to December 14, 1985, the sign consisted of a 14' x 40' rectangular sign face, with "cutouts" or embellishments which extended the height of the sign at certain points, attached to a sign structure consisting of six perpendicular poles and seven horizontal stringers. The sign face was attached to the stringers which ran the width of the sign. The stringers consisted of 2" x 4" boards which were nailed or spliced together to run the 40' width of the sign. A 2" x 4" board does not come in a 40' length. The poles extended approximately 18 feet above ground level; however, additional boards had been attached to the top of the poles so that the top of the sign extended above the top of the poles. The top two horizontal stringers supporting the sign face were located above the top of the pole that was measured as extending 18 feet above ground level. (R.Ex.#4) The HAGL, or height above ground level, of a sign is measured from the ground to the bottom of the sign face. Immediately prior to December 14, 1985, the HAGL of the sign was approximately 10 feet. However, the evidence was conflicting as to whether the HAGL had always been the same. Mr. King testified that the HAGL was measured in 1976, and at that time the HAGL was five feet. However, although Mr. King personally measured the sign, his testimony was not based on his personal knowledge of the measurement, but was instead based on his recollection of what the DOT records indicated the sign measured. The only record of DOT introduced into evidence, the Outdoor Advertising Inventory Update Listing, listed the HAGL at four feet. However, the computer printout listing alone is not sufficient to establish the HAGL of the sign because there was no competent evidence establishing the source, date, or reliability of the information. Further, other evidence is inconsistent with a 4-foot HAGL. Mr. Wright measured one of the broken poles and determined that the part of the pole still standing was four feet from the ground level to the break on top. However, petitioner's exhibit number 8, which shows the measured pole, notes the location of a 1964 permit tag affixed to the pole. The permit tag is not located on the 4-foot portion of the pole that is still standing; it is located on the portion of the pole that had broken off, and it is located well above the break. Thus, it is apparent that the HAGL could not have been four feet because that would put the permit tag behind the sign face. Petitioner argues that the HAGL had to be only four feet because the broken pole measured 18 feet above ground level and a 14-foot sign face on an 18-foot pole would leave only four feet between the bottom of the sign face and the ground. However, petitioner's argument is premised on the assumption that the top of the sign face was level with the top of the pole. There was no evidence presented to support this assumption. To the contrary, as found in the proceeding paragraph, the evidence clearly indicated that the top of the sign face was located above the top of the pole. Thus, in that there was no competent evidence to the contrary, the testimony of Mr. Harvey, that the HAGL has always been the same, is accepted, and it is found that the HAGL of the sign at all pertinent times prior to December 14, 1985, was approximately 10 feet. Prior to December 14, 1985, the sign was well maintained and in good condition. Every year in October or November the sign was checked to determine if any repairs were necessary. Every two or three years the sign was painted. On December 14 or 15, 1985, Mr. Harvey was advised that the sign was down. He went to the location and found the sign intact, flat on its back, and all six poles broken. Since the sign was down, Mr. Harvey had the sign face removed and taken to Harbor City Signs for painting. About three weeks after the incident, respondent installed six new poles that were 30' in length and extended about 24' above ground level. Respondent put all new stringers on the poles because it was easier and faster to put up new stringers than to remove the stringers from the old poles and put them on the new poles. Because the sign is responsible for a substantial amount of respondent's business, respondent's major concern was to get the sign back up as soon as possible. On January 21 and 22, 1986, Mr. King went to the location. He observed that the old sign structure was on the ground and that a new sign structure, with all new stringers and poles, had been erected. The new structure had nine stringers and the bottom stringer was approximately ten feet above the ground. The sign face had not been attached to the new structure. Mr. King placed a stop work order on the structure. When respondent was ready to attach the repainted sign face, apparently a short time after Mr. King's inspection, the stop work order was discovered. Thereafter, and apparently in an attempt to comply with what he perceived the DOT rules to be, Mr. Harvey had the new stringers removed from the new poles and had the stringers from the old structure affixed to the new poles. The new structure contained 10 horizontal stringers supporting the-sign face, one of which was new material. The cutout was also supported by a new horizontal stringer and a new perpendicular stringer. (P.Ex.10 and 12) The sign face was attached to this structure in March of 1986. The repainted sign face was essentially the same as it was prior to the accident, except that at the bottom, where it previously had stated "Indian River's Finest Citrus", the sign stated "Next Exit Florida's Best." The HAGL of the reerected sign was approximately the same as the old sign. Although Mr. King testified that the new HAGL was about 12 feet and Mr. Wright testified that the new HAGL was from 12-14 feet, their testimony was simply what they estimated the HAGL to be. Mr. Clayton, who actually affixed the stringers and repainted sign face, testified that the repainted sign face was placed at the same height above ground level as it had been before. Further, the photos taken of the sign in March and July (P.Ex.#5 and #10) do not support a finding that the new HAGL was 12-14 feet. Even if the measurement of 28 1/2 feet drawn on petitioner's exhibit number 10 were accurate, and there was no testimony revealing how this figure was derived, it is not useful in determining the HAGL since it purports to measure the distance from the top of the cutout to the ground. The 14' height of the sign does not include the height of the cutout, and there was no testimony to establish how many feet the cutout added to the height of the sign. Therefore, the testimony of Mr. Clayton is accepted as being the most competent evidence regarding the new HAGL. Thus, the HAGL on the sign after the sign face had been replaced was approximately 10 feet. After the sign face was attached in March, the sign looked about the same as it had prior to December. The sign's location in relationship to the road was the same and the HAGL was approximately the same. There was no increase in visibility. As Mr. King testified, there was no significant difference in the way the sign looked after its repair and the way it looked prior to December 14, 1985. There was no evidence presented concerning the actual cost expended by respondent to repair or rebuild the sign. There also was no evidence presented concerning the depreciated value of the sign prior to December 14, 1985. The only evidence presented as to cost was an estimate of the cost to replace the six poles. It was estimated that a new pole would cost about eighty or ninety dollars and that it would cost about thirty dollars per pole to have the poles placed in the ground.
Recommendation It is, therefore, RECOMMENDED that the Department of Transportation's violation notices seeking revocation of sign permit number 7865-10 be dismissed and that permit number 7865-10 remain in effect as a permit for the nonconforming sign located five miles south of the intersection of I-95 and State Road 50. Respectfully submitted and entered this 2nd day of March, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0967T Rulings on Petitioner's Proposed Findings of Fact: Accepted in paragraph 2. Rejected as stated in paragraphs 5 and 6 as not supported by competent, substantial evidence. Accepted, except evidence showed seven stringers, in paragraph 5. Accepted in paragraph 2. Accepted, except as to date, in paragraph 3. Accepted in paragraphs 8 and 9. Accepted generally in paragraphs 9 and 10. Accepted in paragraph 4. Rejected as not supported by competent, substantial evidence in paragraph 11. Rulings on Respondent's Proposed Findings of Fact and Conclusions of Law: 1-2. Accepted in paragraph 1. Accepted in paragraph 2. Rejected as irrelevant since only the depreciated value of the structural materials in the- sign is relevant. Rejected as irrelevant. Accepted generally in paragraphs 5 and 6. Accepted in paragraph 7. 8-9. Accepted generally in paragraphs 3 and 4, except as to number panels replaced and damage to stringers. Whether panels could have been reused is irrelevant. Rejected as irrelevant (see ruling on paragraph 4). Rejected as not supported by competent, substantial evidence and contrary finding in paragraph 8. Rejected as irrelevant. Accepted except as to date in paragraph 9 and in Background section. Accepted generally in paragraph 10. Rejected as irrelevant since only actual costs of new materials is irrelevant. Rejected as irrelevant. Accepted as stated in paragraph 10. Accepted in paragraph 12. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Victor M. Watson, Esquire 1970 Michigan Avenue Building C Cocoa, Florida Kaye Henderson, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
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)
Findings Of Fact The facts here involved are not in dispute. In 1966 Petitioner leased the property adjacent to Cypress Street in Tampa and erected a structure thereon on the 1-275 3.6 miles west of 1-4, containing signs facing both east and west. By application dated 20 October 1977 (Exhibits 1 and 2) Petitioner applied for permits for these signs. The applications were disapproved because of spacing. Likewise, on 20 October 1977, Petitioner submitted application for a permit for a sign on the 1-4 2.9 miles east of U.S. 41 with a copy of the lease dated 1967. This sign is located in Tampa and the application was also disapproved because of spacing. Both of these locations are zoned commercial and are within the corporate limits of Tampa, Florida. The structure on which the signs shown on Exhibits 1 and 2 were erected was built in 1968 and the sign involved in Exhibit 3 was built in 1967. The signs for which a permit was requested in Exhibits 1 and 2 is located 325 feet north of a permitted structure owned by Tampa Outdoor Advertising, Inc. on the same side of the street and facing in the same direction. The sign for which a permit was requested in Exhibit 3 is 275 feet west of a permitted sign facing the same direction and on the same side of the street which is owned by Foster and Kleiser. No appeal was taken from these disapprovals, but by applications dated June 19, 1979, Petitioner in Exhibits 4, 5 and 6 reapplied for permits for the same signs that had been disapproved in 1977. These applications were also disapproved because of spacing. The I-4 and the I-275 are part of the Interstate Highway system.
The Issue Whether the Respondent is in violation of Sections 479.07(1)(2)(4)(6) and 479.02, Florida Statutes.
Findings Of Fact A notice of alleged violations was sent to Respondent dated October 27, 1975 stating that pursuant to the applicable provisions of Chapter 479, Section 335.13 and Section 339.301, Florida Statutes, and pursuant to the provisions of Section 120.57, Florida Statutes, the Respondent was notified that the sign structures owned by him were in violation of provisions of Chapter 479, Sections 335.13 and 339.301, Florida Statutes. The subject signs were identified as follows: Copy: Aucilla Plaza Church - Gas Location: 2/10 miles north Junction I-10 Highway: State Road 257 Copy: Credit Cards Honored - Chevrolet 60 9/10, Supr. 65.0 Location: 2/10 miles north Junction I-10 Highway: State Road 257 Prior to the hearing a letter was received from an attorney for the Respondent, Ike Anderson, stating that the Respondent was willing to take down all of the signs and that a hearing was not needed. No Motion for Dismissal was made and no continuance or dismissal was ordered. By letter to the Petitioner, Department of Transportation, the Hearing Officer advised of the receipt of such communications, but no response was received from Petitioner. The hearing was called to order and the witness for Petitioner testified that the signs have been removed except the copy of one of the signs is leaning in the approximate same location against the fence. The poles from which the signs were erected are left standing in the same location. The Hearing Officer further finds: That poles standing alone do not constitute a sign; That a facing of a sign leaning against a fence with the face away from a highway does not constitute a sign. It is the duty of the Department of Transportation under Chapter 479, F.S., Chapter 335, F.S., and Chapter 339, F.S., to enforce the outdoor advertising laws of the State of Florida and that the Respondent, John Taylor, has had a hearing, as provided in Chapter 120, F.S., and as provided in Section 479.17, F.S., and Section 335.13, F.S.
Recommendation Enter an order requiring the removal of outdoor advertising signs erected at this location. DONE and ORDERED this 13th day of May, 1976. 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 Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. John Taylor Route 1, Box 142 Monticello, Florida 32344 Ike Anderson, Esquire P. O. Box 56 Monticello, Florida 32344
The Issue The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.
Findings Of Fact The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads: The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981. The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue. On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996. On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996. By letter dated August 30, 1994, the City advised Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996. As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995. Stipulation of Fact #2 reads: State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19. The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding. Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60). On May 22, 1974, State Road 60 was designated a Federal- Aid Primary. On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban. Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981. On or about October 1, 1981, Allan J. Stowell was issued state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality. State Road 60 became a part of the national highway system on November 25, 1995. Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state. Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor. Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business. Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating he was delinquent in certain costs and fees for the permits. When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current. The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable. When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981. After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994. After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions. After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997. Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government will issue a permit upon approval of the application by the Department. Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form. On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the property on which it is located in his application. One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years. Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997. The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign. Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute. When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.” There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application. The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve. Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner permits for the maintenance of the signs in issue, and denying compensation for their removal. DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998. COPIES FURNISHED: Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
