Findings Of Fact On November 4, 1982, the Petitioner, Enterprise Outdoor Advertising, Inc., submitted applications for permits for two signs facing Interstate No. 4 (hereafter I-4) near the intersection of I-4 and 50th Street in Tampa, Florida. The specific location of the proposed signs is described as: Sec. 205 E/B .02 F/W Interstate I-4 50th Street and I-4 Sec. 205 E/B .02 F/E Interstate I-4 50th Streetand I-4 Both applications were disapproved by the Department of Transportation on November 9, 1982. The two signs for which Petitioner sought permits were to be located on a piece of property owned by Mr. E. B. Rood (hereafter referred to as Rood property). The Rood property is located adjacent to I-4, east of 50th Street, which runs north and south. The west facing sign application (see Respondent's Exhibit 11) was denied by the Department of Transportation because of a conflicting existing sign, Permit No. 7716-12, held by Foster and Kleiser, Intervenor. Permit No. 7716-12 was for a westerly facing sign physically located on the Rood property, pursuant to a lease between Intervenor and E. B. Rood. (See Respondent's Exhibit 4.) On November 3, 1982, Mr. E. B. Rood provided written notice to Foster and Kleiser that he was cancelling the lease. By the terms of the lease, the Foster and Kleiser sign then had to be removed within 30 days. On November 9, 1982, when the Petitioner's application was denied, the sign erected pursuant to Permit No. 7716-12 was still physically standing on the Rood property. Sometime prior to December 3, 1982, the sign was removed by Foster and Kleiser and the Department of Transportation was notified that the sign had been dismantled. (See Respondent's Exhibit 9.) Subsequent to dismantling its west facing sign, the Intervenor, Foster and Kleiser, applied for and received a permit for a westerly facing sign on a piece of property adjacent to I-4 just west of 50th Street and the Rood property. This second piece of property, located west of the Rood property, is referred to as the Bize property. At the time Foster and Kleiser applied for the westerly facing sign permit on the Bize property, there were no pending applications for a conflicting sign, and the previous conflicting sign on the Rood property had been dismantled. The application filed by Petitioner for a permit for an easterly facing sign on the Rood property was denied because of a conflicting permit, No. AG558- Permit AG558-12 was for a sign on the Bize property which would face east adjacent to I-4. At the time of Petitioner's application on November 4, 1982, no sign had actually been erected pursuant to Permit No. AG558-12. Permit No. AG558-12 had been issued to Foster and Kleiser in February, 1982, pursuant to an application accompanied by a written lease containing the purported signature of Mr. John T. Bize, the named lessor. (See Respondent's Exhibit 6.) Mr. John T. Bize died on January 1, 1977, and, therefore, was deceased on February 19, 1982, the date of the lease submitted by Foster and Kleiser with its application for Permit No. AG558-12. The only witness signature appearing on the lease was that of Thomas Marc O'Neill. Mr. O'Neill did not observe or witness the lessor sign the lease and felt, at the time he signed, that he was witnessing the signature of Ronald L. Westberry, who signed the lease on behalf of Foster and Kleiser. At the time he signed as a witness, Mr. O'Neill was and continues to be an employee of Foster and Kleiser. Subsequent to its disapproval of Petitioner's application for an easterly facing sign permit, the Department of Transportation was informed by Petitioner of the invalid lease on which Permit No. AG558-12 had been issued. By letter dated November 17, 1982, the Department notified Foster and Kleiser of the invalid lease and gave Foster and Kleiser 30 days within which to correct the problem. On November 22, 1982, the Department received a new lease for the Bize property and sign permit AG558-12. The new lease contained the following addendum: Effective date of lease shall be the of [sic] closing of purchase of said property or erection of signs, which- ever is first. There was no further evidence of the actual effective date of the lease. The Department of Transportation has a policy of requiring, with an application for a sign permit, a lease or other written evidence that the landowner has given permission to use his property for outdoor advertising purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order denying the Petitioner's two applications for outdoor advertising sign permits. DONE and ENTERED this 20 day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983. COPIES FURNISHED: Michael A. Houllis, Esquire 10525 Park Boulevard North Seminole, Florida 33542 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Steven L. Selph, Esquire Post Office Drawer 1441 St. Petersburg, Florida 33731 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether DOT should revoke permits Nos. 721-02 and 722-02 because the nonconforming signs originally permitted have been replaced with a larger structure? Whether DOT is estopped to revoke the permits on these grounds where authorized personnel verbally assured the permittee, and others not in the outdoor advertising business who acted in reliance, that the replacement was not unlawful, and later stated in writing that the permits or one of them was valid?
Findings Of Fact Since 1968 (T.83) "prior to the 1972 agreement with the Feds to control outdoor advertising," (T.23) sign boards in Franklin County facing east and west, on the north side of U.S. Highway 98, a federal-aid primary highway, about 26.85 miles east of the city limits of Apalachicola, have apprised motorists of the proximity of Bill Miller Realty's offices. On October 1, 1987, members of the Saunders family acquired Lanark Plaza, a shopping center near the signpost but invisible from the highway. After learning they would not be allowed to erert a sign within 1,000 feet of Mr. Miller's signs, they proposed a two-faced "directory sign for the shopping center, and" (T.78) Mr. Miller's office, to replace the existing structure. Subject to DOT approval, Mr. Miller agreed to continue paying permit fees if they would erect and maintain the new "directory sign." Before anything was done to effectuate the agreement, Mr. Miller spoke to the late Carlton Millender, "a very blunt man . . . [who] did what was right," (T.99) and who had worked as DOT's outdoor advertising inspector since 1981 for the area around the Carrabelle maintenance yard, including the site at issue. He was authorized to represent DOT on questions concerning the placement of signs and the validity of sign permits, and had turned down more than one sign proposal Saunders family members had made. Mr. Millender told Mr. Miller and, later, Christine Saunders that they could replace the sign that then existed with another, taller sign, but that they could not put up a sign any wider than the eight foot width of the sign faces then standing. "[I]f you are going to increase some height to it, he said, I don't see any objection to it, but I would suggest you write DOT in Chipley and get their blessing or whatever." (T.79-80). Mr. Miller did write DOT's offices in Chipley, to the attention of Milford C. Truette, and told him what [they] wanted to do, and that [he] had talked to the supervisor here, and it was almost getting time for renewing the permit anyhow. . . . [H]e requested that if there [was] any increase in the fee for raising the heigh[t] of the sign, please let [him] know. . . . (T. 80) He received no reply, which he told Mr. Millender. Meanwhile Ms. Saunders "had a man in Panama City draw the design" (T.96) and, toward the end of October or the beginning of November, showed Mr. Millender the completed design, Respondents' exhibit No.3., depicting a sign eight feet wide and about nine feet tall, five feet taller than the sign it was to replace. Mr. Saunders "presented a copy of the plans to Mr. Millender . . . [and they] talked at length about the enlargement of the sign, that it would not be made any wider, but it would be made taller. . . ." (T.101) "When he said that all [they] needed to do was send a letter stating that it was going to be enlarged, requesting a fee change, [she] took that to mean everything was in order," (T.106) and contracted to have the sign built. Eleven hundred dollars or more in materials went into the sign, which ended up being eight feet wide and approximately eleven feet tall. The Saunders worked on it themselves and they hired a laborer at ten dollars an hour. In mid-February of 1988, they took the old sign down and put the new sign up in its place, "within the jurisdiction of the DOT because it's . . . within a certain distance of highway 98." (T. 36) . The sign stands on land owned by Arthur T. Allen, Jr. "on the corner of the . . . second tee" (T. 87) of the Lanark Village Golf Club's golf course. The privately owned club charges fees for use of the course, which lies within an area designated R-1 on detail map B of the Franklin County zoning map, DOT's Exhibit No.3., adopted by reference on June 22, 1981. Nobody signed or sealed the detail map, which was not available for review until the night the County Commission adopted it. Although James T. Floyd, formerly the county planner, testified the detail map was in a sense unreliable and inaccurate, "it is the only document available" (T.72) to show existing zoning. According to the map, not only the shopping center, which "has been commercial since the 1940's, really" (T.72) but the pumping station, as well, lie within the R-1 residential zone. The parties stipulated that the future land use map filed and adopted with Franklin County's comprehensive plan in 1981 designated the area "low density residential." (T.76) On March 2, 1988, DOT's Mr. Truette visited the sign. At some point, Mr. Truette had spoken to a Mr. Kubicki, who was concerned about the legality of the new structure. After the site visit, on March 10, 1988, with knowledge of the new sign's size, and that the new structure was taller than the old, having been informed of the zoning in the area, and fully aware of the controversy surrrounding the sign, Mr. Truette wrote Mr. Floyd, then still in Franklin County's employ: "This is to inform you that state sign permit number 721-01 is a valid permit." Respondent's Exhibit No. 1. At hearing, Mr. Truette said he had meant only that the permit had not yet been revoked. It was he who signed the notice of violation on June 3, 1988.
Recommendation In accordance with the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That DOT dismiss the notice of violation, and take no action against permits Nos. 721-02 and 722-02. DONE and ENTERED this 20th day of February, 1989 in Tallahassee, Leon County, 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 21st day of February, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, and 3 have been adopted, in substance, insofar as material, except that Truette's meeting with Floyd was not the first contact he had with anybody about the sign. Whether or not the record established the month of Mr. Millender's death, the parties agree that he died in January. Respondent's proposed findings of fact Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25 and 27 have been adopted, in substance, insofar as material. With respect to respondents' proposed finding of fact No. 1, it was not clear just which members of the Saunders family owned what. With respect to respondents' proposed finding of fact No. 12, while no money is to be paid Mr. Miller, he is to receive consideration in the form of upkeep. With respect to respondents' proposed finding of fact No. 21, they spent approximately $1100 plus whatever they paid the laborer. Respondents' proposed finding of fact No. 26 has been rejected as unsupported by the weight of the evidence. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 John F. Gilroy, Esquire Bruce Culpepper, Esquire Haben and Culpepper, P.A. Post Office Box 10096 Tallahassee, Florida 32302 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact In August of 1995 Champion International Corporation gave Petitioner permission to place a sign advertising The Outpost on property that Champion owned in Walton County. The sign was to be located at the corner of the south side of State Road 20 and Black Creek Boulevard. State Road 20 is a federal-aid primary road. Black Creek Boulevard is a county maintained road. Petitioner subsequently erected a 4' X 8' outdoor advertising sign on Champion's property. The sign was located on the south side of State Road 20, two miles east of U. S. 331 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. The sign was double-sided with east and west faces. On September 1, 1995, Petitioner filed an application with Respondent requesting a permit for the 4' X 8' sign already erected on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. On September 22, 1995 Respondent issued a Notice of Denied Application informing Petitioner that it could not have a permit for a sign on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. Respondent denied this permit for two reasons: (a) the location was zoned "agricultural" which was an un-permittable land use designation; and (b) the proposed sign was located on the state's right-of-way. After receiving the Notice of Denied Application, Petitioner removed the 4' X 8' sign. On or about January 29, 1996 Petitioner filed a sign permit application with the Walton County Building Department. The application was for an off- premises sign to be located fifty (50) feet south of State Road 20 along Black Creek Boulevard. The application states that: If the proposed sign is located along a federal aid primary road, a permit from the Florida Department of Transportation (904/638-0250) must be obtained before a Walton County building permit is issued. The applicant must obtain a letter from Walton County to submit to the Department of Transportation to submit with the application. Petitioner did not apply for a permit from Respondent for this proposed sign. The Walton County Building Department issued Petitioner a permit to erect the proposed sign on January 29, 1996. Petitioner subsequently erected a second sign on the south side of State Road 20, one foot off of the right-of-way, and about fifty (50) feet from the intersection of State Road 20 and Black Creek Boulevard. It was 8' X 8', two-sided, mounted in concrete, with red, black and white copy advertising The Outpost on both sides. The sign was placed so that it could be read by east and west bound traffic along State Road 20. Only the east face of the sign could be read from Black Creek Boulevard. The subject sign was located within 660 feet of the right-of-way of State Road 20. It did not qualify as an on-premise sign because the Outpost RV Park was located two miles away. Respondent never received a permit application from Petitioner for the 8' X 8' sign. There was no material difference in the location of Petitioner's previously removed 4' X 8' sign and the new 8' X 8' sign. On May 13, 1996 Respondent issued Notice of Violation No. 10BME1996110 to Petitioner for the west facing of the 8' X 8' sign. Respondent also issued Notice of Violation No. 10BME1996111 to Petitioner for the east facing of the same sign. Each Notice of Violation contained a location description for a sign which was the same as the location description contained in Petitioner's previously denied sign permit application. The basis for both violations was that neither sign had the permit required by Section 479.07(1), Florida Statutes. The notices directed Petitioner to remove the sign structure within thirty (30) days. Respondent subsequently removed the 8' X 8' sign because Petitioner failed to do so within the prescribed time. Respondent's right-of-way on the north and south side of State Road 20 is the area that Respondent maintains which is approximately fifty (50) feet. Respondent's right-of-way map showing the maintained area is available to the public at Respondent's Right-Of-Way Office. In the past, Petitioner erected other signs along U. S. Highway 331 without obtaining a permit. Respondent issued a permit for at least one of these signs after Petitioner filed the appropriate application. Respondent required Petitioner to remove any sign that was not eligible for a permit. Respondent's inspector issued more than ten (10) notices of violation to owners of other outdoor advertising signs in the same general vicinity as Petitioner's 8' X 8' sign on May 13, 1996. These signs have been removed. There is a Reddick Fish Camp sign located on the south side of State Road 20 and west of the intersection of State Road 20 and County Road 3280. That sign is located six miles from the sign at issue here. Another sign has been nailed to a tree three-quarters of a mile west of the subject sign. There is insufficient evidence to determine whether these signs are illegal because they do not have a permit. There is no persuasive evidence that Respondent issues violations to Petitioner when it erects an off-premises sign without a permit but allows illegal signs of other property owners to exist without issuing similar notices of violation. Even if Petitioner had filed a permit application for the sign structure at issue here, it would have been ineligible for issuance of a permit because the location's land use designation was agricultural. If the property had been zoned commercial or industrial, Petitioner would have been required to have a permit because the sign did not qualify for any exceptions to Chapter 479, Florida Statutes.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order finding that Petitioner erected a sign with two faces in violation of Section 479.07(1), Florida Statutes. DONE and ENTERED this 17th day of December, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Paul T. Davis 4576 Highway 3280 Freeport, Florida 32439 Andrea V. Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transporation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
The Issue The issue in these causes is whether denial of Petitioners' outdoor advertising sign site permit applications by Respondent were correctly determined under Subsection 479.111(2), Florida Statutes (2003), on the basis that the sign sites were unzoned commercial/industrial areas; and on the basis that within attending factual circumstances, the sign site did not qualify as unzoned commercial/industrial areas as defined in Subsection 479.01(23), Florida Statutes (2003).
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Sections 120.569 and 120.57, Florida Statutes (2003); and the entire record of this proceeding, the following relevant and material findings of fact are determined: Petitioner, Tropical Landholdings, a Florida Corporation, was created in 1998 and purchased approximately 700 to 800 acres of land comprised of residential multi-family and commercial properties along Interstate 75 (I-75) in Punta Gorda, Florida. On September 8, 2003, Petitioner, Crown Advertising, Inc., of Belleview, Florida, submitted three outdoor advertising sign site permit applications to the Department for review. On September 23, 2003, the Department denied the three outdoor advertising sign site permit applications for the following reasons: (1) the sign sites were not permitted under the local land use designation of site (§ 479.111(2), Fla. Stat. (2003)); and (2) the sign sites did not qualify as unzoned commercial/industrial area. § 479.01, Fla. Stat. (2003). The sign site permit application forms used by Petitioners in these causes were composed and authorized by the Department. The form required the applicant to obtain and provide information regarding the proposed sign site, what is proposed to be constructed on the site, and where the proposed construction is to occur. The sign site permit applications also required the applicant to secure information from the appropriate local zoning official of the future land use designation and the current zoning of the proposed sites enacted by the local government's Comprehensive Plan and land use development regulations. This form required information from the local government as to whether the applicant is or is not in compliance with all adopted local ordinances. Permission to erect an outdoor sign structure on the identified sign site is subject to approval by the City. Petitioners complied with the requested information. The local government, the City of North Port, approved the three sign site permit applications in question and granted Petitioners permission to erect three outdoor billboard signs. This local grant of approval was then subjected to concurring approval by the Department. After receiving the sign site permits that were approved by the City, the Department engaged the services of a consultant to conduct on-site review and identification of: (1) the local government's designation for each proposed sign site; (2) the permitted uses of each proposed sign site (local drainage facilities, pipeline corridors, underground communication cables, electric transmission lines, and outdoor advertising signs); and (3) a review of adjacent and surrounding parcels. The consultant reported to the Department the factual circumstances attendant the three locally approved sign sites. It should be noted that the consultant did not render an opinion regarding the Department's approval or denial of the sign site permit applications. The sign sites in question were zoned under the local "land use designation" of the City of North Port's Ordinance 02-46, Section 53.146 (Ordinance 02-46), as a "utility industrial corridor." The zoned land was composed of strips of land measuring 25 to 70 feet in width on the west side and 160 to 170 feet in width on the east side. The "permitted governmental uses" of a parcel zoned as a "utility industrial corridor," included such uses as underground communication cables, electric transmission lines, and outdoor advertising signs. Ordinance 02-46, under the title "Prohibited Uses and Structures," specifically prohibits "all commercial and industrial uses." Based upon a review of all information provided by Petitioners, the local government, and its consultant, the Department first determined the three sign sites on which the subject signs were to be erected and located, prohibited commercial or industrial uses. The Department then determined, based upon an analysis of the materials provided by its consultant and the City of North Port, the three sign sites in question had not been zoned for commercial or industrial uses as a part of the local government's comprehensive zoning plan. Based upon (1) the prohibition of commercial or industrial uses and (2) no commercial or industrial zoning of the sign sites, the Department concluded these three sign sites were zoned "primarily to permit outdoor advertising," a prohibited function. The denials were required. Under the local land use designation of Ordinance 02-46, the City of North Port's permitted uses included local drainage facilities and a pipeline corridor. Under governmental uses designation of Ordinance 02-46, the City of North Port's permitted uses included underground communication cables, electric transmission lines, and outdoor advertising. However, Ordinance 02-46 specifically prohibits all commercial and industrial uses under the governmental uses designation. When questioned by Petitioners, Ms. Holschuh testified "that the Department's intent was to allow [sign] permits whenever possible and never prohibit the installation of billboards." From this specific statement of testimony, Petitioners argued that "implementing the intent the Department must look beyond the labels of the zoning and look at the actual primary uses allowed under those designations." (Emphasis added.) Ms. Holschuh disagreed with Petitioners' characterization of the Department's procedures and convincingly maintained that the Department based its denials on "sign site zoning" and factors considered for determining an "unzoned commercial/industrial area" as defined by statute. Continuing with its argument, Petitioners conclude "[T]he department . . . appears to be in conflict with Judge Barbara Staros' decision of February 16, 2004, in a rule challenge proceeding, where she analyzed the Sign Permit procedure under Section 479.07, Florida Statutes." In her Final Order, Administrative Law Judge Barbara Staros made a Finding of Fact in paragraph 30, stating: Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan. Page 13. The procedures followed by the Department in this proceeding complied with Judge Staros Finding of Fact in paragraph 31, where she wrote: The Department uses the application and the information contained therein to determine whether a proposed sign location falls within the definition of a "commercial or industrial zone." If it does, [fall within] then the Department determines whether those designations were adopted as part of the local government's comprehensive planning efforts or were "primarily" adopted to permit outdoor advertising signs on that location. Page 30. Based upon it's receipt, review, and analysis of the specific facts provided by all parties of interest, the Department determined the sites where the signs were to be erected prohibited commercial or industrial use. The Department factually determined that no local zoning identified the sites as commercial or industrial. The Department concluded correctly and in accord with Florida Administrative Code Rule 14-10.0052 that these three sign sites were zoned by the City of North Port, the local governmental entity, "primarily to permit outdoor advertising" contrary to sign site permit procedures under Section 479.07, Florida Statutes (2003). Based upon the evidence of record and considering the size of the sign site, the local government's zoning of the site, designated uses of the site, and prohibited uses on the site, denial of the sign applications was correctly determined pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052. Based on the testimonies of Ms. Holschuh and James Duff, who testified regarding his ownership, property taxes paid, and the investors' inability to use the property in question to their economic advantage, Petitioners failed to carry the burden of producing a preponderance of credible evidence to establish that the Department incorrectly and/or wrongfully denied Petitioners' applications for three sign site permits pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052.
Findings Of Fact Chapter 479 and the rules promulgated pursuant to that chapter establish the authority for Petitioner to regulate outdoor advertising in Florida. This regulatory function includes signs which are located on Interstate 75 in Florida. Interstate 75 is part of the interstate highway system in the United States as defined in Chapter 479, Florida Statutes. Respondent is in the outdoor advertising business and is subject to the requirements of Chapter 479, Florida Statutes. All signs which are in dispute in these cases are located adjacent to Interstate 75 in Alachua County, Florida and are or were owned by Respondent at all relevant times. The signs within the relevant time frame associated with this dispute could be seen from Interstate 75. Bartley Burch is a property and outdoor advertising inspector who routinely inspects the signs in question on a weekly basis. During the roughly three years which he had been performing inspections in the area in question he had inspected the seven signs a minimum of 200 times. His inspection schedule for the signs was on a weekly basis. His inspections led to the citations of those signs belonging to the Respondent. The basis of the citations are described in the Statement of the Issues. The citations date from July 18, 1990, based upon inspections performed July 12, 1990. The citations were received by Respondent on July 23, 1990. As described, Respondent having served the citations, this prompted the formal hearing. The sign in 5871T is located on Interstate 75 North, 22.4 miles north of the Marion County line. It advertises the Red Lobster restaurant. It is depicted in the photographs consisting of Petitioner's exhibits 2 and Respondent's exhibits 2A through 2C. Concerning the complaint, Burch discovered what he considered to be a lack of permit through his inventory or inspection activities that are routinely performed mentioned before. In conducting these inspections Burch used a computer printout issued by Thomas N. Brown, district outdoor advertising administrator in the Petitioner's district where the subject signs were found. That printout indicates the sign location and whether the signs are permitted or not. The printout also includes signs which Chapter 479, Florida Statutes, describes as nonconforming signs. The sign in 5871T did not show up on the computer printout as having been permitted. Burch does not recall that a permit tag was attached to the sign in 5871T. In addition to checking his printout Burch contacted Petitioner's Tallahassee office to see if that office had any record of a permit being issued to the sign in 5871T. He was told that the Tallahassee records did not reflect a permit issuance. From the tenor of his remarks, Burch also examined records in the district office where he works to ascertain whether a permit had been issued for the sign in 5871T. Those records dated back to 1987. They did not reveal the issuance of a permit. In his contacts with the Tallahassee office of Petitioner, he did not determine how far back in time those records went. Neither did he go to Tallahassee to examine the records which were held by the Petitioner on this subject. The methods of looking at his inventory list, available information at the district level where he works and contacts with Tallahassee, in Burch's attempts to ascertain whether permits had been issued were the same in 5873T and 5876T as they were in 5871T concerning the basic methods which Burch employed to find out if permits had been issued for the latter two signs. The sign in 5873T is at Interstate 75 North at mile 5.93. It is a Red Lobster advertisement. It is depicted in Petitioner's exhibit number 2 and Respondent's exhibits numbers 2A through 2C, photographs of the sign. The photographs taken of this sign and all other signs which are Petitioner's exhibits were made by Burch on July 12, 1990. The photographs which are Respondent's exhibits were made by Andrew Wayne Lee on August 23, 1990. In 5873T a permit tag is not attached to the sign or any of its supporting posts. Burch noted at hearing that if an application was made at that point in time to have a new permit issued it would not be approved because of a spacing problem. In 5876T, the sign in question is a Red Lobster advertisement. The sign is at Interstate 75 South at mile 3.49. Petitioner's exhibit number 2 and Respondent's exhibits 2A through 2C are photographs of the sign in 5876T. The Respondent's photographs depict attached permit tags. The details of those permit tags may not be discerned by examining the photographs. Burch had no recollection of those tags at the time that he made his inspection. His attempts to determine if a permit had been issued for this sign are as previously described. These attempts did not lead to the confirmation that a permit had been issued. In 5872T, the sign is at Interstate 75 North at mile 23.46. Petitioner's exhibit number 2 and Respondent's exhibits 2A through 2C are photographs of the sign. They depict a blank sign face which has been painted. At no time during the inspections which Burch made did he observe any advertising on the sign face. The sign had been painted before the formal complaint was made concerning the allegation of being void of advertising for 12 months or longer. The sign had a permit tag attached dating from 1974. It is classified as a nonconforming sign. In addition to the date of the permit tag being 1974, the spacing which Burch measured pointed out that the sign was nonconforming. According to Burch, the sign at 5872T became void of advertising approximately two years before the hearing date. What he meant was whatever was on the sign was not legible to Burch. What the witness said was that approximately two years ago is when he noticed that he was unable to read the message on the signboard even though there was something written there. That is the reason why he began to believe that it was void of advertising. Legibility to Burch means that the message is dilapidated, faded or the paint pealing off, things of that nature. He is unaware of any policy by the Petitioner by way of a memorandum which sets out standards of what it means to be void of advertising as a definitional matter. From the record there does not appear to be any standards by Petitioner which further describe the meaning of void of advertising beyond what is stated in Rule 14-10.007(2)(e), Florida Administrative Code. In 5874T the sign in question is at Interstate 75 North at mile 21.79. It is depicted in Petitioner's Exhibit 2A and B and Respondent's Exhibits 2A-C, photographs of the sign. Unlike the situation in 5872T, this sign does have information which is portrayed; however, the message that is being presented is unclear. In his inspections Burch has never viewed advertisement that he considered legible. His statement of legibility equates to the notion of clarity evidenced by the photographs referred to. The sign also had a spacing problem and was nonconforming for that reason. Again, this sign had been void of advertising in terms of legibility for approximately two years before the hearing date, according to Burch's observations. In 5875T the sign in question is located at Interstate 75 North at mile 22.39. The sign is depicted in Petitioner's Exhibits 2A and B and Respondent's Exhibits 2A-C. This sign is in disrepair in that some of the panels are missing. The sign while it contains writing is unclear in its message or lacking in legibility when observing the photographs. Respondent's Exhibits No. 2A and B show permit tags affixed. Those tags cannot be read as to their contents concerning dates upon which the permit tags were issued. Burch confirmed that the sign was void of advertising for over 12 months by making weekly inspections. The sign in question is nonconforming because of spacing problems. In 5877T the sign in question is at Interstate 75 South at mile 3.44. This sign is depicted in Petitioner's Exhibit No. 2 and Respondent's Exhibit No. 2A-2C. The photographs show that the sign has been painted and has no message portrayed. Respondent's Exhibit No. 2B shows certain tags affixed. The uppermost tags on the pole bear dates of 1973 and 1974. This sign had been painted before the complaint was issued concerning the alleged violation. The sign is a nonconforming sign based upon spacing problems. No prior action had been taken concerning the signs that have been discussed, as Burch understands it, based upon the Petitioner's policy of not filing complaints against a Respondent unless the process may be concluded by removing the signs that are offending. Brown supervises Burch. He rides Interstate 75 and conducts periodic inspection or inventories in the same areas where his inspectors perform their duties. This had made Brown familiar with the signs in question. As Brown describes it, if there is no permit tag, and the inventory related to signs based upon computer records at the district level don't include questioned signs, resort is made to the records in Tallahassee to ascertain whether a permit exists for a questioned sign. If the records checks locally and in Tallahassee do not reveal that a permit was issued then the district officials conclude that the sign is illegal. Alternatively, at times the sign owner may have records which will verify the existence of a permit and that would be available to the Petitioner. Copies of applications for permits are available to Brown and in the absence of an approved application this is further evidence that the permit was not issued. It may also be evidence that the approved application has been lost. At the end of each year a list of signs held by companies such as that of the Respondent is prepared and sent to the sign owner for billing purposes, the collection of fees. This gives an indication of permits that are held by the sign owner and the sign owner assists in verifying the ownership by remitting annual fees to pay for the sign operation and through such remittance clarifying the status of permitted signs which are held by that vendor. As Brown describes, Petitioner also becomes aware of the status of signs through transfers of permit tags from one owner to another related to a given sign. Brown employed general methods for researching the question of whether a permit had been issued for the questioned signs as was described before. In particular related to 5871T, 5873T and 5876T he checked for original applications and could find none. He called Tallahassee and tried to get research information from Tallahassee concerning permits being issued and was unable to find any information. He went through old filing cabinets at the district level and found nothing. This search in the filing cabinets was a manual search in addition to the computer search which he had made at the district level. None of these attempts led to verification of a permit being issued for the signs in question. There was information which suggested that the signs may have been in violation as far back as 1983. He did find one permit that had been issued related to 5871T, that permit belonged to the National Company for a Manatee County sign. It was not for a permit for the Alachua County sign owned by Respondent. The 1971 permit tag belonging to National can be seen in the photographs by Respondent, his Exhibit No. 2. That same tag number is referenced in an affidavit requesting a new tag permit for a loss permit that relates to that location and is found as Petitioner's exhibit number 3 admitted into evidence. It was submitted on August 6, 1990 and will be further discussed in describing the testimony of Andrew Wayne Lee at hearing. The computer records at the district level at times include unpermitted signs as well as those that have permits. This is not an indication that a permit had been issued for the sign upon some former date. Mr. Brown believes that the idea of a sign void of advertising is a sign which has no copy on the sign, an example is a sign that is painted blank for a period of one year. In 5874T Brown recalls this sign as being void of advertising for five and a half years, this is taken to mean illegible. When shown the photographs depicting the sign in 5874T he described that sign as looking the same way as depicted in the photographs for a period of five and a half years. He said that in driving 55 or 60 miles an hour he could not read what was on that sign. He also remarked that in 5875T he couldn't read some of the letters in that sign well enough to tell what was written. Brown described the speed limit in the area of the signs in question as being 65 miles per hour. His representation is accepted. Brown describes the fact that when the owner of the signs do not pay the annual fees the signs are found in violation and a "take down" order is issued. In making his record search to discover whether the signs which were charged with having no permit had ever been recorded as permitted, Brown indicated that the records of the Petitioner went back as far as 1971 but that they were not complete. This incompleteness as to some of the records refers to the absence of a paper record or a computer entry record. Brown acknowledges certain contacts with Respondent or members of his family. He does not recall that Respondent or members of the family were requested to submit Respondent's proof of permitting for the three signs that are the subject of a claim that no permits were issued for them. Notwithstanding this lack of inquiry, the hearing presented the opportunity for the Respondent to submit any information it had regarding the matter of permits being issued for those three signs in defending against the allegations. In the annual billing lists which are submitted to the vendors such as Respondent, they include properly permitted signs or signs in good standing as well as signs that are considered in violation. The idea of in violation would include the problem of not having permits issued for the sign. This is borne out by Respondent's exhibit number 4 which is a billing list which Respondent had which refers to the three signs in question for which permits are said to be lacking. For that reason permit numbers are not found on that page of the exhibit which describes the signs. Andrew Wayne Lee, son of Respondent described how he is in the cattle business, the outdoor advertising business and that he buys and sells properties. He says his family has been in the outdoor advertising business since about 1965. His involvement in the outdoor advertising business has been more extensive in the last three or four years. He became involved because his father was diagnosed as having Alzheimer's disease in or around April or May of 1985. Before that date the son had very little participation in the outdoor advertising business. Respondent's son made an attempt to find records which would verify the status of the signs in question, especially those which Petitioner claims to not have permits. He describes that a number of records concerning the outdoor advertising business had been stored in a family residence around 1972 and in 1981 an accidental fire occurred and those records were burned up. He says that other records were put in different places by his father and that he is unable to converse with his father about where those additional records may be found given his father's illness. Lee points out in 5871T, the photograph Respondent's 2B showing the 1971 tag permit. As stated that tag permit is the incorrect tag permit for the sign. In 5873T, Respondent's 2A and 2C show markings on the pole where permit tags were probably affixed, according to Lee. Unfortunately it is unclear what happened to those permit tags and whether they were the appropriate permit tags for the sign at the time they were affixed. It may well be that they were the inappropriate permit tags as was the case of the 1971 permit tag which was affixed to the sign in 5871T at the time Lee took photographs on August 23, 1990. In 5876T Lee refers to Respondent's exhibit 2C which shows two permit tags. He did not describe the idea that these two permit tags were the appropriate permit tags for the sign in question. He made no mention of those permit tags when he attempted to obtain a new permit tag for that sign by submission of an affidavit on August 6, 1990 as depicted in Respondent's exhibit number 3 in 5876T. It is unexplained why Respondent in making an affidavit in furtherance of its attempt to gain a new permit tag for the sign in 5876T would not refer to the older permit tags affixed to the sign and their numbers in an attempt to verify that a permit had been issued in the past. On the other hand, resort to that information found on the preexisting permit tags located on the sign post would be unavailing if they were not associated with that sign when they were issued or if they could not be cross-referenced with the older records held by the Petitioner that established the permits on the signpost as being related to the sign in question. Neither party made connection in the record between the permit tags on the sign post and the idea of a permit having been issued specifically for that sign at that location. In his attempt to bring the signs in compliance by making affidavits seeking the reissuance of a tag permit for the three signs in question where Petitioner claims permits did not exist, Lee described his methods. Having found no record held by Respondent which would describe the issuance of permits for those three signs, in preparing the affidavit in 5871T, he used a 1971 permit tag number that was found on the sign because it was the only number he had available. He was hopeful that the Department could use that as some sort of cross reference to verify the existence of a permit. He believed the three signs were permitted, but felt that he had no means of tracking down the proper numbers. In addition to searching the records held by Respondent he went up and down the road trying to ascertain the appropriate permit numbers. Lee also went to Tallahassee and examined Petitioner's files. He noted that the amount of records concerning the activities of his father in the outdoor advertising business, which is much more extensive than the seven signs in question, were not the same as on other occasions when he and his father had visited the Petitioner's office in Tallahassee. This refers to records held by the Petitioner. The comparison of what he saw on the occasion of his attempt related to the present cases and what he found on trips made by Lee and his father differed in that on prior occasions he found considerably more material than he found on the latter trip. In describing the permit affidavit for obtaining a new permit tag in 5871T, Lee describes this as having been involved in an agreement with Peterson Outdoor Advertising. This is in addition to his remarks about the use of the 1971 tag which have been stated before. The significance of this swap agreement, if one existed with Peterson Outdoor Advertising, as it relates to the question of an appropriate sign permit having been issued in 5871T was not explained in the hearing. In 5873T, as with 5871T and 5876T Lee prepared an August 6, 1990 affidavit requesting a new tag permit. This is found in Respondent's exhibit number 3 in case number 5873T. The several affidavits submitted in an attempt to gain new permit tags for the three signs Petitioner claims do not have permits were rejected. All affidavits were returned. In summary, Lee believes that the three signs in question had permits issued but has no proof from any source which would confirm that belief. In the signs which are the subject of the claims of being in jeopardy for reasons that they are void of advertising, the signs in 5874T and 5875T have been removed by Petitioner. The signs in 5872T and 5877T have been painted but have not been leased given the pendency of these proceedings. Robert Still is construction manager and supervisor for Respondent. He has worked for that concern for over 18 years. Still describes the painting of the signs at 5872T and 5877T in June of 1990. The sign in 5872T had copy related to McDonald's and the sign related to 5877T had copy related to Sonny's Bar-B-Q before they were painted over in the blank color described in the photographs. Still offered no comments concerning the legibility of the McDonald's copy in 5872T and the Sonny's Bar-B- Q copy in 5877T before that copy was painted over in June, 1990. Still's relationship with the Respondent's company did not extend to being responsible as records custodian for information associated with permit issuance and permit renewal fees. He expresses, as did Lee, the belief that the three signs in question were permitted at one time or another but has no records to verify this belief. He does recall placing permit tags on the signs in question. In 5876T he makes mention of the fact of the older permit tags which are shown in the photographs by Respondent. He states that the sign in 5871T had a permit at one time which was a 1974 permit. This was as distinguished from the 1971 permit which was found on that sign on August 23, 1990 depicted in Respondent's photographic exhibit. Still has worked with the sign in 5871T for about 12 years; the sign in 5876T for 12-14 years and the sign in 5873T since 1973. In spite of the remarks by Lee and Still concerning their belief that permits had been issued for the signs in 5871T, 5873T, and 5876T, on balance based upon the record and the facts found herein, permits were not issued for those signs.
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
Findings Of Fact In mid-1983 National had a properly permitted outdoor advertising structure bearing tag numbers AD-016-10 (south-facing sign) and AD-018-10 (north-facing sign) on the east side of U.S. 27 on leased property in Highlands County. In the latter part of 1983 this property was purchased by Young. On September 15, 1983, Young notified National that he was the owner of the property on which this sign was located and requested National to remove the sign. On September 16, 1983, Young applied for a permit to erect an outdoor advertising sign at this location. Young's application was disapproved by DOT on November 7, 1983, because DOT's records showed this to be a site occupied by a permitted sign (Exhibit 3). On or about October 26, 1983, after having received no response from National to his request for National to remove the sign, Young cut down the sign by sawing its supporting posts. On November 28, 1983, Young requested a hearing on the denial by DOT of his application for a permit for a sign at this site. On November 3, 1983, National obtained a lease (Exhibit 2) on property abutting Young's property and, on or about November 4, 1983, erected a sign on this property using the same faces from the fallen sign and attached the tags issued for its original sign. National's original lease dated 10/13/80 (Exhibit 1) with John Larino provided that either party could terminate the agreement on thirty days' notice. When Young purchased the property from Larino, he complied with the lease provisions regarding termination of the lease, including rebating the rent for the unused portion of the lease. Young erected a sign on this property on November 6, 1983, before his application had been denied and two days after National had re-erected its sign. Young obtained a county building permit on September 16, 1983, for the sign he subsequently erected. National has not applied for permit for the structure erected on the land leased from Boyd but attached permit tags AD-016-10 and AD-018-10 to the sign. The juxtaposition of the signs is as follows: proceeding north on U.S. 27, the first sign is owned by Young, next is the site of the former National sign, and then National's new sign. All of these locations are on the east side of U.S. 27, are less than 1,000 feet from a permitted sign to the south, are more than 500 feet from the sign, and all are within 180 feet of each other. When an applicant applies for a permit for a new sign, the site is inspected by a member of the Outdoor Advertising staff in the DOT district where the sign is to be located in company with the application, or the site is staked out by the applicant and viewed by a staff member. This inspection is to ascertain that the proposed sign will be located the required minimum distance from an existing sign and the proper distance from the roadway from which the sign will primarily be observed. DOT'S policy is that any relocation of the sign from the authorized location constitutes a new sign and requires the submission of a new application and approval therefor. The approved application for National's original sign was on U.S. 27 2.9 miles north of "Junction 17-Sebring." This location is on the property now owned by Young.
The Issue Whether an application for an outdoor advertising permit for a sign in Santa Rosa County should be granted or denied.
Findings Of Fact The Department of Transportation is the state agency responsible for the regulation of outdoor advertising signs that are located on all federal-aid primary highways. U.S. Highway 90 (U.S. 90) is a federal-aid primary highway. A permit is required prior to erecting an outdoor advertising sign on all federal-aid primary highways. Southeast- SD, LLC (Southeast) filed an application for an outdoor advertising permit, application # 57549/57550 (the application) on June 29, 2009. Southeast's proposed sign structure meets the size and height requirements of section 479.07. The parcel was commercially zoned in accordance with the provisions of section 479.11, Florida Statutes. Southeast's application site is located on U.S. 90 at milepost 3.118, approximately 550 feet east of the centerline of Woodbine Road. The Department denied Southeast's application and issued a Notice of Denied Outdoor Application (initial denial) on July 29, 2009. The reason stated in the initial denial was: Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP). [s. 479.07(9)(a),1.,& 2. F.S.] In conflict with permitted sign(s), tag#(s): CC479. Held by: Bill Salter Advertising, Inc. Bill Salter Advertising, Inc. (Salter's) sign with tag CC479 was located on U.S. 90 less than 500 feet from the application site. Permit CC479 was the subject of a Department revocation proceeding.2/ On March 8, 2010, the Department issued a Clerk's Order of Dismissal on the challenge to the revocation of CC479. Thus, the revocation of the conflicting sign, CC479, was final on March 8, 2010. On August 16, 2010, the Department issued an Amended Notice of Denied Application (Amended Notice). In the Amended Notice, the Department gave a different reason for the denial. The reason given in the Amended Denial concerned a different Salter tag: Sign does not meet spacing requirements (1500' for interstates, 1000' for EAP). [s. 470.07(9)(a),1., & 2. FS] In conflict with permitted sign(s): CF793. Held by: Bill Salter Advertising, Inc." CF793 was originally permitted in 1978. At that time, an application for a sign permit was reviewed and notated by the Department, and became the actual permit. The application for CF793 contains information that is type-written on the application form, presumably by the applicant, Salter. In the portion of the application form stating "DOT DESCRIPTION OF SIGN LOCATION (DOT USE ONLY)" the following is hand-written: "Sect. 59 W- 39.95 Miles W-SR 85." Most of the application/permit was filled out by the applicant, and part of it was filled out by the Department. In 1996, the Florida Legislature amended section 479.02, directing the Department to inventory and determine the location of all signs on the state, interstate, and federal-aid primary highway systems. The Department conducted the inventory and, upon completion, sent the database information to each sign owner, giving each owner an opportunity to challenge the accuracy of the results. Salter did not file such a challenge regarding CF793. As of July 30, 2009 (the date of the initial denial), tag CF793 was shown at milepost 13.205 on U.S. 90, in a location approximately 13 miles away from the application site in the Department's database created pursuant to section 479.02(8). Tag CF793 was physically located 13 miles away from its originally permitted location. The Department acknowledges that tag CF793 was not valid in its location 13 miles away from its current location, where it was located from at least 1998 to 2010. The database reflected milepost 13.205 as the location for CF793 from 1998 until 2010. In 2004, the Department sent Salter a Notice of Non- Compliance demanding that Salter post tag CF793 at milepost 13.205. In October 2009, the Department received a letter from Salter regarding moving CF793 to the location specified in the 1978 permit. At this point, the Department investigated the original application and discovered a "huge discrepancy" between the database location and the permit location in the Department's files. The Department has no documentation regarding how tag CF793 came to be located at milepost 13.205 since the 1998 inventory. The Department decided that its database was incorrect and that it needed to be corrected. On February 1, 2010, the Department changed its database to reflect the location for CF793 as milepost 2.993 on U.S. 90. Salter posted the tag for CF793 at its current location sometime after March 22, 2010 and prior to May 3, 2010. Once Salter placed the tag for CF793, the database was changed again to reflect the physical tag location at milepost 2.950 on U.S. 90, the "current location." The Department hired Cardno TBE, an engineering firm, to conduct field work. An inspector performed field measurements on May 3, 2010, using the wheel and laser methods for field measurement. The inspector identified the stake that was in the ground on Southeast's proposed sign site. He measured along the edge of the pavement on U.S. 90 from the location marked by Southeast to the new location of Salter's CF793 tag. The inspector determined that the distance between the proposed site and the nearest permitted sign, CF793, is 890 feet. Based upon these findings, the Department then determined that Southeast's proposed sign did not meet the 1000- foot spacing requirement. By letter dated May 27, 2010, the Department notified Salter that the location of CF793 was "nonconforming" and that pursuant to Florida Administrative Code Rule 14-10.007, a completed sign must be erected within 270 days or the permit would be revoked. No sign has been built, and the permit has not been revoked. Moreover, it appears that a sign will never be built, as the Department is in possession of correspondence from Santa Rosa County to Salter indicating that a sign cannot be constructed at the current location of tag CF793 due to conflict with several local ordinances. Also on May 27, 2010, the Department sent a letter to Southeast stating that CF793 "now presents a spacing conflict" with Southeast's application location. The letter further states that the Department had advised Salter that a completed sign must be erected within 270 days and that if no sign is erected within that time frame, the permit would be revoked. On August 16, 2010, three months later, the Department amended its denial as set forth above in paragraph 8. Just prior to the hearing, the Department again sent the inspector to conduct another field measurement. This time, the inspector relied upon information regarding the location of the sign from the original application/permit that was provided by the applicant (Salter) in 1978. That is, the inspector measured from a location described by the applicant in the original permit application, then measured the distance from the location to Southeast's proposed site, and determined the distance to be 884 feet. In making these measurements, the inspector assumed that the nearest intersection in 1978 was in the same location as today, that the original measurer started the measurement from the centerline of that intersection, and that the distance from the nearest intersection indicated by Salter on the original application/permit was measured with the same accuracy as a hand-wheel or laser.3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Transportation enter a final order approving Southeast's sign permit application. DONE AND ENTERED this 21st day of February, 2011, in Tallahassee, Leon County, Florida. S Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 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, 2011.
Findings Of Fact The Petitioner, Metro Advertising Company, is a licensed outdoor advertising company doing buiness in Orlando, Florida, through a division known as Eagle Outdoor. In 1964 the Petitioner acquired two outdoor advertising signs situated side-by-side on U.S. 17-92, 1.49 miles south of SR 436, in Seminole County, Florida. Thereafter, these signs were permitted by the Department and issued permit numbers 3988-2 and 3990-2. The Petitioner has renewed these permits each year by paying the appropriate annual renewal fee to the Department, including the renewal fees for the year 1985. Some time in 1983 the Departmet's outdoor advertising inspector noticed that the two signs which are the subject of this proceeding did not have affixed to them the permit tags as required. This inspector informed a representative of the Petitioner who was a divisional manager of the company, that these signs did not display permit tags, and advised that this be corrected. Subsequently, the Department's outdoor advertising administrator also discussed the matter of the missing tags on the subject signs with the Petitioner's divisional manager. At this time the divisional manager denied that the Petitioner owned these signs, and that there was no reason to replace the tags. On December 12, 1983, violation notices were issued by the Department charging that the signs at the subject location were in violation of the statutes and rules, and that these signs would be removed unless an administrative hearing was requested within 30 days. Since the Petitioner's logo appeared on these signs, the violation notices were directed to the Petitioner, and mailed returned receipt requested. When the time afforded to request an administrative hearing expired without any response from the Petitioner, the Department issued its final order for the removal of the subject signs. Pursuant to this order, the Department caused these signs to be removed. The signs that the Deparatment removed were nonconforming signs. If they were rebuilt they would violate the statutory spacing requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Petitioner's request for replalcement tags for permit numbers 3988-2 and 3990-2 for signs on U. S. 17-92, 1.49 miles south of SR 436, in Seminole County, be DENIED, and that the fees paid by the Petitioner for the years 1984 and 1985 be REFUNDED. THIS RECOMMENDED ORDER entered this 15th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1985. COPIES FURNISHED: Gerald S. Livingston, Esq. Post Office Box 2151 Orlando, Florida 32802-2151 Philip S. Bennett, Esq. Haydon Burns Building, MS 58 Tallahassee, Florida 32301-8064 Hon. Paul A. Pappas Secretary Dept of Transportation Haydon Burns Building Tallahassee, Florida 32301
