Findings Of Fact The Petitioner, Carter Signs is in the business of outdoor advertising which includes the installation, repair and maintenance of signs, billboards, or displays on real property. Pursuant to a twenty-year term lease that began on March 1, 1988, the Petitioner has leased the real property described as: Strap No. 344525-00- 00002.000 lying east of 1-75, in Lee County, Florida. The lease describes the specific intended use of the real property under the lease. The lessee has agreed to use and occupy the premises solely for the purpose of outdoor advertising. The real property is located in Lee County, Florida, within 660 feet of Interstate Highway 75, a highway in the interstate highway system. The property is approximately 1.5 miles south of the Daniel Road interchange on the east side of the highway. The Lee County Comprehensive Plan, which has been enacted by the county, designates the area in which real property is located as "Airport Commerce." Under the plan, this land is approved for "mixed use developments consisting of light manufacturing or assembly, warehousing and distribution facilities; offices; ground transportation and airport related interconnection activity; and hotels/motels, meeting facilities and other hospitality services." The Petitioner's application to Lee County for a permit to erect the proposed sign on the property was approved. The county permit shows that the property is zoned "agricultural." If the "agricultural" zoning classification is violated, the county permit becomes void. The application for permit to the Department was denied because Section 479.111(2), Florida Statutes, allows signs within a controlled portion of an interstate highway only if the sign is within a commercial-zoned area, an industrial-zoned area, a commercial-unzoned area or industrial-unzoned area. In this case, the proposed sign was to be placed in an agriculturally zoned area.
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.
Recommendation It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. COPIES FURNISHED: Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58 Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Frank J. Seiz 4811 Palmetto Point Road Palmetto, FL 34221-9721 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether the outdoor advertising structure of the Petitioner, Florida Outdoor, Inc., is in violation of Section 479.13 and 479.05 of the Florida Statutes.
Findings Of Fact The Petitioner, Florida Outdoor, Inc., is the owner of two signs located on U.S. Highway 41, six miles east of SR 839A. One has a copy of "Wootens Airboat Tours" and the second sign which is also located on U.S. Highway 41, fifty feet (50') east from Bridge No. 95 has a copy of "Shell Factory." The real property upon which these structures are located was formerly owned by the Collier Company of Naples, Florida, who by letter dated November 17, 1976, notified the Petitioner that it expected to conclude negotiations for sale of its property leased by Petitioner sign company on November 1976 and therefore would not renew any sign space leases beyond their expiration date of December 31, 1976. The leases were not renewed and the structures stand upon the property without authorization from the present owner of the property, the State of Florida, which has leased it to the National Park Service. By letter dated April 14, 1977, the National Park Service, requested the Respondent DOT which has the responsibility to administer and enforce the outdoor advertising law, Chapter 479, F.S., to remove subject signs. As a reason for the request, it cited: Title 23 CRF - Highways, Part 131(h) states that "All public lands or reservations of the United States which are adjacent to any portion of . . . the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary," and Part 138 Preservation of parklands states: "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands."
Recommendation Remove the Petitioner's signs. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32790 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Did the Department of Transportation properly issue Notice of Violation No. 10B LJM 1997 197 to Respondent pursuant to Chapter 479, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Deron's owns the property located at 4212 Hammond Drive (State Road 542) which is on the east side of Hammond Drive. Deron's business establishment is located at 4212 Hammond Drive. Deron's primary business activities such as screen printing, embroidery, and sales are conducted at 4212 Hammond Drive. Eastwood Self-Storage (Eastwood) is located at 4207 Hammond Drive, which is on the west side of Hammond Drive. Eastwood is in the business of leasing storage spaces to the public for self-storage. Deron's currently leases three self-storage spaces from Eastwood where Deron's primarily stores its excess inventory and supplies. Deron's does not have a business office located at 4207 Hammond Drive and does not conduct any of its business activities such as screen printing, embroidery, and sales at the self-storage units located at 4207 Hammond Drive. The sign subject to this proceeding (sign) is located at 4207 Hammond Drive on property owned by Eastwood. Deron's paid Eastwood to erect the subject sign which sits on top of an on-premise sign owned by Eastwood. Deron's does not pay any rent for the use of the sign to Eastwood or anyone else. The sign advertises Deron's business and the business activities performed by Deron's at its establishment located at 4212 Hammond Drive. Hammond Drive separates the property owned by Eastwood where the sign is located (4207 Hammond Drive) from the property owned by Deron's at 4212 Hammond Drive upon which Deron's business establishment is located. The sign is located within 660 feet of, and is visible to, State Road 542, a jurisdictional highway for purposes of enforcing outdoor advertising. Because of the location of the subject sign (within a 1000 feet of another permitted sign on the same side of Hammond Drive), it does not meet the permitting requirements of Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the subject sign to be in violation of Chapter 479, Florida Statutes; and it is further recommended that Deron's be required to remove the sign from its location. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st of December, 1998. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John G. Wood, Jr., Esquire 3601 Cypress Gardens Road Suite A Winter Haven, Florida 33884
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
The Issue The issue for determination is whether Petitioner’s applications for a State sign permit should be granted.
Findings Of Fact No dispute exists that DOT 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 in accordance with Chapter 479, Florida Statutes. Mr. Monsalve wishes to place two advertising signs within 660 feet of Interstate 95 and visible to Interstate 95. The advertising signs require a permit. On or about June 16, 2008, Mr. Monsalve filed two applications, completing DOT’s forms titled “Application for Outdoor Advertising Permit” (Application), with DOT for outdoor advertising signs. The two applications indicated the same location for the outdoor advertising but with different height, width, and total square feet: one was a height of 4 feet, width of 60 feet, and 240 total square feet, and the other was a height of 12 feet, width of 12 feet, and 144 total square feet. The two Applications were assigned Application numbers 57196 and 57197, respectively. The location for the proposed outdoor advertising signs is 299 Southwest 17 Road in Miami, Florida, near Interstate 95, North of Southwest 3rd Avenue. Mr. Monsalve owns the property on which the advertising signs are to be located. The Application contained a section titled “Local Government Permission.” The section provided that it was to be completed by the appropriate local government official or that a “written statement indicating that the sign complies with all local government requirements” may be submitted or, “for a proposed sign location, a copy of the building permit issued by the local government may be submitted.” The section was neither completed by the local government official nor was a written statement submitted indicating that the signs comply with all local government requirements. However, Mr. Monsalve submitted a 1999 building permit from the local government. The local government was the City of Miami. The 1999 building permit was issued by the City of Miami on July 13, 1999, to Hampton Inn for a commercial painted wall sign, located at 299 Southwest 17 Road. The building permit was issued Permit Number SG 99-5011166. The Folio Number, i.e., Property ID Number, on the 1999 building permit is No. 01-4138-002-0020. Mr. Monsalve owns the property for which the 1999 building permit was issued for the advertising sign. The property is the same property identified on his Application, assigned Application number 57197. DOT requires that, in order for a building permit to constitute “local government permission,” the permit must have been issued within six months of the date of an application for an outdoor advertising sign. The 1999 building permit submitted by Mr. Monsalve was beyond the six-month time period of the date of Application number 57197. Furthermore, by letter dated June 25, 2008, the City of Miami notified DOT that the 1999 building permit no longer had legal status due to the City of Miami changing its laws regarding billboards and that Mr. Monsalve did not have local government permission.3 The evidence demonstrates that the 1999 building permit did not constitute local government permission. The evidence failed to demonstrate that Mr. Monsalve had obtained local government permission. In March 2004, DOT issued a permit to the Hampton Inn for an outdoor advertising sign on Mr. Monsalve’s property. The permit was issued Tag Number CA179, and the sign was built on August 19, 2004. The permit information provides, among other information, that the location of the outdoor advertising sign was located 0.040 miles North of Southwest 3rd Avenue and that the sign was 144 square feet. Hampton Inn and Mr. Monsalve entered into an agreement/contract for Hampton Inn to lease outdoor advertising space from Mr. Monsalve at 299 Southwest 17 Road, Miami, Florida. A Second Lease Agreement between Mr. Monsalve and the Hampton Inn indicates in provision numbered one that the lease agreement was extended until March 31, 2007. The evidence demonstrates that, subsequent to March 31, 2007, the lease of the space by the Hampton Inn continued on a month-to-month basis and that the last time that Mr. Monsalve received payment for the monthly lease was in March 2008. The location for the outdoor advertising sign permit, Tag Number CA179 is the same location of Mr. Monsalve’s proposed outdoor advertising sign in Application number 57197. In June 2008, the outdoor advertising sign permit, Tag Number CA179, was transferred from Hampton Inn to Outlook Media using DOT’s form titled “Outdoor Advertising Permit Transfer Request.” The permit is considered by DOT to be currently active. The location for Mr. Monsalve’s Application number 57197 is currently permitted to Outlook Media due to the transfer of outdoor advertising sign permit, Tag Number CA179 to Outlook Media. The distance between the proposed sign in Mr. Monsalve’s Application number 57196 and the space in the outdoor advertising sign permit, Tag Number CA179, is less than 1500 feet. The evidence demonstrates that the sign in Mr. Monsalve’s Application number 57197 conflicts with the outdoor advertising sign permit, Tag Number CA179, in that the two are the same location. Mr. Monsalve believed that he, as the property owner, owned the outdoor advertising sign permit, Tag Number CA179, as well. He did not agree for the permit to be transferred. Mr. Monsalve was not aware that the outdoor advertising sign permit, Tag Number CA179, had been transferred by Hampton Inn to Outlook Media. The evidence was insufficient to demonstrate that he owned or did not own the permit or that his permission was required for the permit to be transferred. Mr. Monsalve did not agree to lease the space for the outdoor advertising sign permit, Tag Number CA179, to Outlook Media. Mr. Monsalve notified DOT that a problem existed between him and the City of Miami regarding obtaining local government permission and requested DOT to put his Application on “Hold” in order to provide him with time to resolve the problem. He also notified DOT regarding his dispute with the transfer of the outdoor advertising sign permit, Tag Number CA179, to Outlook Media. DOT is unable to place applications on hold but is required to act on applications within 30 days. Also, Mr. Monsalve notified the City of Miami, among other things, of his dispute with the transfer of the outdoor advertising sign permit, Tag Number CA179, to Outlook Media, and that he did not give Outlook Media permission to erect a sign on his property for which the outdoor advertising sign permit, Tag Number CA179, was issued. By Notice of Denial issued on July 3, 2008, DOT notified Mr. Monsalve that his Applications were denied for the following reason: Other: No statement from the appropriate local governmental official indicating that the agency or unit of local government will issue a permit to the applicant upon approval of the state permit application by the Department (Section 479.07(3)(b), Florida Statutes). On July 15, 2008, DOT issued an amended Notice of Denial, notifying Mr. Monsalve that his Applications were denied for the following reasons: Sign does not meet spacing requirements (1500’ for interstates . . .) s.479.07(9)(a)1.&2., FS In conflict with permitted sign(s), tag #(s) CA 179 held by Outlook Media of South Florida, LLC . . . Sign/location does not comply with all local government requirements . . . s.479.07(3)(b), FS Other: The building permit submitted with the application is not in compliance with local governmental requirements. No evidence was presented to demonstrate that a determination had been made as to what Mr. Monsalve’s legal rights are as the owner of the property regarding his lease agreement/contract with the Hampton Inn and the outdoor advertising sign permit, Tag Number CA179; and regarding the transfer of the outdoor advertising sign permit, Tag Number CA179.
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 Andres Monsalve’s application for an outdoor advertising sign permit. DONE AND ENTERED this 17th day of December 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 17th day of December, 2008.
Findings Of Fact Emerald applied for an outdoor advertising sign permit for a location approximately 778 feet west of the location for which a permit had previously been issued to Lamar. If the permit previously issued to Lamar were not in spatial conflict with the permit site sought to be used by the Petitioner, the Petitioner's permit could be granted. The Petitioner's proposed site, however, is in statutorily prohibited proximity to Lamar's site, if Lamar's permit is deemed valid. The Department denied Emerald's application because its proposed application was, in the view of the Department, in spacing conflict with the site related to Lamar's permit. The controversy at issue relates to a parcel of land in Destin, Florida, owned by members of the family of Kathleen Jones. Herman Jones owned a portion of the property, and Mildred Castro owned a portion of the property. Kathleen Jones held a life estate to Mildred Castro's portion of the property. Permits were issued to Lamar on June 25, 1981 for a sign at the Jones/Castro site. The sign was erected in August of 1981 and was supported by leases of the real estate involved between Lamar and the Joneses. That sign was maintained continuously until May of 1992. Herman Jones sold his portion of the property in 1992 to Frank J. Roberts and Destin Renaissance, Inc. A survey in conjunction with that sale revealed that the sign was partially on the parcel sold to Roberts and partially on the parcel retained by the Jones family. Lamar, accordingly, moved its sign, since it encroached on the Roberts parcel and executed a release of its lease as to the real estate which Herman Jones had sold to Roberts. Ever since the 1981 erection of the sign, the lease for the site had been between Lamar and Kathleen Jones. It was a written lease and provided for annual renewals. The annual lease payment had been increased in 1985 and again in 1987. On July 27, 1990, the lease was again re-written to increase the annual rental payment. On March 11, 1992, Mr. Roberts sent a letter to the Department's Chipley office stating that he and his corporation had purchased the property from Herman Jones and that he did not have a lease with Lamar. Acting upon that letter, the Department sent a letter to Lamar on April 6, 1993 which stated: This office has received information to the effect that you no longer have permission from the land owner to erect or maintain signs on the South side of US 98, 6.3 miles East of SR 85. The permits numbers are AE678-06 and AE679-06. If, in fact, this information is true and correct the permits issued for these sites are invalid pursuant to Section 479.07(7) Florida Statutes. You are hereby notified that the Department's determination of invalidity will become con- clusive and the subject permit(s) will be revoked unless you elect to challenge this action by requesting an Administrative Hearing pursuant to Section 120.57, Florida Statutes, within thirty (30) days from receipt of this letter. The request should be addressed to: Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 In the interim, if you can furnish documentary evidence of current permission from the present property owner to refute this information, it may be possible to resolve this matter to mutual satisfaction. Lamar replied to that letter on April 15, 1993 stating: We do have landowner permission for the referenced site as evidenced by our recorded lease of 8/07/90 and our amended lease for the same site dated 12/16/92. In addition the referenced tags were replaced by tags BG796-35 and BG797-35 on 2/15/93. This should be substantial evidence to refute any claim that we do not have landowner permission. Please indicate to me in writing the effect this will have on the need for an administrative hearing. In conjunction with the submittal of that letter of April 15, 1993, Lamar submitted a copy of its recorded lease with Herman Jones dated August 7, 1990 and a copy of its lease with Kathleen Jones dated December 16, 1992. Upon receipt of those documents, the Department concluded that Lamar did have written permission from the landowner to erect a sign at a location for which the permits described in paragraph three above were issued. The Department took no further action to revoke Lamar's permit, and Lamar, therefore, did not apply for an administrative hearing. The Department rejected Emerald's application by letter dated February 9, 1993, and Emerald requested an administrative hearing to contest that initial decision. The rejection of Emerald's permit application was due to the fact that the proposed permit was located less than 1,000 feet (778 feet) from Lamar's permit location. The Department took the position that Lamar's permits were still valid because it had provided satisfactory evidence to the Department that it still had landowner permission for the subject Lamar sign, by presenting a valid lease for the property in question, the Jones/Castro parcel.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that the applications of Emerald Outdoor Advertising, Inc. for outdoor advertising permits in Destin, Florida, be denied. DONE AND ENTERED this 1st day of February, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2668T Petitioner's Proposed Findings of Fact Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and as constituting a conclusion of law instead of a proposed finding of fact. Respondent Department's Findings of Fact The Respondent, Department of Transportation, adopts the proposed findings of fact submitted by the Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc. Thus, those proposed findings of fact are accepted. Proposed finding of fact number nine submitted by the Department, in addition to those submitted by Lamar, is rejected as being unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent Lamar's Proposed Findings of Fact The Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc.'s proposed findings of fact are accepted in their entirety as are the facts stipulated to by the parties. COPIES FURNISHED: Martin B. Daniel, Esq. 47 North Third Street Memphis, TN 38103 Robert P. Gaines, Esq. BEGGS & LANE Post Office Box 12950 Pensacola, FL 32576 Paul Sexton, Esq. Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Appellant raises three issues on appeal: (1) whether there is competent substantial evidence to support certain findings in the Resolution; (2) whether the Commission departed from the essential requirements of the law by incorrectly applying and interpreting the definition of "public buildings"; and (3) whether the Commission denied Hoover "a fair and impartial hearing" by basing its decision "on a plebiscite from a hostile crowd." For the reasons expressed below, the Commission's Resolution is affirmed.
