Findings Of Fact The Respondent is the State of Florida's regulatory agency for advertising along state and federal highways. On January 1, 1995, Petitioner was the holder of three State of Florida outdoor advertising sign permits (among others): AU204-35, BH947-25 and BH948- 25. The sign covered by Permit No. AU204-35 (hereinafter "Sign A") was a wooden billboard located approximately 100 yards east of a weight station on Interstate 4. As trucks leave the weight station heading east, the sign was to their right. The sign covered by Permits No. BH948-25 and BH947-25 (hereinafter "Sign B) is an electrified high-rise sign located at the interchange of Interstate 4 and State Road 39. The sign is on the south side of the interchange. The signs at issue both serviced a truck stop on the north side of the interchange at Interstate 4 and State Road 39. Sign A also serviced a fueling operation at Interstate 4 and Park Road. About 27,000 outdoor advertising permits are listed within the Respondent's outdoor advertising system. Outdoor advertising sign permit renewal fees are due on January 15 of each year for all State of Florida outdoor advertising sign permits. If a permit holder's renewal fees are not received by the Respondent on or before January 15 of any given year, its outdoor advertising sign permits expire. By November 1 of each year, the Respondent sends a billing statement to every permit holder notifying them of the fees which will become due in January of the following year. Petitioner paid its permit renewal fees in 1994. In November of 1994, the Respondent sent to Petitioner a billing statement listing the fees which would become due on January 15, 1995, for its outdoor advertising sign permits. This billing statement included, among others, Petitioner's permits numbered AU204-35, BH947-25 and BH948-25. (Hereinafter referred to collectively as "Permits"). On January 15, 1995, permit renewal fees for Petitioner's Permits became due. If an outdoor advertising sign permit holder has not paid its permit renewal fees by January 15 of a given year, then by February 1 of that year it is the Respondent's practice to mail to the holder a notice of violation for nonpayment. The Respondent sends an average of 350 notices of violation each year. The notice of violation is sent certified mail, return receipt requested, and the article number on the certified mail card is documented on the bottom of the notice of violation. The notice of violation has a copy of the affected permits attached to it indicating the permits to which it applies. The notice is folded and inserted into a window envelope so that the address shows through the window. The envelope is then sealed and a certified mail card with the vendor's name on it is attached The notice of violation notifies the permit holder that the Respondent has not received its permit renewal fees and that the listed permits will expire if the holder does not submit its permit fees, including a ten (10) percent delinquent fee, within thirty (30) days. Petitioner's permit renewal fees were not received by January 15, 1995. On February 1, 1995, the Respondent mailed to Petitioner by certified mail, return receipt requested, a Notice of Violation and Order To Show Cause- Non-payment. (Hereinafter referred to as "Notice of Violation"). The Respondent's Notice of Violation was mailed to Petitioner at Post Office Box 945140, Maitland, Florida 32751. Petitioner's correct mailing address is Post Office Box 945140, Maitland, Florida 32795-5140. The article number on the certified mail card is documented on the bottom of the Notice of Violation. The Respondent's Notice of Violation had a copy of the affected permits attached to it indicating the permits to which it applied. The Respondent's Notice of Violation notified Petitioner that the Respondent had not received its permit renewal fees for its Permits and that they would permanently expire if Petitioner did not submit its permit fees, including a ten (10) percent delinquent fee, within thirty (30) days. The Respondent's Notice of Violation notified Petitioner that failure to pay its permit fees within the thirty (30) day period would subject its signs to immediate removal by the Respondent; and that Petitioner had a right to request an administrative hearing within thirty (30) days of the date of the Notice. Petitioner did not pay its permit fees or request an administrative hearing within the time limit set out in the Respondent's Notice of Violation. On February 23, 1995, Respondent received the 1995 renewal fees for an account identified as "Texaco Star Enterprise," which covers other permits, and that account is in good standing. The Respondent returned the check submitted by Petitioner on August 29, 1995 for the Star Enterprise (Petitioner) account. Star Enterprise is an organization which refines, distributes and markets petroleum products under the Texaco brand throughout twenty-six states. In 1994 and 1995 Star Enterprise owned approximately 400 locations in the State of Florida which were operated for the purpose of selling Texaco products to the general public. Star Enterprise operates some retail locations through its own salaried employees. These salaried operated retail outlets are known by the acronym "SORO." The SORO group is responsible for maintenance on SORO locations. Star Enterprise also owns retail locations which are operated by third parties under a lease. Star Enterprise presently oversees the day to day operations of its organization in the State of Florida from its office located at 650 South North Lake Boulevard, Suite 450, Altamonte Springs, Florida. In approximately 1993, Star Enterprise began to downsize and reorganize its operations. In December 1993, Star Enterprise moved its regional office to its current location in Altamonte Springs from 555 Winderly Place, Maitland, Florida. Whereas the Maitland office had operated with approximately 130 employees, only 34 employees moved to the Altamonte Springs location. Downsizing has continued, with approximately 25 persons still employed in the Altamonte Springs office. Since moving to its Altamonte Springs office, Star Enterprise has received mail at its physical location on North Lake Boulevard and at Post Office Box 945140 at the Maitland, Florida Post Office. Mail is delivered to the North Lake Boulevard location by the postal service and through various courier services. On weekdays mail is retrieved at the Maitland Post Office by a courier service and delivered by courier to Star Enterprise at the North Lake Boulevard office. Budget Couriers of Florida, Inc. (hereinafter "Budget Couriers"), is a delivery service operating throughout the Orlando metropolitan area. Budget Couriers' business is retrieving packages and mail from the Post Office and delivering them to its clients. Star Enterprise is a client of Budget Couriers. Budget Couriers picks up the mail for Petitioner at the Maitland Post Office. The mail is not retrieved from a box with a key, but is picked up at the back door area in plastic bins. A post office employee brings the mail bin to the courier at the dock and he signs for it. Budget Courier picks up mail at the location for several clients. Each one has separate bins for their mail. Budget Couriers acts in the capacity of Petitioner's agent for purposes of the retrieval and delivery of mail sent to Petitioner at its Post Office Box 945140 in Maitland, Florida. When an article of certified mail is sent to one of Budget Couriers' clients, Budget Couriers' employee signs for the article on behalf of that client. Petitioner authorizes Budget Couriers to sign for and retrieve certified mail on behalf of Star Enterprise. The certified mail is then placed in the client's bin. After retrieving the mail bins at the post office, the courier delivers the mail to each client, including Petitioner. When the mail is delivered the courier obtains a receipt for the contents of the entire bin. The receipt does not identify specific pieces of mail, including certified mail; nor is an inventory of the mail provided. When the Respondent prepares a notice of violation to be sent to a delinquent permit holder, the article number on the certified return receipt card is documented on the bottom of the notice of violation. The Respondent's Notice of Violation was received by Petitioner at its Post Office Box 945140 in Maitland, Florida, on February 6, 1995. The certified return receipt accompanying the Respondent's Notice of Violation was signed on behalf of Petitioner by an employee of Budget Couriers, Billy Hadd. The article number on the certified return receipt accompanying the Respondent's Notice of Violation corresponds to the number documented on the bottom of the Respondent's Notice of Violation. Petitioner acknowledged its receipt of the mail delivered by Budget Couriers on February 1, 2, 3, 6, 7, 8 and 9, 1995. Star Enterprise elected to have its mail retrieved from the Post Office by a contract courier. Petitioner did not receive an inventory of the individual articles of mail retrieved from its Post Office box and delivered to it by Budget Couriers. Petitioner received the Notice of Violation on February 6, 1995. The Respondent did not receive any payment in response to the Notice of Violation sent to Petitioner regarding its delinquent permit renewal fees. Petitioner had prior knowledge of the outdoor advertising sign permit renewal process. Petitioner has been renewing its outdoor advertising sign permits as far back as 1989. The action taken by the Respondent regarding Petitioner's Permits was consistent with the action it takes regarding any other outdoor advertising sign permit holder which fails to pay its outdoor advertising sign permit renewal fees in response to a notice of violation issued by the Respondent. It is the policy of Respondent not to accept late payments for expired outdoor advertising sign permits. Respondent believes that acceptance of late payments for expired outdoor advertising sign permits would violate the agreement between the Governor and the U. S. Department of Transportation. ( Hereinafter referred to as "Agreement"). Violation of the Agreement could possibly subject the State of Florida to penalties equal to ten (10) percent of the Federal participation in transportation projects within the State of Florida, which at this time would amount to a penalty of approximately sixty (60) million dollars per year. One of the key elements of the outdoor advertising regulatory process is to treat all permittees the same. Petitioner received the same treatment from the Respondent as would any other permittee under the same circumstances. Outdoor advertising sign permit renewal is a yearly occurrence and Petitioner was no stranger to the permit renewal process including the procedure for delinquent permit renewal fee payments. Petitioner failed to pay its outdoor advertising sign permit renewal fees on two other occasions in the past. On both of these occasions Petitioner received the Respondent's notice of violation at the same address as the violation at issue. On these past occasions Petitioner paid its renewal fees within the reinstatement period and its permits were reinstated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Petitioner's outdoor advertising sign permits have permanently expired. RECOMMENDED that a Final Order be entered determining that the request for hearing filed by Petitioner was not timely filed; and denying its request to reinstate two outdoor advertising sign permits. DONE and ENTERED this 6th day of September, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 6th day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0340T To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8 (in part), 11 (in part), 12, 17, 18 (in part), 20, 25, 26, 27, 28, 29, 30, 31, 32, 33 (in part), 34, 35 (in part), 36 (in part), 37 (in part), 39 (in part), 40 (in part), 46 (in part), 47, 48 (in part), 70 (in Preliminary Statement), 71 (Preliminary Statement in part), 74. Rejected as subsumed or irrelevant and immaterial: paragraphs 6, 8 (in part), 9, 10, 11 (in part), 13, 14, 15, 16, 18 (in part), 19, 21, 22, 23, 24, 33 (in part), 35 (in part), 36 (in part), 37 (in part), 38, 39 (in part), 40 (in part), 41, 42, 43, 44, 45, 45, 46 (in part), 48 (in part), 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71 (in part), 72, 73, 75 (conclusion), 76, 77 (conclusion of law). Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (in part), 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,22, 25, 26 (in part), 27, 28, 29, and 30. Rejected as against the greater weight of evidence: paragraph 10 (in part), 12. Rejected as subsumed or irrelevant and immaterial: paragraphs 23, 24, and 26 (in part). COPIES FURNISHED: Elizabeth C Wheeler, Esquire Johnson and Bussey, P.A. Post Office Box 531086 Orlando, Florida 32853-1086 Murray M. Wadsworth, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben W. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the outdoor advertising sign of Petitioner should be removed.
Findings Of Fact A notice of alleged violation of Chapter 479 and Section 335.13 and 339.301, Florida Statutes and notice to show cause were sent to Petitioner, Highland Court on August 18, 1977. The notice alleged that the subject outdoor advertising sign with copy, Highland Court, located 2.11 miles north of US 192; US 1 13 N Mile Post 2.11 was in violation of Chapter 479.07(2), and Rule 14- 10.04 having no current permit tag visible. The Petitioner asked for an administrative hearing which was properly noticed. Prior to the hearing the Petitioner stated that he was retiring and had no further interest in the sign. He stated that he was selling the business. Evidence was presented that the subject sign was erected without a permit from the Florida Department of Transportation. It has no current state permit tag attached. An application had been made for a permit but the permit was denied for the reason that the sign stands less than 500 feet from an existing sign to which is attached a current and valid permit.
Recommendation Remove the sign. DONE AND ORDERED this 21st day of August, 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 32301 Mr. Kenneth E. Gross, Manager Highland Court 24 North Harbor City Blvd. Melbourne, Florida 32935
Findings Of Fact The Respondent, Gary Dotson, d/b/a Castaway Point, holds outdoor advertising sign permit number 6637-2 authorizing a sign on U.S. 1, 1.3 miles north of SR 516, facing west, in Brevard County, Florida. This location is inside the road right-of-way of the City of Palm Bay. At the time when the subject sign Permit was issued by the Department, the City of Palm Bay had given permission to erect a sign at this location. This permission was for a period beginning on February 15, 1979, and expiring in April of 1980. A sign had been erected at the site where the permit had been issued. This sign was erected by a previous owner, and when the Respondent bought Castaway Point the purchase included the sign. The sign which was authorized by the subject permit was removed by the City of Palm Bay after the City's permission for continued maintenance of this sign had expired. There is presently no authority from the City of Palm Bay for the Respondent to have a sign at the permitted site.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that permit number 6637-2 held by Gary Dotson, d/b/a Castaway Point, for a sign on US. 1, 1.3 miles north of SR 516, facing west, in Brevard County, Florida, be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of March, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. Gary Dotson 3101 Bay Boulevard, N.E. Palm Bay, Florida 32905 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue Whether the structure described in the Department of Transportation's Notice of Violation No. 10B DB 2000 007 (Notice) is in violation of Section 479.07(1), Florida Statutes, and therefore subject to removal pursuant to Section 479.105, Florida Statutes, as alleged in the Notice.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is an outdoor advertising company that was formerly known as AK Media. On December 10, 1998, Petitioner (while still known as AK Media) entered into an agreement with NWT Partners, Ltd., the owner of the New World Tower (Building), a "thirty story four (4) sided building" located at 100 North Biscayne Boulevard in Miami, Florida, to lease certain portions of the Building. The lease agreement contained the following provisions, among others: Effective Date. This Lease shall become effective on the later of (x) the date that Tenant provides written notice to Landlord that Tenant has obtained all permits, license and governmental approvals necessary or required to enable Tenant to construct, maintain and operate the Wall Faces and Wall Structures, as hereinafter defined or (y) January 1, 1999 (the "Effective Date"). Tenant shall have ninety (90) days from the date of this Lease to obtain all such permits, licenses and approvals or the Landlord may cancel this Lease. Purpose. The purpose of this lease is for Tenant to construct, maintain and operate painted, printed, illuminated and/or electrical signs on the north and south wall faces of the Building (the "Wall Faces"), and all other uses not inconsistent therewith, including all necessary supporting structures, devices, illumination facilities and connections, service ladders and equipment, and other appurtenances (the "Wall Fixtures"). All construction to the Building, and advertising thereon, including construction drawing and artwork to be furnished by the Tenant shall be subject to Landlord's written approval, which approval shall not be unreasonably withheld. Tenant's Right to Enter and Use. For the duration of this Lease, Tenant shall have the non-exclusive right to enter onto the Property and into the Building and use the Wall Faces for the purposes described in this Lease and any other purposes allowed or required by this Lease and Tenant has the exclusive right to use the Wall Faces Property for advertising. In exercising Tenant's rights hereunder, Tenant may hang or attach the Wall Fixtures to the roof and exterior structure of the Building. Tenant shall maintain the Wall Fixtures at Tenant's cost and expense. Tenant shall pay all utility charges in connection with the operation and maintenance of the Wall Fixtures. Tenant shall be responsible for damage to the Building which is caused by Tenant's operation and maintenance and removal of the Wall Fixtures and shall repair any such damage and restore the Building to the condition it was in immediately prior to such damages at the expiration or termination of this Lease. Term. The term of this Lease is for five (5) years from the "Rent Commencement Date," as hereinafter defined, to the last day of the month during which the fifth anniversary of the Rent Commencement Date occurs (the "Term"). Rent. Tenant shall pay Landlord rent annually, in accordance with the schedule (the "Rent Schedule") set forth on Exhibit "B" hereto, inclusive of all taxes . . . . Contracts. Anything herein to the contrary notwithstanding, Tenant will use its best efforts to obtain contracts (the "Contracts") for advertising on the Building which exceed the amount of the Guaranteed Rent, as set forth on the Rent Schedule. . . . 9. Ownership/Removal. At all times, Tenant is and shall remain the owner of the Wall Fixtures and all signs and permits of any kind in relation thereto, and has the right to remove the Wall Fixtures at any time. . . . Exhibit "B" Rent Schedule Tenant shall pay annual rent to Landlord in an amount equal to the greater of (x) Fifty-five percent (55%) of the gross revenues attributable to advertisements displayed on the North Wall and the South Wall of the Building less any agency fee or commissions not greater than 16 2/3% to bona fide third parties (the "Net Revenues") associated with such advertisements (the "Percentage Rent") or (y) the minimum guaranteed annual rent (the "Guaranteed Rent") hereinafter set forth as follows: . . . The Landlord may terminate the Lease Agreement upon thirty (30) days prior written notice to Tenant if either Wall is vacant for more than one hundred twenty (120) consecutive days during the Term of the Lease and the Tenant has failed to obtain a contract, before the expiration of such notice period, for advertising on the North Wall or South Wall, as the case may be, pursuant to which the projected Percentage Rent under such contract would exceed the Guaranteed Rent. . . . Subsequently, Petitioner (while still operating under the name AK Media) entered into a "bulletin contract" with New York Outdoor, an advertising agency acting on behalf of Supreme International, in which Petitioner agreed, for a fee, to produce and maintain an "outdoor advertising display" for Supreme International on the north wall of the Building. Supreme International sells "Perry Ellis" and "Perry Ellis for Men" brand fashion apparel. In accordance with the "bulletin contract," Petitioner produced an "outdoor advertising display" for Supreme International on the north wall of the Building. The "outdoor advertising display" that Petitioner produced was a large mural more than 100 feet high and more than 60 feet wide. Such a product is referred to in the outdoor advertising industry as a "wallscape." The "wallscape" that Petitioner produced for Supreme International consisted of artwork (a picture of a young woman) and print (the words "Perry Ellis for Men") on a "canvass-type" material that was mounted on a "picture frame" support structure attached to the north wall of the Building. It was located within 660 feet of the nearest edge of the right-of-way of a roadway, US Highway 1 (also known, in that location, as North Biscayne Boulevard), which is a part of the federal-aid primary highway system. The artwork and print could be seen without visual aid by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building. At no time has Petitioner applied for, or obtained, a permit from the Department authorizing it to erect and maintain a "sign," as that term is used in Chapter 479, Florida Statutes, on the north wall of the Building. Petitioner, however, did seek and obtain a Class II Special Permit from the City of Miami. The permit was granted by the Miami City Commission, through the passage of Miami City Commission Resolution 99- 828, at its October 26, 1999, meeting. The printed agenda distributed in advance of the meeting stated the following concerning the permit for which Petitioner had applied: Consideration of approving Class II Special Permit No. 99-0142 for the property located at approximately 100 North Biscayne Boulevard for a sign of a graphic or artistic value. This will allow a mural containing a commercial message. The resolution passed by the Miami City Commission at the meeting read as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE RECOMMENDATION OF THE DIRECTOR OF THE PLANNING DEPARTMENT FOR ISSUANCE OF CLASS II SPECIAL PERMIT APPLICATION NO. 99-0142, SUBJECT TO THE CONDITION THAT THERE SHALL BE NO WRITING PERMITTED WITH THE MURAL AND OTHER CONDITIONS AS RECOMMENDED BY THE PLANNING DEPARTMENT FOR THE PROPERTY LOCATED AT APPROXIMATELY 100 NORTH BISCAYNE BOULEVARD, MIAMI, FLORIDA, PURSUANT TO SECTION 401 OF ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED. WHEREAS, the Director for the Department of Planning is recommending approval of Class II Special Permit Application No. 99-0142, with conditions, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida; and WHEREAS, Zoning Ordinance No. 11000, as amended, the Zoning Ordinance of the City of Miami, Florida, requires City Commission approval of the Class II Special Permit as hereinafter set forth; and WHEREAS, the City Commission after careful consideration of this matter, finds the application for a Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to approve the recommendation of the Director of the Department of Planning to uphold the issuance of the Class II Special Permit, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. Section 2. The recommendation of the Director of the Department of Planning to issue Class II Special Permit Application No. 99-0142, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida, is hereby approved, and the City Commission finds that the issuance of Class II Special Permit Application No. 99-0142, with conditions does meet the applicable requirements of Zoning Ordinance No. 11000, as amended. Section 3. The Resolution shall become effective immediately upon its adoption and signature of the Mayor. Inasmuch as the words "Perry Ellis for Men" were on the "wallscape" that Petitioner produced for Supreme International, this "wallscape" was not in compliance with the condition imposed by the Miami City Commission, in issuing the Class II Special Permit to Petitioner, that there "be no writing permitted with the mural." On February 22, 2000, Bernard Davis, who, at the time, was the Department's District 6 Roadside Outdoor Advertising Administrator, issued a Notice of Violation (Notice No. 10B DB 2000 007) alleging that the "wallscape" on the north wall of the Building (described above) was "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes" and directing that the sign be removed within 30 days. Petitioner thereafter requested an administrative hearing on the matter. Prior to the hearing, the artwork and print on the "wallscape" on the north wall of the Building were changed. As of the date of the final hearing in this case, the "wallscape" on the north wall of the Building contained a picture of a man and part of a woman and the words "Perry Ellis," underneath which was written "www.perryellis.com," Supreme International's website address. The Monday and Tuesday before the final hearing (February 5 and 6, 2001), Mr. Davis' successor, C. Jean Cann, went inside the Building to determine whether Supreme International had an "on-premises presence." On Monday, February 5, 2001, Ms. Cann entered the Building at approximately 1:15 p.m. After obtaining information from the Building's Electronic Directory that "Perry Ellis" occupied room 2128, she took the elevator to the 21st floor. After getting off the elevator, she walked down a hallway, where she saw a paper sign on a door which read "Perry Ellis/Supreme International, Incorporated, 2128." When she knocked on the door, no one answered. She waited 10 to 15 seconds and then knocked again, with the same result. She then, unsuccessfully, attempted to open the door. At around 1:45 p.m., she left the Building. Ms. Cann returned to the Building the following day at approximately 11:40 a.m., at which time she spoke to a security guard, who informed her that "Perry Ellis" "was in 2126." She then again went up to the 21st floor, and, on the same door that she had seen the "Perry Ellis/Supreme International, Incorporated, 2128" sign the day before, she saw a paper sign that read "Perry Ellis/Supreme International, Incorporated, 2126." Her knocks on the door, like those of the previous day, went unanswered, and she was again unable to open the door. At around 12:00 noon, she exited the Building. At no time during either of her two visits was Ms. Cann able to ascertain what, if any, business activity Supreme International was engaging in inside the Building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that the "wallscape" on the north side of the Building is a "sign" that was erected and is being maintained without the Department-issued permit required by Section 479.07(1), Florida Statutes, and that it therefore is a public and private nuisance that must be removed pursuant to Section 479.105(1), Florida Statutes. DONE AND ENTERED this 23rd day of March, 2001, 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 23rd day of March, 2001.
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 3rd day of April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issues in this case are whether Respondent should revoke Petitioner's sign permits and retrieve Petitioner's permit tags because Petitioner violated Sections 479.07(5) and 479.08, Florida Statutes, 1/ and Florida Administrative Code Rule 14- 10.004(7), 2/ by allegedly removing its sign from its property and by failing to display the permit tag prior to removing the sign.
Findings Of Fact Petitioner is a Florida corporation formed in 1983 by Mr. Rodney Forton. Mr. Forton is the president and sole shareholder of Petitioner. Sometime in 1987, Petitioner entered into a management agreement with Cotee River Outdoor Advertising Company ("Cotee River"). The management agreement provided that Cotee River would construct a sign on property owned by Petitioner on U.S. highway 19 in New Port Richey, Florida (the "Cotee River sign"). Cotee River agreed to pay Petitioner a portion of the advertising revenues from the sign. The Cotee River Permit On May 26, 1987, Cotee River applied for an outdoor advertising sign permit from Respondent. The application described the Cotee River sign as a rectangular wood sign measuring 10 feet by 20 feet, with its lowest point approximately 15 feet above ground level and its highest point approximately 25 feet above the crown of the road. Respondent approved the application and mailed the approval to Cotee River on May 29, 1987. On June 3, 1987, Respondent located the Cotee River sign in Respondent's sign inventory at, Section 595, ". . . N/B 5.06 in F/N." The number "5.06" indicates that the sign is located at milepost 5.06 on U.S. 19. 3/ Mileposts describe the location of each sign by the distance of the sign from a fixed point. Each of Respondent's outdoor advertising inspectors measures the milepost for each sign in his or her territory using a distance measuring instrument. Respondent then enters the milepost for each sign in Respondent's sign inventory. The milepost of 5.06 that Respondent assigned to the Cotee River permit was incorrect. In May 1987, Cotee River constructed a sign on Petitioner's property pursuant to the permit granted by Respondent. The sign was a metal monopole sign rather than the wood sign described in the application. The Cotee River sign was not constructed at milepost 5.060. Cotee River rented the sign to outdoor advertisers. However, Cotee River failed to pay any portion of the advertising revenue to Petitioner, and the parties resolved the matter by mutual agreement. Petitioner and Cotee River agreed that Cotee River would release its right to manage the Cotee River sign in consideration for the right to manage a sign located on other property owned by Petitioner. The agreement provided that Petitioner would pay Cotee River a prescribed sum in exchange for the performance of specific duties by Cotee River. Cotee River failed to perform the duties specified in the agreement. Petitioner refused to pay the balance of payments. Petitioner sued Cotee River. Cotee River went into bankruptcy and was dissolved. Petitioner's Permit On July 14, 1992, Petitioner applied for an outdoor advertising sign permit for the Cotee River sign. The application described the sign as an existing rectangular, metal, monopole "sign in place," measuring approximately 10 feet by 20 feet. The application stated that the sign was first erected in May 1987. Respondent approved the application from Petitioner and mailed the approval to Petitioner on October 12, 1992. Respondent again incorrectly listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/B 5.060 in F/N." Respondent issued permit tag number BG341-25 to Petitioner. Although Petitioner used the Cotee River sign to generate advertising revenue, Petitioner never displayed any tag numbers on the sign. The tag numbers remained in Petitioner's files until sometime in 1995. Dr. Goluba's Permit At about the same time that Cotee River went out of business in 1992, Robert L. Goluba, D.D.S., owned property immediately adjacent to Petitioner's property. Prior to March 1993, an unidentified representative of Respondent contacted Dr. Goluba. The representative told Dr. Goluba that there were two signs on Dr. Goluba's property that were going to be taken down if the sign permits were not renewed. The representative mistakenly identified one of the two signs as the Cotee River sign. The representative went on to explain that Respondent could avoid the expense of taking down the two signs if Dr. Goluba obtained permits for the signs. Dr. Goluba wanted the advertising revenues and agreed to obtain the necessary permits. On March 2, 1993, Dr. Goluba applied for a sign permit for the Cotee River sign he mistakenly believed to be located on his property. The application described the sign as an "existing" rectangular, metal, monopole sign measuring approximately 10 feet by 24 feet, with its lowest point approximately 18 feet above ground level and its highest point approximately 30 feet above the crown of the road. The application stated that the sign was first erected in May 1987. Respondent approved the application from Dr. Goluba and mailed the approval to him on March 8, 1993. Respondent listed the location of the Cotee River sign in Respondent's sign inventory as, Section 595, ". . . N/M.P. 4.870 in F/N." Respondent incorrectly listed Dr. Goluba's permit in the sign inventory at milepost 4.870. On March 24, 1993, Respondent issued permit number BG960-35 to Dr. Goluba. Although Dr. Goluba never derived advertising revenue from the Cotee River sign, he did display his permit on the sign. Dr. Goluba inadvertently failed to pay the fee required to renew the sign permit in 1994 and, therefore, failed to display current permits on the sign. On April 11, 1994, Respondent issued a Notice of Violation, Failure To Display Permit Tag. The New Outdoor Advertising Inspector In early 1995, a new outdoor advertising inspector assumed responsibility for the territory in which the Cotee River sign was located. On April 11, 1995, the inspector conducted a field inspection to verify the mileposts and signs in the territory for which he was responsible. The inspector correctly identified the milepost of the Cotee River sign as milepost 4.980. He found no sign subject to regulation by Respondent 4/ located at milepost 5.060. Milepost 5.060 and 4.980 are approximately 422 feet apart. Relevant law prohibits the location of regulated signs within 1,000 feet of each other. 5/ No exceptions to 1,000 foot prohibition applied to the Cotee River sign. The inspector concluded that Petitioner had removed the wood sign originally permitted to Cotee River in 1987 and which Respondent had incorrectly listed in its sign inventory as being located at milepost 5.060. On July 12, 1995, Respondent issued to Petitioner a Notice Of Violation -- Removed Sign. On August 22, 1995, Respondent ordered the revocation of Petitioner's tag permit because Petitioner had allegedly removed the Cotee River sign from milepost 5.060. Respondent never issued a Notice of Violation to Petitioner for failure to display his tag numbers on the Cotee River sign. Petitioner protested the revocation of its permit and refused to return the permit tags to Respondent. Petitioner requested an administrative hearing. In the meantime, Dr. Goluba's accountant had inadvertently failed to pay the permit fee for the Cotee River sign. Respondent placed the Cotee River sign on Respondent's "cutdown list" for failure to pay the required fees. On June 20, 1995, Respondent had the Cotee River sign cut down and removed. Respondent sent Dr. Goluba a bill in the amount of $4,990 for the cost of cutting the sign down and removing it. Prior to the date Respondent cut down and removed the Cotee River sign, Petitioner notified the inspector verbally and with written documentation that the sign was owned by Petitioner, located on Petitioner's property, and permitted to Petitioner. The inspector found that Respondent's records did not agree with Petitioner's records. The inspector informed Petitioner that the "cutdown order" came from Tallahassee and there was nothing the inspector could do. Dr. Goluba's tags were displayed on the Cotee River sign at the time it was cut down and removed. Ms. Maria Passanisi was the broker who managed the sign for Dr. Goluba. Ms. Passanisi was at the site when the sign was cut down and removed. She protested Respondent's action so vehemently that the police officers regulating traffic at the scene had to intervene to quell the disturbance. After Respondent cut down the Cotee River sign, Petitioner drove a stick into the ground where the sign had been located and displayed the permit tags for the removed sign on the stick. The tags were displayed on the stick at the time of the hearing. The Computerized Sign Inventory Respondent uses a computer system to maintain its sign inventory. The computer system does not accept the same milepost for two or more regulated signs. When Petitioner applied for its sign permit in 1992, Respondent was required to carry the Cotee River permit in the inventory as a void permit. The computer system would not accept the same milepost for Petitioner's permit and the void Cotee River permit. In order to circumvent the computer system, Respondent's supervisor of property management arbitrarily changed the milepost number entered for the Cotee River permit from milepost 5.060 to milepost 4.970. As late as September 20, 1993, Respondent's computerized sign inventory identified the Cotee River sign as being located at three incorrect mileposts. The inventory located the same sign permitted to Cotee River, Petitioner, and Dr. Goluba, respectively, at mileposts 4.970, 5.060, and 4.870. In 1995, the new outdoor advertising inspector correctly located the Cotee River sign at milepost 4.980. However, he mistakenly assumed that milepost 5.060 was the correct milepost for Petitioner's sign and erroneously concluded that Petitioner had removed its sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner did not remove the permitted sign and that the permits issued to Petitioner are valid. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of July, 1997.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER 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 4th day of January, 1994.
The Issue The issue in this case is whether Petitioner is entitled to an outdoor advertising sign permit to be located in an unzoned commercial/industrial area and whether the sign site qualified as an unzoned commercial/industrial area.
Findings Of Fact Lamar is in the business of erecting, operating and maintaining outdoor advertising signs in Northwest Florida. The proposed sign’s location was in Walton County along US Highway 331, .1 mile south of Bay Grove Road, a collector road. U.S. Highway 331 is a federal aid primary highway and therefore, a state permit is required for signs placed along its path. According to a Walton County zoning plan, the proposed sign’s location was in an area zoned Rural Village on both the Future Land Use Map and Land Development Regulations. The June 2006 version of the Walton County Land Development Code provides: F. Rural Village (RV): This district is a mixed use district which permits predominately residential development up to a maximum of two units per acre. Residential uses shall account for approximately 95 percent of the total land area within any area designated on the FLUM for this District. The remaining area may be utilized for related and compatible commercial uses. Commercial uses may occupy up to five percent of the total land area designated on the FLUM for this District. Commercial land uses shall be limited to collector and arterial road intersections, intersections of subdivision collectors and arterial or collector road, and areas that are specifically designated Commercial on the FLUM. Not more than 15 percent of the total frontage on both sides of a collector or arterial road shall be occupied by commercial uses within this district. The Walton County Land Development Code also defined general commercial activity as including inventory storage. The proposed sign’s location met the requirements for commercial use under the RV designation. Walton County certified to the Department that the designated parcel for the proposed outdoor advertising sign was Rural Village and that the primary use of the area under the current comprehensive plan was agriculture, general agriculture, residential, civic uses, and residential subdivision. Walton County also confirmed that the proposed outdoor advertising sign would be in compliance with all duly adopted local ordinances and would be issued the necessary County permit for such sign. The Walton County Property Appraiser’s website listed the usage of the proposed outdoor advertising sign location as a “service station.” The service station building was still on the property, but had not been used as such for a number of years. Billy Wayne Strickland, the state outdoor advertising administrator of the Department, processed the outdoor advertising permit applications submitted by Lamar. Mr. Strickland determined after a review of Lamar’s applications that the site, being designated as Rural Village with mixed uses allowed, met the need for evaluation under the use test for unzoned commercial or industrial areas contained in Chapter 479, Florida Statutes. The use test is set forth in Florida Statutes 479.02. Under the test, the Department examines a proposed sign’s location under the applicable current land use designation and future land use designation to determine if the outdoor advertising site meets the use criteria set forth in the statute for unzoned commercial and industrial areas. The use criteria for such unzoned property require that three commercial or industrial activities be located within 1600 feet of each other, with one of those activities located on the same side of the road and within 800 feet of the proposed sign’s location. Distances are measured from building to building. Additionally, the commercial or industrial activity must be visible from the highway. Mr. Strickland visited the property in order to determine if the proposed sign location met the requirements of the use test. He observed that the proposed sign’s site holds an abandoned-looking gas station and a house with a large fenced in area. Leaking fuel tanks made it unlikely the service station would be restored. There were several small, boarded-up, “fishing style cabins” associated with the fenced property. The fenced area had a sign posted for North Florida Development, Inc., a construction company. There was a number for the company listed on the sign. On a tree to the right of the fence was a sign that read “Private Road Keep Out.” In general, the area behind the fence appeared to be used for storage of building materials and equipment such as trucks and trailers. Except for the area behind the fence, the North Florida Development property was clearly visible from the highway. Mr. Strickland called the phone number on the sign and was informed that North Florida Development, Inc., that he was calling, was in Miramar Beach, Florida, and that North Florida Development was storing equipment and trucks at the U.S. Highway 331 location for a job they were doing in Destin. There was no one present at the house or the adjacent buildings. The North Florida Development buildings and fenced area were within 800 feet of the proposed sign’s location and were on the same side of the road as the proposed sign’s location. Because of the lack of activity, Mr. Strickland concluded that the North Florida Development property was not a commercial activity which was visible from the highway. On the opposite side of the Highway, Mr. Strickland observed two businesses within a 1600-foot zone that met the criteria of the use test. Additionally, while at the site, Mr. Strickland issued a Notice of Violation for the on-premises sign of North Florida Development. The Notice required the sign to be removed. Later, after the hearing in this matter, this action was dismissed by the Department. On November 29, 2006, the Department issued a written denial of the outdoor advertising sign site permit applications for the following reasons: (1) the sign site was not permitted under the local land use designation of site per Section 479.111(2), Florida Statutes, and (2) the sign site did not qualify as an unzoned commercial/industrial area per Section 479.01(23), Florida Statutes. On the morning of April 5, 2007, Mr. Strickland, again visited the proposed sign’s site. He observed essentially the same things he observed during his first visit to the location, except the large North Florida Development sign that had been on the entrance to the fenced area had been removed. Andrew White, a regional inspector with the Department, inspected the North Florida Development site on May 17, 2007, and photographed the area. The sign for North Florida Development had been removed, but the keep-out signs were still in place. Photographs taken from the street revealed a partial view of a storage trailer through the open fence. On the morning of June 6, 2007, just prior to the hearing, Mr. Strickland again visited the proposed sign’s location and observed no activity at the location. He could only see a trailer partially visible beyond the privacy fence. Larry Wayne Adkinson, vice president of North Florida Development and a general contractor licensed in Mississippi, lives and works on the property of the proposed sign’s location. Mr. Adkinson testified that the property totaled five and a-half or six acres and consisted of his home, his office, the service station and five fishing cabins. He and his business have been at this location for at least 12 years. Work has been delayed on repairing the service station based, in part, upon the fact that the state was seeking to condemn a portion of the property where the service station was located for the expansion of U.S. Highway 331. Mr. Adkinson uses the property as an inventory site, storing construction materials, heavy equipment, landscaping materials, and other bulk material related to his business. The site contained three semi-tractor trailers that were utilized to store construction materials, including doors, windows, and heavy equipment and equipment and materials for a landscape business owned by Mr. Adkinson. The landscape business stored tractor-trailers, small-equipment trailers, plants, brick pavers, scaffolding and rock molds. The site’s storage of inventory and business activity was very visible to people who lived in the neighborhood around the North Florida Development property. The visibility was such that, in 2006, the neighbors complained about the view to the County. The County, in turn, asked Mr. Adkinson to place a fence around the area to block the view of people passing through the area. Mr. Adkinson complied with the County’s request and built the privacy fence that Mr. Strickland observed. Mr. Adkinson also placed the company’s business sign on the fence to identify the property as North Florida Development’s business property. Most of the loading and unloading of material and equipment occurs in the early morning and evening hours. At those times, there is considerable activity at the site with trucks and equipment entering and leaving the property. Mr. Adkinson’s testimony was confirmed by the testimony of Chad Pickens, who routinely drives by the site during those hours. Mr. Strickland never visited the property during those busy hours, and therefore, did not observe the business activity associated with the site. Mr. Adkinson uses two of the fishing cabins as machine shops for his company’s equipment and tools. The shops contain drill presses, welding and repair equipment. Entry is gained through the rear doors of the cabins. He left the front of the cabins boarded up to prevent theft and storm damage. Mr. Adkinson also receives business mail at the U.S. Highway 331 location and has employees and job applicants report to that location. Clearly, the North Florida Development property is a viable and on-going business that conducts one of its business activities on the property on which the proposed sign is to be located. The activity is visible from the highway, although such activity ebbs and flows through the day. The property, therefore, meets the land use test requirements of Florida Statutes, and the Petitioner’s applications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Department of Transportation enter a Final Order granting the applications for outdoor advertising sign permits filed by Lamar Advertising of Fort Walton Beach. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2007. COMPLETE COPIES FURNISHED: Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James E. Moore, Esquire Post Office Box 1622 Crestview, Florida 32536 David M. Littlejohn, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Respondent, Empire Outdoor Advertising, Inc., is the owner of a sign located on the westbound or north side of Northwest 54th Street approximately 20 feet east of Northwest 12th Avenue, in Dade County, Florida. Northwest 54th Street is also designated as State Road 25A. The Respondent's sign is a structure or billboard designed to advertise or inform, and its copy is visible from the main traveled way of the adjacent roadway of State Road 25A or Northwest 54th Street. At the site where the Respondent's sign is located, State Road 25A or Northwest 54th Street is a part of the federal- aid primary highway system, and this roadway is open to the public for vehicular traffic. The Respondent's sign is located within 660 feet from the nearest edge of the pavement of State Road 25A. The Respondent's sign is situated within 500 feet from another outdoor advertising structure on the same side of the highway. These two signs face in the same direction and are both visible to westbound traffic on the north side of State Road 25A or Northwest 54th Street. The Respondent's sign has affixed to it copy which advertises Kraft Barbecue Sauce. This structure does not fall within any of the exceptions to the statutory licensing requirements set forth in Section 479.16, Florida Statutes, and it must have a state sign permit. The Respondent has not applied for an outdoor advertising permit from the Department, and no such permit has been issued by the Department for the subject sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order finding the Respondent's sign which is the subject of this proceeding to be in violation of the applicable statutes and rules, and ordering its removal. THIS RECOMMENDED ORDER entered this 25th day of January, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 L. Martin Reeder, Jr., Esquire Post Office Box 2637 Palm Beach, Florida 33480
The Issue Whether the Respondent is in violation of Chapter 479, Florida Statutes, for having no identification on the sign, no valid lease for the sign and no current permit tag.
Findings Of Fact A violation notice was issued to the Respondent, Peterson Outdoor Advertising Company, on June 18, 1976, citing a sign located at .23 miles south of John's Road on U.S. 1, with copy "TOBYS". The violation not ice stated that the Respendent was to violation of Section 479.07(4), Florida Statutes, with no current tag, with the lust tag being 1971; Section 479.07(7), Florida Statutes, with no identifier; Section 479.13, Florida Statutes, with no valid lease. The latest permit tag affixed to the sign is dated 1971. A photograph of the sign taken on the 20th of April, 1977, showed that there was no identifier on the sign. An identifier is the imprint showing the owner of the sign. Subsequent to the taking of the photograph, an identifier was added to the sign showing the Respondent as owner. The Respondent entered into evidence an application for outdoor advertising permit dated March 2, 1977. A sign lease agreement was entered into evidence by the Respondent dated the 15th day of February, 1977, alleged to be a lease agreement from the Florida Conference Association of Seventh Day Adventists for a lease for a term of five years beginning January 1, 1973 and expiring December 31, 1977, for the subject billboard sign. There was confusion as to the ownership of the sign and the sign stood without permit tags subsequent to 1971. No application for permitting of the sign was made until the Respondent made an application for a permit as indicated in the foregoing findings of fact in 1977. The proposed Recommended Order of the Respondent has been considered in the preparation of this order.
Recommendation Remove the subject sign inasmuch as the sign is illegal and in violation of Chapter 479, Florida Statutes. DONE and ORDERED this 22nd day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32789
