The Issue The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.
Findings Of Fact The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads: The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981. The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue. On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996. On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996. By letter dated August 30, 1994, the City advised Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996. As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995. Stipulation of Fact #2 reads: State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19. The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding. Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60). On May 22, 1974, State Road 60 was designated a Federal- Aid Primary. On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban. Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981. On or about October 1, 1981, Allan J. Stowell was issued state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality. State Road 60 became a part of the national highway system on November 25, 1995. Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state. Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor. Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business. Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating he was delinquent in certain costs and fees for the permits. When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current. The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable. When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981. After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994. After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions. After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997. Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government will issue a permit upon approval of the application by the Department. Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form. On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the property on which it is located in his application. One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years. Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997. The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign. Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute. When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.” There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application. The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve. Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner permits for the maintenance of the signs in issue, and denying compensation for their removal. DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998. COPIES FURNISHED: Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
The Issue The issues in this case are whether there was a structural change in Petitioner's sign, and whether the Department of Transportation's Notice of Intent to Revoke Sign Permit for violating Florida Administrative Code Rule 14-10.007(2) should be affirmed.
Findings Of Fact Lamar is a company which owns and maintains hundreds of road-side signs or billboards within the State of Florida. One such billboard (referred to hereinafter as the "Sign") is located on U.S. Highway 27 approximately eight-tenths of a mile south of Highway 17-92, just south of Haines City in Polk County. The Sign is assigned Tag No. BH378. The Sign was purchased by Lamar from Prime Outdoor in December 2004. At the time it was purchased, the Sign was a single-faced, wooden structure. When the Sign was originally constructed (in the late 1960's), the supports for the Sign were made of one and one-half by one and one-half (1 1/2 x 1 1/2)-inch angle iron. The DOT database indicates the Sign was constructed as a steel, single- faced structure. Pictures of the Sign as it appeared in 1997 show the steel A-frame construction of the supports. When Lamar decided to purchase the Sign, its real estate leasing manager (David Henry) investigated the status of the Sign. Henry accessed the DOT website to determine the status of the Sign. He also physically inspected the Sign to see whether it was in compliance with state and local regulations. His findings were that DOT records showed the Sign to be made of steel construction, but his visual inspection revealed wooden support posts in place of the steel A-frame construction. Henry knew the Sign had been damaged during the 2004 hurricane season. The Sign had been rebuilt by the time Lamar purchased it in December of that year. The Sign was reportedly rebuilt as part of a global settlement between DOT and the various sign companies whose properties had been similarly damaged during the storms; however, the settlement agreement authorizing reconstruction was not signed until February 2005.1 Inasmuch as Lamar owned another sign nearby, Henry was aware of what the Sign looked like both before and after the hurricanes had damaged it. At the time of the purchase, Lamar was not aware of any actions being taken by DOT due to alleged violations concerning the Sign. Notice of a violation was not issued until 2006. The basis of DOT's proposed revocation was that the Sign had been modified in violation of Florida Administrative Code Rule 14-10.007(2) by: (1) changing structural materials from steel to wood and (2) changing the Height Above Ground Level of the Sign. The second basis for revocation was withdrawn before final hearing, and only the first basis is at issue. There is no dispute that the Sign was originally constructed with a steel A-frame design for its supports but was re-constructed with wooden poles as its support. The A-frame construction was not utilized during re- construction for two reasons: First, the angle iron used in the original construction is no longer available. The A-frame design was borne of technology from the early 1960's and has proven inferior to new design and materials. Second, the A- frame design would not meet the wind-resistance requirements extant in today's world. The Notice filed by DOT directed Lamar to provide information to DOT within 30 days as to whether (1) Lamar believed the Notice was issued in error or (2) the violation had been corrected. Lamar did not respond concerning either of the two alternatives. The Notice provided it would become final in 30 days unless Lamar responded as set forth above or contested the revocation by way of an administrative hearing.2 Lamar availed itself of the Chapter 120, Florida Statutes, option and filed a Petition for Formal Administrative Hearing. In the de novo final hearing, Lamar presented its rationale as to why the Notice was issued in error, i.e., that Lamar was allowed to change the supports in order to comply with local and state building codes. The post-2004 hurricane season settlement agreement entered into by DOT and Lamar allowed reconstruction of signs damaged by that year's storms. The agreement specifically states, "Exceptions to pre-storm specifications will be allowed to the extent required to comply with local building codes." The angle iron construction of the Sign would not, according to Lamar's witness, meet current wind-storm requirements in the local building code. However, the building code itself was not offered into evidence, and the sole witness presented by Lamar was not offered as an expert to testify concerning the building code.3 DOT provided examples of how certain metal supports could have been utilized in place of the old, outdated metal A- frame used in the original design. That is, wood was not the only alternative available to Lamar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation revoking the Permit No. 7478 for Tag No. BH378 and requiring removal of the Sign within 30 days. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 26th day of March, 2008.
The Issue Whether the Department of Transportation (hereinafter "Petitioner") properly issued Notices of Violation to Respondent as alleged in Notice Numbers 09 BU720, 09 BU721, 09 BU723, 09 BU724, 09 BU726, and 09 BQ032 for outdoor advertising billboard structures located adjacent to US 1 and I-95 in Brevard County, Florida. Specifically at issue is whether Respondent's outdoor advertising signs: (1) were removed from the locations for which they were permitted and re-erected at the same locations; (2) are nonconforming and cannot be relocated; were destroyed by an act of God; and (4) are destroyed nonconforming signs which cannot be re-erected (the signs have been re-erected), all in violation of Rule 14-10.007, Florida Administrative Code.
Findings Of Fact Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation ("Respondent"), owns and maintains four off- premise outdoor advertising signs located along Interstate 95 in Brevard County, Florida. Respondent also owns and maintains two off-premise outdoor advertising signs located along U.S. Highway 1 in Brevard County, Florida. These six off-premise outdoor advertising signs are generally hereinafter referred to as the "signs." Outdoor advertising is a lawfully recognized business which is regulated under the provisions of Chapter 479, Florida Statutes, by Petitioner. Respondent is licensed by Petitioner in the business of outdoor advertising. The Division of Forestry of the Department of Agriculture and Consumer Services ("DOF") is governed by Chapter 590, Florida Statutes, and is responsible for fire protection, fire control, and land management. DOF is charged with the protection of life, property, and natural resources. Petitioner classified the signs as "non-conforming" outdoor advertising signs at all times relevant to this proceeding. The six signs were maintained under the following Department of Transportation ("Department") sign permit tag numbers and were located as follows at all times relevant to this proceeding, each within 660 feet of the first named highway or interstate and each within Brevard County, Florida. Sign Permit # Location BQ 032-55 West of Interstate 95, 3.725 miles north of NEB700136/060 State Road 46 BU 726-55 West of Interstate 95, 1.572 miles north of NEB700138/066 Aurantia Road BU 723-55 West of U.S. Highway 1, 0.324 miles north of County Road 5A BU 724-55 West of U.S. Highway 1, 0.339 miles north of County Road 5A BU 721-55 West of Interstate 95, 3.601 miles north of NEB700136/060 State Road 46 BU 720-55 West of Interstate 95, 3.667 miles north of NEB700136/060 State Road Each of the signs was lawfully permitted by Petitioner at the described location during the relevant time period. Each of the six signs was used for leasing advertising space to third parties and each individually generated income to Respondent. The signs located along Interstate 95 were erected in 1971 and the signs located along U.S. Highway 1 were erected in 1964. The signs located along Interstate 95 were located less than 1,000 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department. Each of the signs located along U.S. Highway 1 was located less than 500 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department. None of the signs were located in an area designated for commercial or industrial use. Interstate 95 is an interstate highway and U.S. Highway 1 is a federal primary highway. The upright supports of each of the six signs were wood, and such signs are structures. In June and July of 1998, an extensive wildfire burned in the area of Brevard County located generally north of State Road 46. During the evening of June 26, 1998, a thunderstorm passed through the area of Brevard County west of the signs. The weather conditions at that time were extremely dry. An event constituting an act of God is any sudden manifestation of the forces of nature without human intervention. The best evidence for the cause of the fire is that lightning during the storm started two wildfires in remote areas west of the signs. The fires were identified by DOF as the Freshwater and Break 5 (or Break 10) fires. Each fire initially spread west. DOF began efforts to combat the Freshwater Fire and the Break 5 fire on June 27, 1998. However, the fires expanded as a result of weather conditions. Because of the hot, dry weather conditions and erratic winds, and despite the continuing efforts of DOF, the fires continued to expand and burned together on June 29, 1998. The combined fires were referred to as the Farmington Fire. On the evening of June 30, 1998, rapid winds from the west caused the Farmington Fire to expand and travel to the east and northeast. As the fire continued to rapidly expand on July 1, 1998, DOF determined that it was unsafe to locate firefighting equipment in the path of the fire. On or about July 1, 1998, the Farmington Fire burned through the area where the signs that Respondent maintained under sign numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55 were located. On or about July 2, 1998, the Farmington Fire burned through the area where the sign that Respondent maintained under sign permit number BU 726-55 was located. On or about July 1, 1998, the Farmington Fire substantially burned all of the upright supports of each of the signs that Respondent maintained under sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55. On or about July 2, 1998, the Farmington Fire substantially burned all of the upright supports of the sign that Respondent maintained under sign permit number BU 726-55. None of the six signs was struck by lightning prior to their destruction. The Farmington Fire spread through the areas where the six signs were located as a result of drought conditions and weather factors. Interstate 95 and U.S. Highway 1 were closed to the public before the signs were destroyed. Respondents attempted to access each of the six signs but could not reach the signs because of road closures by governmental authorities. A burnout is a way of fighting a fire wherein fire is deliberately set and used in a countering measure to burn the fuel in front of a wildfire. The purpose of a burnout is to establish control over a wildfire by eliminating fuel in the existing fire's path. If a burnout is unsuccessful, more strength is added to the wildfire because the wildfire has gained momentum. It is possible for a prescribed burn to become a wildfire. DOF set a fire to "burn out" an area of land involved in the Farmington Farm on the evening of June 28, 1998. This "burnout" fire was set by Ranger Weis in his capacity as an employee of DOF. The fire continued to travel after the burnouts were conducted. The burnout did not contribute to the spread of the Farmington Fire, but temporarily helped to impede the it. The Farmington Fire spread over 5,000 to 6,000 acres. Approximately 200 firefighters were involved in fighting the Farmington Fire. Bulldozers, fire engines, helicopters, retardant, and tankers were used in the firefighting efforts. Many homes, businesses, and other property in the area of the Farmington Fire were saved from fire damage. Some were not saved. The only fire in the area of the Farmington Fire that was set by someone other than Ranger Weis did not contribute to the spread of the Farmington Fire or burn the signs. The Farmington Fire was contained on July 2, 1998. If the same measures that had been used to protect other property from damage had been used on the billboards, the billboards could possibly have been saved from fire damage. The measures that were taken on homes, businesses, and other structures to protect them from fire damage were not used around the subject signs. The steps taken by DOF and firefighting crews to save homes and businesses included creating defensible space around the structures by clearing vegetation and spraying the structures with water. House Bill 1535, which contains amendments to Chapter 590, Florida Statutes, allows for nonconforming buildings, houses, businesses, or other appurtenances to property destroyed by the wildfires of June and July 1998 to be re-erected in kind. House Bill 1535 (Section 24 to revised Chapter 590, Florida Statutes) is applicable to Respondent's signs because each sign constitutes a business which, on its own, would require a state license under Chapter 479, Florida Statutes, and which individually generates advertising revenue. Nonconforming signs destroyed by vandalism or tortious acts may be re-erected in kind. The term "tortious acts" is not defined in Chapter 479, Florida Statutes, or in Chapter 14-10, Florida Administrative Code. After the signs were destroyed, Respondent re-erected each of the six signs with substantially the same type of materials as had previously composed the structure of each sign, and at the same location as the destroyed signs. The materials used to re-erect the signs were not part of the sign structures immediately before the signs were destroyed by the Farmington Fire. Respondent's signs were re- erected in kind. Respondent does not own the property where any of the six signs are located. Under the terms of each agreement with the property owners under which Respondent has the right to maintain the signs, upon expiration or termination of the agreement, Respondent may remove all of its sign materials from the property, and may, unless otherwise agreed, no longer maintain the signs. Excluding the signs, Respondent conducts no other business activities on the property upon which the signs are located. Petitioner's witness, Ronald Weis, a Senior Forest Ranger with the Division of Forestry, had personal knowledge of the wildfires that occurred in Brevard County during June and July 1998 and participated in the investigation, management, and fighting of the wildfires in Brevard County in the areas where the subject signs are located. Respondent's witness, Dennis R. Dewar, based upon his years of experience and education in various fire fighting and teaching capacities, is qualified as an expert to testify in the areas of fire fighting training, fire fighting operations, the spread of fires, and the cause and origin of fires. The opinion testimony of Mr. Dewar, concerning the cause of the damage to the signs and the cause, origin, and spread of the Farmington Fire, was not persuasive. DOF regulates prescribed burns. However, it cannot mandate prescribed burns on private property. A prescribed burn is the controlled application of fire to property. One of the primary purposes of prescribed burning is to reduce the fuel load and, therefore, reduce fire hazard. The failure to prescribe burn increases the possibility of a wildfire. It is foreseeable that if prescribed burns are not done in an area over time the possibility of the spread of wildfire is foreseeable. A wildfire is any fire over which DOF has no control. Typically, a fire started by lightning can be controlled and contained. When a lightning strike starts a fire, the spread of that fire is influenced by human intervention. Property usually can be protected from damage as a result of a fire started by lightning.
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 that the outdoor advertising signs maintained by Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation, under outdoor advertising sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, BU 724-55, and BU 726-55 are illegal and must be removed pursuant to law. DONE AND ENTERED this 28th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of September, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Gerald S. Livingston, Esquire Livingston & Reilly, P.A. 612 East Colonial Drive, Suite 350 Post Office Box 2151 Orlando, Florida 32802 Thomas F. Barry, Secretary ATTN: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue There are two separate issues in this case: (1) Whether Petitioner breached its contract with Respondent by not making payments for a sign lease, thereby resulting in the sign permit becoming invalid; and (2) Whether Petitioner constructed a roadside sign illegally, i.e., without a permit.
Findings Of Fact Petitioner, SG Outdoor, is a company engaged in the business of outdoor advertising in Florida. Respondent is the State of Florida ("State") agency responsible for monitoring compliance with State and Federal laws relating to outdoor advertising. According to those laws, signs within 660 feet of primary or interstate roadways visible from those roadways are subject to advertising regulations. There is currently a 1,500-foot spacing requirement (up from 1,000 feet in 1984) between signs. Further, signs must be located on land zoned for commercial and industrial use. Petitioner owns two signs which are at issue in this proceeding. One of the signs is a single facing sign of wood construction with a seven-foot height above ground level. The sign is assigned Tag No. AU557. The sign is situated just off Interstate 4, .871 miles east of State Road 33 in Polk County, Florida. This sign will be referred to herein as the "Original Sign." The Original Sign was built in 1971 and was located, at all times relevant hereto, on land owned by Mrs. Ona Grimes until that land was purchased by the State in October 2002. Petitioner also constructed another sign at approximately the same location. This sign, referred to herein as the "New Sign," has a double-faced, single-metal pole and is considerably higher in height than the Original Sign. Both the Original Sign and the New Sign are located on property which DOT contends is zoned as "Pasture, with residence." However, Polk County did away with its zoning ordinance in March 2000 and replaced it with Land Use Districts. The current Land Use District designation for the site is Business Park Center (within the Green Swamp Area of Critical State Concern). There was no competent testimony at final hearing as to whether that designation constitutes commercial or industrial zoning for purposes of roadside signs. The Original Sign was purchased by Petitioner in 1991 and was located on the Grimes property. Petitioner entered into a Ground Lease with Grimes that had a term of 30 years at a payment of $1,500 per year. In 2002, DOT entered into negotiations with Grimes to purchase the property. When DOT purchases property on which a roadside sign already exists, DOT may take the sign by way of condemnation through eminent domain (sometimes referred to by DOT as a "Take"). In such cases, the State must reasonably compensate the sign owner for the taking of its sign. In the alternative, the State may assume the sign lease and become a lessor to the sign owner. In that case, the sign owner must make its lease payments directly to the State. On May 22, 2002, DOT sent a letter to Petitioner explaining that DOT was in the process of acquiring the right of way on which the Original Sign was located. DOT offered to purchase (or Take) the sign from Petitioner for $17,300. While that offer to Petitioner was pending, DOT went forward with the purchase of the Grimes property. The purchase agreement for the property was signed by Grimes on July 11, 2002. Four days later, a letter from DOT to Petitioner was issued which said: Subsequent to receiving agreement and signed ODA [out door advertising] disclaimer from the property owner, an offer has been made to SG Outdoor, Inc. for the purchase of the ODA structure. Negotiations are ongoing. However, the purchase of Grimes property did not occur immediately. Meanwhile, in August 2002, Grimes entered into an illegal lease with Lamar Advertising, giving Lamar the same rights it had already contracted away to Petitioner. Petitioner was unaware of the lease with Lamar at that time. Such a lease would have been in violation of the already-existing lease between Grimes and Petitioner. At almost the same time, a DOT memorandum indicated that DOT was still "involved in ongoing negotiations" with Petitioner concerning the sign. The Grimes property purchase (by DOT) finally closed on October 1, 2002, at which time DOT became the owner of the Grimes property. Because of this fact, Petitioner was supposed to make its annual lease payments to the State of Florida ("State") as the new owner. Stated differently, the State became Petitioner's new lessor. On October 14, 2002, Lamar Advertising filed a Sign Permit Application with the Polk County Building Division. The application was for approval of its sign on the Grimes property. The application included a copy of Lamar's lease with Grimes; the lease had a 10-year period and a payment of $4,000 per year.1 On July 8, 2003 (ten months after DOT purchased the property), Petitioner filed a permit application with Polk County for the New Sign. Petitioner did not, at that time, have permission from DOT to erect a new sign, but believed it could obtain that permission after the fact. Petitioner then went forward with the construction of the New Sign. Meanwhile, Petitioner sent Grimes a check in October 2003, for its lease payment for the period June 1, 2003, through May 30, 2004. By that time, the State already owned the Grimes property. A member of the Grimes family sent Petitioner's check back to Petitioner in January 2004, explaining that all payments should be made directly to the State. There is no evidence in the record as to whether Petitioner attempted to make a lease payment to the Department at that time or at any other time. In November 2003, DOT issued a certified letter to Petitioner addressing Sign Permit No. AU557 that said: On October 2, 2002, the above referenced parcel was purchased by the Florida Department of Transportation. Although the Department will honor an existing lease, it will not engage in any new lease agreements nor grant permission for the referenced sign to remain. Since any potential oral agreement with the previous owner has expired, the Department requests that the [Original] sign be removed. Clearly DOT was mistaken. Petitioner had a written, not oral, lease with the prior owner. In response, Petitioner sent DOT a copy of its Ground Lease with Grimes. At that time, Petitioner also asked for a meeting with DOT's acquisition director to continue negotiating a fair price for the Original Sign. Several months later (on July 9, 2004), DOT issued its Notice of Violation regarding the Original Sign. The notice said "that the outdoor advertising sign referenced above has been acquired by the Department" (rather than saying the Department had purchased the land). The notice directed Petitioner to immediately remove the sign from the premises. The notice was partially in error; DOT had actually acquired the land, not the sign. Petitioner was in breach of its lease with the State by failing to make lease payments as required by the lease which DOT had assumed. However, it is unclear as to whether, upon notice of receipt of the written lease, DOT had ever advised Petitioner to send its lease payments directly to the Department. The Notice of Administrative Hearing Rights attached to the DOT Notice of Violation indicates a deadline of 30 days from receipt of the Notice for filing such a request, i.e., on or about August 10, 2005. Petitioner responded to the Notice with another letter (dated July 14, 2009) explaining again that it had a valid lease with Grimes for the sign location. Petitioner's letter asked DOT to abate its violation notice and reinstate Petitioner's permit. It also stated that "[i]f the State decides not to acknowledge the Judicial process [the ongoing probate dispute with the Grimes family concerning the lease with Lamar] and still proceeds with the Notice of Violation, then upon receiving your next correspondence, we will exercise our privilege to request an administrative hearing." Petitioner contends that the quoted statement constituted its request for an administrative hearing. However, the plain reading of the statement indicates that it is a statement of future intent based upon future actions by DOT. DOT then issued a letter dated August 10, 2004, to Petitioner explaining that the permit for the Original Sign had been revoked. The letter directed Petitioner to remove the sign. The letter stated that if Petitioner does not do so, then DOT would have the right to remove the sign. (As of the date of the final hearing in this matter, the sign was still in place.) The August 10 letter, in response to Petitioner's July 14 letter, appears to be the "next correspondence" Petitioner had requested. The exercise of its right to an administrative hearing would, therefore, be due on or about September 11, 2004. On September 8, 2004, Petitioner sent a letter to Holschuh declining DOT's offer to purchase the Original Sign for $17,000. That offer had been made in May 2002.2 This letter suggests a counter-offer of $82,500 as the purchase price. The letter did not invoke Petitioner's right to an administrative hearing. Holschuh responded that she was not involved in acquisitions, and Petitioner should contact the district office (with whom Petitioner had previously negotiated). Instead of heeding Holschuh's directions, Petitioner then sent her another letter asking her to send the correspondence on to someone in the acquisition division. The new letter also repeats the counter-offer of $82,500. This letter did not invoke Petitioner's right to a formal hearing, either. About one year later, on October 6, 2005, DOT issued another Notice of Violation, this one addressing Sign Permit No. AU557a (which Holschuh at final hearing said referred to the Original Sign, although there was no "a" nomenclature on the July 9, 2004, Notice of Violation). Also, on October 6, 2005, DOT issued a Notice of Violation addressing Sign Permit No. AU557a#2, which Holschuh said referred to Petitioner's New Sign, even though no permit for the New Sign had ever been issued by DOT. The New Sign by this time had been completed and was being used for outdoor advertising. Petitioner understands the need for a permit to construct a new outdoor sign on the State road right-of-ways, but opined that it believed it could do so after the fact. Petitioner has only obtained approval from Polk County for erecting the sign, an event necessary for construction purposes, but irrelevant to DOT requirements. In the letter to DOT from Petitioner dated October 26, 2005 (and presumably accepted by DOT as Petitioner's request for a formal hearing), reference is made to Sign Permit No. AU557a#2, i.e., the New Sign. However, the letter addresses the Original Sign and its perceived value by Petitioner. It is patently unclear as to which sign is actually being addressed, but facts surrounding both signs were presented at final hearing and both have been addressed herein. Nonetheless, Petitioner's October 26, 2005, letter was submitted within 30 days of the latest Notice of Violation and was presumably intended to invoke Petitioner's right to a formal administrative hearing. This letter was then forwarded to DOAH by DOT in March 2009, for the purpose of conducting the hearing. (No evidence was presented as to why the DOT's cover letter and Petitioner's request for hearing were not submitted to DOAH until three-and-a-half years after the letter was written.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, reversing the revocation of Sign Permit No. AU557 and providing Petitioner, SG Outdoor, just compensation for that sign. Further, the final order should deem the newly constructed sign on the same site to be unauthorized and order its removal. DONE AND ENTERED this 19th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 19th day of November, 2009.
The Issue The issue for consideration in this case is whether Respondent's certification as an electrical sign specialty contractor in Pinellas County, Florida, should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for the regulation of the construction industry within the county and the certification of practitioners of the construction trades within the county. Respondent, Jack R. Garrison, Jr., was licensed as an electrical sign specialty contractor on May 11, 1995. His certification was received on October 1, 1997, but was suspended on July 30, 1998. It was on suspended status at all times pertinent to this case. On October 15, 1998, based on the recommendation of his landlady, Constance Parise, who had had prior dealings with the Respondent, Richard A. Swoager, owner of Planet Rubber, located at 2620 State Road 590 in Clearwater, Florida, contracted with Respondent, doing business at Garrison & Associates Sign Company, Inc., to have Respondent construct and install two new sign faces on the client's existing Coachman square pylon sign. Contract price for the removal and destruction of the old faces, the fabrication and installation of the new faces, and the installation of up to two florescent lamps, was $1,775.00 in addition to $124.25 in sales tax. Respondent requested and received an advance, at the time of signing the contract, a deposit of 50 percent of the total price, $949.62. The contract noted that the fabrication and installation was to be completed by November 1, 1998. Respondent assured the client at the time of signing the contract that the art work for the project would be ready for the client approval within one week. The art work was not presented to the client, not withstanding the client called Respondent to inquire about it several times. After making several calls to Respondent's place of business in unsuccessful efforts to obtain the work contracted and partially paid for, and just before the November 1, 1998, deadline, Mr. Swoager left word with Respondent's office that he wanted to cancel the contract and have his deposit returned. On October 26, 1998, after that notice, Mr. Swoager found a note from an individual by the name of Tracy Garrison, whom he believed to be Respondent's wife, representing that Respondent would deliver the deposit return by noon of that day. The money was not returned. Mr. Swoager enlisted the aid of his landlady, Ms. Parise, who had referred Respondent, in obtaining the return of his deposit. Ms. Parise made several phone calls to the Respondent but was unable to reach him. She also sent the Respondent a fax request for the return of the deposit and finally reached him. During this contact on October 25, 1998, eight days after the signing of the contract, Respondent advised Ms. Parise he did not want Mr. Swoager's business and would return the deposit. He reiterated the promise to return the deposit in a fax to Mr. Swoager dated October 28, 1998, specifically indicating the money would be delivered that day. It was not delivered. At not time did Respondent accomplish the work called for in the contract, nor did he return any of the funds paid as deposit. At no time during the period of the negotiation for or the signing of the contract, or at any time thereafter, did Respondent possess an active certification under which he could contract for or perform the work in question here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order revoking Respondent's certification as an electrical sign specialty contractor in Pinellas County, Florida. DONE AND ENTERED this 10th day of August, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Jack R. Garrison, Jr. 2249 Cypress Point Drive, West Clearwater, Florida 33763
Findings Of Fact In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That: Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed. DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Covered in Findings of Fact 1, 3, 4 and 7. Incorporated in Findings of Fact 5 and 6. Incorporated in Findings of Fact 7 and 8. Incorporated in Findings of Fact 2 and 7. Rulings on Proposed Findings of Fact Submitted by Respondent Incorporated in Findings of Fact 1 and 2. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 5. Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 7. Paragraph 1 - approved. Paragraph 2 - approved. Paragraph 3 - approved. Approved. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Rejected as conjecture after the fact. Rejected. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151
The Issue Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code. The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge. The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida. The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign. The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida. Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west. The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction. The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads: "479.07 Individual device permits; fees; tags.-- Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04." The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit. The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway. The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy. In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence. Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs. (In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.) The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected. Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign. Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.) Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814. Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement. It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states: "14-10.04 Permits. Permit Approval Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant. The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature. Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser. Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states: "14-10.04 Permits. Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within 30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible but not readily accessible by the general public." At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
Recommendation It is recommended that the signs located at State Road 814 and State Road 84 that are the subject matter of this dispute be removed. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Nancy Severs, Esquire Miller, Squire & Braverman 500 Northeast Third Avenue Fort Lauderdale, Florida 33301 =================================================================
The Issue Did the Department of Transportation properly issue Notice of Violation No. 10B LJM 1997 197 to Respondent pursuant to Chapter 479, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Deron's owns the property located at 4212 Hammond Drive (State Road 542) which is on the east side of Hammond Drive. Deron's business establishment is located at 4212 Hammond Drive. Deron's primary business activities such as screen printing, embroidery, and sales are conducted at 4212 Hammond Drive. Eastwood Self-Storage (Eastwood) is located at 4207 Hammond Drive, which is on the west side of Hammond Drive. Eastwood is in the business of leasing storage spaces to the public for self-storage. Deron's currently leases three self-storage spaces from Eastwood where Deron's primarily stores its excess inventory and supplies. Deron's does not have a business office located at 4207 Hammond Drive and does not conduct any of its business activities such as screen printing, embroidery, and sales at the self-storage units located at 4207 Hammond Drive. The sign subject to this proceeding (sign) is located at 4207 Hammond Drive on property owned by Eastwood. Deron's paid Eastwood to erect the subject sign which sits on top of an on-premise sign owned by Eastwood. Deron's does not pay any rent for the use of the sign to Eastwood or anyone else. The sign advertises Deron's business and the business activities performed by Deron's at its establishment located at 4212 Hammond Drive. Hammond Drive separates the property owned by Eastwood where the sign is located (4207 Hammond Drive) from the property owned by Deron's at 4212 Hammond Drive upon which Deron's business establishment is located. The sign is located within 660 feet of, and is visible to, State Road 542, a jurisdictional highway for purposes of enforcing outdoor advertising. Because of the location of the subject sign (within a 1000 feet of another permitted sign on the same side of Hammond Drive), it does not meet the permitting requirements of Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the subject sign to be in violation of Chapter 479, Florida Statutes; and it is further recommended that Deron's be required to remove the sign from its location. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st of December, 1998. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John G. Wood, Jr., Esquire 3601 Cypress Gardens Road Suite A Winter Haven, Florida 33884
