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 outdoor advertising sign which is the subject of this proceeding has been erected on a small parcel of land located approximately one-quarter of a mile west of First Street on Rockland Key, next to the southbound lane of U.S. 1, in Monroe County, Florida. This location is outside the city limits of any municipality. On approximately October 1, 1983, Mr. Frank Toppino, who is not a party to this proceeding and who was not presented as a witness at the hearing, leased the subject property to the Pier House Inn and Beach Club for one year. Under the terms of this lease, the Pier House Inn received the right to use the property for an outdoor advertising structure which the parties to the lease contemplated would be constructed there. The Pier House agreed to pay the sum of $950 to Mr. Toppino as rent for the year. In addition, the Pier House agreed to undertake construction of the sign on the land for the benefit of Mr. Toppino, the lessor, after the lease expires. The PIER House received the right to use this land for one year, and the right to place advertising copy of its choice on the face of the outdoor advertising structure for one year. The lease between Mr. Toppino and the Pier House Inn covering the subject property was received in evidence. This lease, and the testimony of the general manager of the Pier House Inn who executed it as lessee, which is detailed above, supports a finding of fact that Mr. Frank Toppino and not the Pier House was the owner of the outdoor advertising structure which is the subject of this proceeding on October 1, 1983. Subsequently, when the Department's Outdoor Advertising Administrator made his inspection of the subject sign, there was no state outdoor advertising permit affixed thereto, and the Department has not issued any permit for this structure. The sign was erected between two other permitted signs, and it is closer than 500 feet to both of these existing and permitted structures. The sign which is the subject of this proceeding is located adjacent to a federal- aid primary highway outside any incorporated city or town. It is visible from U.S. 1, and it is within 660 feet of the edge of the pavement of this highway. The Department's Outdoor Advertising Administrator made a determination that the Pier House Inn was the owner of the sign in question based upon information contained in a Monroe County Building Permit application, and based upon the hearsay information received during telephone conversations. However, this information is controverted by the direct testimony of the general manager of the Pier House Inn which is itself corroborated by the lease between Mr. Toppino and the Pier House which is in evidence. Thus, the testimony received from the Department's witness is not of sufficient quality to support a finding of fact that the Pier House Inn is the owner of the sign in question. Moreover, the Department has the burden of proof on this issue, and the quantity and quality of the evidence presented on the matter of ownership of the subject sign does not carry this burden.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the violation notice issued on December 12, 1983, to the Pier House Inn and Beach Club, be dismissed, without prejudice to the reinstitution of proceedings in which the violation notice is directed to the actual owner of the sign in question. THIS RECOMMENDED ORDER entered this 23rd day of August, 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 23rd day of August, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
The Issue Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner. Whether the subject signs should be removed. Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.
Findings Of Fact Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within 147 feet of the right-of-way of Interstate 95. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this proceeding, controlled the activities of Respondent. Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/ Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of February, 2001.
The Issue The issue in this case is whether Petitioner’s Outdoor Advertising Permit Applications should be denied due to application deficiencies, and because the signs are located adjacent to a designated scenic highway.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the state highway system, interstate highway system, and federal-aid primary highway system. U.S. Highway 1 is a federal-aid primary highway that runs in a generally north/south direction along the east coast of Florida. In April l995, the Department issued outdoor advertising sign permit tag number BK459 to Town & Country Realty for an outdoor advertising sign (the “original sign”). The original sign was constructed adjacent to and on the west side of U.S. Highway 1 in Sebastian, Florida (the “property”). Records maintained by the Department during the period of the original sign’s existence, i.e., the Department’s outdoor advertising database from July 31, 2002, indicate that the original sign was located at U.S. Highway 1 milepost 18.496. That evidence, created contemporaneously with the sign’s existence, and before any controversy regarding the sign arose, is accepted as the most persuasive evidence of the precise location of the original sign. Mr. Pye testified that outdoor advertising sign permits are issued for a specific location, rather than for any location on a parcel of property. Given the precise spacing requirements for signs (see, e.g., section 479.07(9) and section 479.11), and the permitting of signs to the thousandths of a mile, Mr. Pye’s testimony is accepted. The original sign was located against a backdrop of vegetation. The original sign was single-sided with a north- facing sign face. As such, the original sign could normally be seen only from vehicles traveling southbound on U.S. Highway 1. On June 13, 2000, U.S. Highway 1, from milepost 14.267 to milepost 22.269 was designated as the Indian River Lagoon State Scenic Highway. The scenic highway designation included the stretch of U.S. Highway 1 on which the property fronts. On March 18, 2004, Henry Fischer & Sons, Inc./Town & Country Realty sold the property and the original sign to Petitioner. Daniel Taylor, a licensed real estate broker, worked on the transaction that led to Petitioner’s ownership of the property. He indicated that the property was desirable because it was clean, cleared, and demucked, and because it had the permitted original sign as an attractive asset, since the sign provided an income stream that could be used to pay property taxes. Eric Fischer, who was a director of Town & Country Realty, testified that, when the property was sold to Petitioner, the original sign was intended “to go with the property.” Upon the sale of the property and the original sign, Petitioner believed that Town & Country Realty would notify the state of the sale of the sign, and that he would thereafter be contacted by the state. Mr. Taylor testified that he and Petitioner called the Department and determined that Petitioner “could just step into the Fischer's shoes.” Based on the testimony of Petitioner and Mr. Taylor, Petitioner knew, or should have known, that the Department had regulatory oversight over the sign. An Outdoor Advertising Permit Transfer Request form is required to be submitted to the Department in order to transfer a sign permit from one person to another. No Outdoor Advertising Permit Transfer Request form was submitted for permit tag number BK459. Petitioner was never contacted by the state regarding the sale of the sign. Nonetheless, Petitioner continued to lease the sign and, as detailed herein, to replace and move the sign after the hurricanes of 2004. In September and October 2004, Hurricanes Frances and Jeanne struck Sebastian, Florida, very badly damaging the original sign. The wooden supports were flattened and no longer usable, and the sign was “pretty demolished.” Petitioner testified that he was told by an official of Indian River County to relocate the original sign to keep it from proximity of trees that could, in the event of a recurrence of the 2004 storms, topple and destroy the sign. The testimony, which was intended to prove the truth of the matter asserted, i.e., that Petitioner was directed by a governmental representative to relocate the sign, was uncorroborated by evidence that would be admissible over objection in a civil trial. Petitioner hired a person to rebuild a sign on the property. When the sign was rebuilt, it was not replaced at its original location at milepost 18.496. Rather, the “rebuilt sign”1/ was moved to the cleared center of the property at milepost 18.535. Instead of a single-faced sign normally visible to northbound traffic, the rebuilt sign was a double-faced sign, with sides facing north and south. As such, the rebuilt sign could be seen by vehicles traveling U.S. Highway 1 in either direction. The original sign had four equally-spaced square support posts. The rebuilt sign has three equally-spaced round, and more substantial, support poles. The rebuilt sign has 11 horizontal stringers on each face, with each stringer secured to the three support posts. The stringers are uniform in appearance. The photographs of the rebuilt sign clearly show all of the stringers on one side, and some of the stringers on the other. The stringers show no evidence of having undergone storm damage, or of having been secured to support posts at different points along the stringers. The preponderance of the evidence supports a finding that the stringers were -- as were the posts -- new, stronger, intact materials when the rebuilt sign was constructed, and were not materials salvaged from the remains of the original sign. The original plywood facing on the original sign was replaced with vinyl facings on the rebuilt sign. As a result of the foregoing, a preponderance of the evidence indicates that the rebuilt sign was a new sign erected of entirely new materials, and was not established as a result of maintenance or repair of the original sign. After the March 18, 2004, sale of the property and the post-hurricane erection of the rebuilt sign, Town & Country Realty continued to receive renewal billing from the Department for the original sign, along with several other signs owned by Town & Country Realty. Town & Country Realty, having sold the property on which the original sign was located and having no apparent interest in maintaining its other signs, did not pay the renewal bills. On January 31, 2005, the Department issued a Notice of Violation and Order to Show Cause Non-Payment (“NOV”) to Town & Country Realty. The NOV provided a grace period of 30 days within which the license and permits could be renewed, subject to a penalty. Town & Country Realty did not renew the license or permits. On March 7, 2005, the Department issued a Final Notice of Sign Removal, noting that Town & Country Realty had not made payment for renewal or request an administrative hearing to contest the NOV. As a result, Town & Country Realty was given the option of either petitioning for reinstatement of the license and permits, or removing the signs, including the sign bearing permit tag number BK459. Failure to exercise one of the options within 90 days was to result in the removal and disposal of the sign by the Department. On March 22, 2005, as a result of the continued requests for payment, Town & Country Realty submitted an Outdoor Advertising Permit Cancellation Certification form (“Cancellation Certification”) to the Department for permit tag number BK459. The Cancellation Certification was received by the Department on March 24, 2005. The Cancellation Certification was signed by Carl Fischer, president of the permit holder, Town & Country Realty. Mr. Fischer indicated that it was the permit holder’s intent “that the above-referenced Permit(s) be cancelled,” and that “all entities with a right to advertise on the referenced sign have been notified of the permit cancellation.” In the “Date Sign Removed” field of the form, Mr. Fisher wrote “see below.” In the bottom margin of the form, Mr. Fischer noted that the sign had been destroyed by one of the 2004 hurricanes, and that “new owner rebuilt sign and I removed BK459 tag and enclosed it.” The Cancellation Certification did not provide any information regarding the rebuilt sign or whether it was a sign that required a permit from the Department,2/ nor did it provide the name, address, or other identifying information regarding the “new owner.” It was not clear when Mr. Fischer removed permit tag number BK459, but it was nonetheless removed and returned to the Department with the Cancellation Certification. The Cancellation Certification was not intended by Mr. Fischer to affect Petitioner’s rights or interest in the rebuilt sign, but was a means of stopping renewal bills from being sent to Town & Country Realty. A Cancellation Certification may be conditioned upon issuance of a new sign permit, provided the Cancellation Certification is submitted along with an outdoor advertising permit application. The Cancellation Certification gave no indication that permit tag number BK459 was being conditionally canceled as a requirement for issuance of a new permit, and was not accompanied by an outdoor advertising permit application. On March 24, 2005, permit tag number BK459 was cancelled. From 2005 until June 2014, the rebuilt sign remained in place without inquiry from the Department, during which time Petitioner continued to lease and receive income from the sign. No transfer of or application for a sign permit for the rebuilt sign was filed, and no payment of annual fees was made. No explanation was provided as to why the March 7, 2005, Final Notice of Sign Removal was not enforced, or why the rebuilt sign, which has at all times been clearly visible from U.S. Highway 1, was allowed to remain in place for nearly a decade despite having no affixed permit tag. On or about May 28, 2014, Mr. Johnson, who was on patrol in the area, noticed that the advertising on the rebuilt sign had been changed. The change caught his attention, so he reviewed the Department’s outdoor advertising sign database to determine whether the sign was permitted. He confirmed that the rebuilt sign was not permitted. On June 5, 2014, Mr. Johnson affixed a “30-day green notice” to the rebuilt sign, which provided notice of the Department’s determination that the sign was illegal, and was to be removed within 30 days. Failure to remove the sign was to result in the removal of the sign by the Department. On June 9, 2014, the Department issued a Notice of Violation - Illegally Erected Sign (NOV) to Petitioner for the rebuilt sign. Petitioner did not submit a hearing request regarding the NOV. Rather, Petitioner called the telephone number that was listed on the NOV. He spoke with someone at the Department, though he could not remember who he spoke with. Petitioner was advised to file an application for the sign, a remedy that is described in the NOV. On December 1, 2014, Petitioner submitted Outdoor Advertising Permit Application Nos. 61203 and 61204 for the northward and southward faces of the Current Sign at milepost 18.535. Petitioner subsequently submitted additional information, including local government approval, in support of the application. On December 18, 2014, the Department issued a Notice of Denied Outdoor Advertising Permit Application for application Nos. 61203 and 61204 (“notice of denial”) to Petitioner. The bases for the notice of denial were that the property’s tax identification numbers submitted in various parts of the application did not match, thus constituting “incorrect information” in the application, and that the rebuilt sign is located on a designated scenic highway, thus prohibiting issuance of the permit. In the Pre-hearing Stipulation filed by the parties, the Department, though referencing “incorrect information” as a basis for the December 18, 2014, notice of denial, concluded its statement of position by stating that “[i]n sum, the Department properly denied [Petitioner’s application] as the sign is located on a scenic highway.” That focus on the scenic highway issue in the Pre-hearing Stipulation could, of itself, constitute a waiver and elimination of other issues, including that of incorrect information. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). However, looking beyond the Pre-hearing Stipulation, the issue of incorrect information was not the subject of testimony at the final hearing, finds no substantial support in the documentary evidence, and made no appearance in the Department’s Proposed Recommended Order. The record in this proceeding does not support a finding that Petitioner provided “incorrect information” in his application, or that such “incorrect information” supports a denial of the application. On February 12, 2015, Petitioner filed a request for an informal administrative hearing with the Department to contest the notice of denial. The request for hearing included affidavits from Petitioner and Henry A. Fischer, a vice-president of Town & Country Realty, each of which provided that Town & Country Realty “submitted to the governmental authorities included but not limited to the Florida Department of Transportation notice of the transfer of the property and the sign permit to Mr. Daddano as well as his correct mailing address of 15 Lakeside Lane, N. Barrington, IL 60010.” It is not known whether the N. Barrington, Illinois, address was that of Mr. Fischer or that of Petitioner. Regardless, no such notice of transfer, or any other document bearing the referenced address, was introduced in evidence or discussed at the final hearing. The preponderance of the evidence indicates that the March 22, 2005, Outdoor Advertising Permit Cancellation Certification, with the notation described in paragraph 30 above, was the only notice provided to the Department regarding the disposition of permit tag number BK459. By June 4, 2015, the advertising copy that caught Mr. Johnson’s attention had been removed and replaced with a “This Sign For Rent” covering. By no later than November 17, 2015, well after the Department issued the notice of denial, and without any other form of approval or authorization from the Department, Petitioner had the rebuilt sign “pivoted” in roughly its existing location, so that it is now parallel to U.S. Highway 1. As such, only the side of the sign facing U.S. Highway 1 is visible from the highway, making it a “one-way reader” as opposed to a two-sided sign. Nonetheless, unlike the original one-sided sign, which was perpendicular to the highway against a backdrop of vegetation, the pivoted rebuilt sign can be seen by traffic traveling in either direction on U.S. Highway 1.3/
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order denying Outdoor Advertising Permit Application Nos. 61203 and 61204. DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 27th day of April, 2016.
Findings Of Fact On January 27, 1982, the department of Transportation notified the Petitioner, Vortex Springs, Inc., that its applications for the outdoor advertising sign permits which are the subject of these proceedings were denied because the zoning had been determined to be unacceptable. These applications seek permits authorizing two signs on I-10 in Holmes County, Florida, one approximately 1.38 miles west of SR 81 facing west, and the other approximately 1.1 miles east of SR 81 facing east. Both of these locations are inside the city limits of the municipality of Ponce de Leon, Florida. The signs for which the Petitioner seeks permits were already erected when the subject applications were submitted to the department. There was no other evidence presented that was relevant or would support additional findings of fact.
Findings Of Fact In mid-1983 National had a properly permitted outdoor advertising structure bearing tag numbers AD-016-10 (south-facing sign) and AD-018-10 (north-facing sign) on the east side of U.S. 27 on leased property in Highlands County. In the latter part of 1983 this property was purchased by Young. On September 15, 1983, Young notified National that he was the owner of the property on which this sign was located and requested National to remove the sign. On September 16, 1983, Young applied for a permit to erect an outdoor advertising sign at this location. Young's application was disapproved by DOT on November 7, 1983, because DOT's records showed this to be a site occupied by a permitted sign (Exhibit 3). On or about October 26, 1983, after having received no response from National to his request for National to remove the sign, Young cut down the sign by sawing its supporting posts. On November 28, 1983, Young requested a hearing on the denial by DOT of his application for a permit for a sign at this site. On November 3, 1983, National obtained a lease (Exhibit 2) on property abutting Young's property and, on or about November 4, 1983, erected a sign on this property using the same faces from the fallen sign and attached the tags issued for its original sign. National's original lease dated 10/13/80 (Exhibit 1) with John Larino provided that either party could terminate the agreement on thirty days' notice. When Young purchased the property from Larino, he complied with the lease provisions regarding termination of the lease, including rebating the rent for the unused portion of the lease. Young erected a sign on this property on November 6, 1983, before his application had been denied and two days after National had re-erected its sign. Young obtained a county building permit on September 16, 1983, for the sign he subsequently erected. National has not applied for permit for the structure erected on the land leased from Boyd but attached permit tags AD-016-10 and AD-018-10 to the sign. The juxtaposition of the signs is as follows: proceeding north on U.S. 27, the first sign is owned by Young, next is the site of the former National sign, and then National's new sign. All of these locations are on the east side of U.S. 27, are less than 1,000 feet from a permitted sign to the south, are more than 500 feet from the sign, and all are within 180 feet of each other. When an applicant applies for a permit for a new sign, the site is inspected by a member of the Outdoor Advertising staff in the DOT district where the sign is to be located in company with the application, or the site is staked out by the applicant and viewed by a staff member. This inspection is to ascertain that the proposed sign will be located the required minimum distance from an existing sign and the proper distance from the roadway from which the sign will primarily be observed. DOT'S policy is that any relocation of the sign from the authorized location constitutes a new sign and requires the submission of a new application and approval therefor. The approved application for National's original sign was on U.S. 27 2.9 miles north of "Junction 17-Sebring." This location is on the property now owned by Young.
The Issue Whether an application for an outdoor advertising permit for a sign in Santa Rosa County should be granted or denied.
Findings Of Fact The Department of Transportation is the state agency responsible for the regulation of outdoor advertising signs that are located on all federal-aid primary highways. U.S. Highway 90 (U.S. 90) is a federal-aid primary highway. A permit is required prior to erecting an outdoor advertising sign on all federal-aid primary highways. Southeast- SD, LLC (Southeast) filed an application for an outdoor advertising permit, application # 57549/57550 (the application) on June 29, 2009. Southeast's proposed sign structure meets the size and height requirements of section 479.07. The parcel was commercially zoned in accordance with the provisions of section 479.11, Florida Statutes. Southeast's application site is located on U.S. 90 at milepost 3.118, approximately 550 feet east of the centerline of Woodbine Road. The Department denied Southeast's application and issued a Notice of Denied Outdoor Application (initial denial) on July 29, 2009. The reason stated in the initial denial was: Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP). [s. 479.07(9)(a),1.,& 2. F.S.] In conflict with permitted sign(s), tag#(s): CC479. Held by: Bill Salter Advertising, Inc. Bill Salter Advertising, Inc. (Salter's) sign with tag CC479 was located on U.S. 90 less than 500 feet from the application site. Permit CC479 was the subject of a Department revocation proceeding.2/ On March 8, 2010, the Department issued a Clerk's Order of Dismissal on the challenge to the revocation of CC479. Thus, the revocation of the conflicting sign, CC479, was final on March 8, 2010. On August 16, 2010, the Department issued an Amended Notice of Denied Application (Amended Notice). In the Amended Notice, the Department gave a different reason for the denial. The reason given in the Amended Denial concerned a different Salter tag: Sign does not meet spacing requirements (1500' for interstates, 1000' for EAP). [s. 470.07(9)(a),1., & 2. FS] In conflict with permitted sign(s): CF793. Held by: Bill Salter Advertising, Inc." CF793 was originally permitted in 1978. At that time, an application for a sign permit was reviewed and notated by the Department, and became the actual permit. The application for CF793 contains information that is type-written on the application form, presumably by the applicant, Salter. In the portion of the application form stating "DOT DESCRIPTION OF SIGN LOCATION (DOT USE ONLY)" the following is hand-written: "Sect. 59 W- 39.95 Miles W-SR 85." Most of the application/permit was filled out by the applicant, and part of it was filled out by the Department. In 1996, the Florida Legislature amended section 479.02, directing the Department to inventory and determine the location of all signs on the state, interstate, and federal-aid primary highway systems. The Department conducted the inventory and, upon completion, sent the database information to each sign owner, giving each owner an opportunity to challenge the accuracy of the results. Salter did not file such a challenge regarding CF793. As of July 30, 2009 (the date of the initial denial), tag CF793 was shown at milepost 13.205 on U.S. 90, in a location approximately 13 miles away from the application site in the Department's database created pursuant to section 479.02(8). Tag CF793 was physically located 13 miles away from its originally permitted location. The Department acknowledges that tag CF793 was not valid in its location 13 miles away from its current location, where it was located from at least 1998 to 2010. The database reflected milepost 13.205 as the location for CF793 from 1998 until 2010. In 2004, the Department sent Salter a Notice of Non- Compliance demanding that Salter post tag CF793 at milepost 13.205. In October 2009, the Department received a letter from Salter regarding moving CF793 to the location specified in the 1978 permit. At this point, the Department investigated the original application and discovered a "huge discrepancy" between the database location and the permit location in the Department's files. The Department has no documentation regarding how tag CF793 came to be located at milepost 13.205 since the 1998 inventory. The Department decided that its database was incorrect and that it needed to be corrected. On February 1, 2010, the Department changed its database to reflect the location for CF793 as milepost 2.993 on U.S. 90. Salter posted the tag for CF793 at its current location sometime after March 22, 2010 and prior to May 3, 2010. Once Salter placed the tag for CF793, the database was changed again to reflect the physical tag location at milepost 2.950 on U.S. 90, the "current location." The Department hired Cardno TBE, an engineering firm, to conduct field work. An inspector performed field measurements on May 3, 2010, using the wheel and laser methods for field measurement. The inspector identified the stake that was in the ground on Southeast's proposed sign site. He measured along the edge of the pavement on U.S. 90 from the location marked by Southeast to the new location of Salter's CF793 tag. The inspector determined that the distance between the proposed site and the nearest permitted sign, CF793, is 890 feet. Based upon these findings, the Department then determined that Southeast's proposed sign did not meet the 1000- foot spacing requirement. By letter dated May 27, 2010, the Department notified Salter that the location of CF793 was "nonconforming" and that pursuant to Florida Administrative Code Rule 14-10.007, a completed sign must be erected within 270 days or the permit would be revoked. No sign has been built, and the permit has not been revoked. Moreover, it appears that a sign will never be built, as the Department is in possession of correspondence from Santa Rosa County to Salter indicating that a sign cannot be constructed at the current location of tag CF793 due to conflict with several local ordinances. Also on May 27, 2010, the Department sent a letter to Southeast stating that CF793 "now presents a spacing conflict" with Southeast's application location. The letter further states that the Department had advised Salter that a completed sign must be erected within 270 days and that if no sign is erected within that time frame, the permit would be revoked. On August 16, 2010, three months later, the Department amended its denial as set forth above in paragraph 8. Just prior to the hearing, the Department again sent the inspector to conduct another field measurement. This time, the inspector relied upon information regarding the location of the sign from the original application/permit that was provided by the applicant (Salter) in 1978. That is, the inspector measured from a location described by the applicant in the original permit application, then measured the distance from the location to Southeast's proposed site, and determined the distance to be 884 feet. In making these measurements, the inspector assumed that the nearest intersection in 1978 was in the same location as today, that the original measurer started the measurement from the centerline of that intersection, and that the distance from the nearest intersection indicated by Salter on the original application/permit was measured with the same accuracy as a hand-wheel or laser.3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Transportation enter a final order approving Southeast's sign permit application. DONE AND ENTERED this 21st day of February, 2011, in Tallahassee, Leon County, Florida. S Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2011.
Findings Of Fact The 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.
