Findings Of Fact On 30 April 1976 Salter Advertising Company's application to locate a sign facing north on Salter-owned property off the I-110 near the intersection of Scott and Alcaniz Streets, Pensacola, Florida, was approved (Exhibit 1). By application dated 12 November 1976 Salter requested authorization to erect a sign at the same location facing south (Exhibit 8). This application was disapproved by the District sign inspector on December 20, 1976. What happened to the original of Exhibit 8 was not disclosed at the hearing. On a duplicate original of this application, which was introduced as Exhibit 9, the disapproval on the duplicate original application was erased or whited-out and under date 5-2-77, this application was approved by the District Sign Coordinator, the supervisor of the inspector who had disapproved Exhibit 8. The copy introduced as Exhibit 8 differs from Exhibit 9 in several respects. In the first place it is a carbon copy of what appears to have been the original of Exhibit 8. The "received" stamps dated November 24, 1976, December 13, 1976, and December 21, 1976, appear at different places on Exhibits 8 and 9; Exhibit 8 contains a "returned" stamp with date of 11/15/76 which does not appear on Exhibit 9; Exhibit 9 contains a "received" stamp dated April 29, 1977 which does not appear on Exhibit 8; and Exhibit 9 shows sign to be facing both S and W, while Exhibit 8 shows sign facing S only. The reason given for disapproving Exhibit 8 contained in letter dated January 31, 1977, (Exhibit 5), was that there was inadequate space to place a sign at the location proposed because of the City of Pensacola's setback line 50 feet from the center line of Alcaniz Street. This same condition exists respecting the application approved in Exhibit 1. Accordingly, no sign has been erected at the location despite the approval of the South and West facing sign approved in Exhibit 9. In November of 1976 Respondent contacted Petitioner's sign inspector for Pensacola and arranged to meet at the site of the sign proposed in Exhibits 2 and 4. The property at this location was for sale and Respondent wanted to know if it was suitable for a sign. At this time it was customary for the official who approved the application to go to the site before the application was submitted and advise whether or not an application for a sign at the location would be approved. At the on-site meeting the inspector advised Respondent that approval for the intended sign would be forthcoming. Respondent then purchased the property, submitted the application for sign approval and erected the sign at a cost of some $12,000. The testimony, that it was customary for an applicant after receiving on-site approval, to erect the sign before receiving formal approval of its application for sign permit, was not rebutted. The sign erected by Respondent is located approximately 300 feet from the site for which Salter received approval of its application in Exhibits 1 and The I-110 is part of the interstate system.
The Issue At issue in these consolidated proceedings is whether the permits for signs bearing tag numbers BT339, AE862, and AX116 should be revoked, pursuant to Section 479.08, Florida Statutes (2007).
Findings Of Fact Lamar owns and maintains outdoor advertising signs in the State of Florida. Pursuant to the permitting requirements of Section 479.07, Florida Statutes, the Department issues permits and tags to outdoor advertising signs along interstate and federal-aid primary highway systems. Signs that met permitting criteria at the time they were erected, but that do not comply with subsequently enacted laws or that no longer comply with the law due to changed conditions, may nonetheless be permitted and maintained as "nonconforming signs."1 In compliance with Subsection 479.02(8), Florida Statutes, the Department in 1997 and 1998 conducted a statewide inventory of all signs on the state interstate and federal-aid primary highway systems. This inventory became the database for all signs permitted at the time it was completed. The Department sent the inventory results to all sign owners in order to provide them an opportunity to confirm or challenge the accuracy of the results. The database includes the location of the sign; the dates the sign was permitted and constructed; its date and method of construction; the height, including the Height Above Ground Level ("HAGL"); the height, width, and square footage of the sign facing; the number and type of support structures used; whether the sign is lighted or not; the status of the sign as a conforming, nonconforming, or illegal sign; and other identifying information. Subsection 479.02(8), Florida Statutes, provides that the inventory of signs is to be updated no less than every two years. The Department in fact performs the update every year. In 2004, a series of hurricanes passed through Florida, destroying or damaging thousands of outdoor advertising signs. The Department issued notices of intent to revoke the permits of nonconforming signs that appeared to have been destroyed by the storms. In February 2005, the Department and Lamar entered into a settlement agreement that allowed Lamar to rebuild some signs and required the removal of others. The signs at issue in this proceeding were among those allowed to remain standing with repair. As to these signs, the settlement agreement provided: The outdoor advertising signs referenced above remain lawfully erected nonconforming signs and LAMAR may repair said signs, provided that said repair shall be at the pre-storm location and to pre-storm specifications, including configuration, type of materials, height, size, area of face and lighting. Exceptions to pre-storm specifications will be allowed to the extent required to comply with local building codes. Such repairs shall be completed within 270 days of entry of a Final Order approving this Joint Stipulation of Settlement. The referenced Final Order was entered on March 15, 2005. The Department issued permit numbers 13778 and 137790 and tag numbers BT339 (replaced by tag number CF221 at the time of the hearing) and AE862 to a nonconforming, back-to-back sign located along U.S. 1 in Martin County, .08 miles north of Constitution Boulevard in Hobe Sound. At the time of the 1997 inventory, the Martin County sign was a five-pole wooden structure. The Martin County sign sustained heavy damage during the 2004 hurricanes. After the storms, Lamar sent a work crew to the sign's location to rebuild the sign. The work crew replaced the sign with a four-pole wooden structure. Dave Henry, the real estate leasing manager for Lamar, testified that he gave the crew no particular instruction on how to rebuild the sign. During the rebuilding process, Mr. Henry gave his crews the locations, and told them to rebuild the signs as they had been before the storms. Mr. Henry stated that the crew probably looked at the remains of the damaged sign, saw only four stumps in the ground, and assumed that the original sign had only four supports. On March 21, 2006, the Department issued a Notice to Lamar, stating that the sign bearing tag numbers BT339 and AE862 "has been structurally changed and is no longer substantially the same as it was on the date it became nonconforming, in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code Rule." On February 20, 2007, a Recommended Order was entered in Lamar South Florida v. Department of Transportation, Case No. 06-3281 (DOAH February 20, 2007). In that case, Judge R. Bruce McKibben recommended that the Department withdraw a Notice issued to Lamar South Florida because the Notice failed to specify exactly which changes to the sign in question caused the sign to be in violation of the Department's rules. Rather, the Notice merely provided a citation to Florida Administrative Code Rule 14-10.007(2)(a). In a final order dated May 21, 2007, the Department accepted Judge McKibben's recommendation, and acknowledged the "apparent confusion" regarding the running of the 30-day notice period and the nature of the notice required to trigger the running of that period. As a result of the Lamar South Florida case, the Department began to issue Notices that contained more specific information regarding the alleged violations. On July 31, 2007, the Department sent Lamar a replacement Notice for the Martin County sign, adding a more specific description of the violation, which stated that the sign "has been structurally modified in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code Rule: the number of supports has changed."2 The replacement notice also added the following provision: REVOCATION OF THE PERMIT(S) WILL BECOME FINAL thirty (30) days from your receipt of this notice unless you provide information to the Department showing the Notice was issued in error OR you correct the violation within 30 days of your receipt of this Notice, and provide evidence of the correction to the Department. For nonconforming signs, while you may correct the violation, you may not exceed the allowable maintenance standards as stated in s. 14-10.007(2), F.A.C. Lamar did not act within 30 days of the Notice to correct the violation and restore the Martin County sign to a five-pole structure. Mr. Henry testified that a fifth pole was added to the structure on November 16, 2007. The Department issued permit number 7359 and tag number AX116 to a nonconforming, single-faced sign in Polk County along U.S. 27, .141 miles east of Heatherwood Boulevard in Lake Wales. On November 22, 1997, the Polk County sign was inventoried and photographed as a seven-pole wooden structure. Lamar did not own the sign at the time the 2004 hurricanes damaged it. Lamar acquired the Polk county sign in 2005, after it had been rebuilt as a six-pole structure. On March 21, 2006, the Department issued a Notice to Lamar, stating that the sign bearing tag number AX116 "has been structurally changed and is no longer substantially the same as it was on the date it became nonconforming, in violation of s. [sic] 14-10.007(2)(a), Florida Administrative Code." On July 31, 2007, the Department sent Lamar a replacement Notice for the Polk County sign, adding a more specific description of the violation which stated that the sign "has been structurally modified in violation of s. [sic] 14- 10.007(2), Florida Administrative Code: the number of supports has changed. . .".3 The replacement notice also contained the language quoted at finding of fact 14, supra. Lamar did not act within 30 days of the Notice to correct the violation and restore the Polk County sign to a seven-pole structure.
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 permits for the nonconforming signs bearing tag numbers BT339, AE862, and AX116. DONE AND ENTERED this 21st day of February, 2008, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 21st day of February, 2008.
The Issue Whether the mural on the east exterior wall of the City Inn Hotel is an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' factual stipulations, the following findings of fact are made: Pursuant to federal law (specifically, 23 U.S.C. § 131(b) of the Highway Beautification Act of 1965), a state's share of federal-aid highway funds may be reduced by ten percent if the state has failed to maintain "effective control" of outdoor advertising "along the Interstate System and the primary system." What constitutes "effective control," as that term is used in 23 U.S.C. § 131(b), is explained as follows in 23 U.S.C. § 131(c): Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, signs, displays, and devices including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required. An exception to the restrictions imposed on outdoor advertising by 23 U.S.C. § 131(c) is found in 23 U.S.C. § 131(d), which allows the placement of signs in commercial and industrial areas "consistent with customary use," as "determined by agreement between the several States and the Secretary [of the federal Department of Transportation]." Florida is a signatory to such an agreement. The agreement was entered into on January 27, 1972, by the Administrator of the Federal Highway Administration, acting on behalf of the federal Department of Transportation, and the Governor of the State of Florida, acting on behalf of the State (1972 Agreement). Section II. of the 1972 Agreement is entitled, "Scope of Agreement," and it reads as follows: This agreement shall apply to the following areas: All zoned and unzoned commercial and industrial areas within six hundred sixty (660) feet of the nearest edge of the right- of-way of all portions of the Interstate and Federal-aid Primary Systems within the State of Florida in which outdoor advertising signs may be visible from the main-traveled way of either or both of said systems. Section III. of the 1972 Agreement is entitled, "State Control," and it reads, in pertinent part, as follows: The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria: In zoned commercial and industrial areas, the State may notify the Administrator that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply. In all other zoned and unzoned commercial and industrial areas, the criteria set forth below shall apply: SIZE OF SIGNS The maximum area for any one sign shall be twelve hundred (1,200) square feet with a maximum height of thirty (30) feet and maximum length of sixty (60) feet, inclusive of any border and trim but excluding the base or apron, supports, and other structural members. The area shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof which will encompass the entire sign. The maximum size limitations shall apply to each side of a sign structure; and signs may be placed back-to-back, side-by-side, or in V-type construction with not more than two displays to each facing, and such sign structure shall be considered as one sign. SPACING OF SIGNS Interstate and Federal-aid Primary Highways. Signs may not be located in such a manner as to obscure, or otherwise physically interfere with the effectiveness of an official traffic sign, signal, or device, obstruct or physically interfere with the deriver's view of approaching, merging, or intersecting traffic. Interstate Highway. a. No two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction. * * * Federal-aid Primary Highways. No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction. Explanatory Notes. Official and "on premise" signs, as defined in Section 131(c) of Title 23, United States Code, and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements. The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway and shall apply only to structures located on the same side of the highway. LIGHTING Signs may be illuminated subject to the following restrictions: Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information. Signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of the Interstate or Federal- aid Primary Highway and which are of such intensity or brilliance as to cause glare or to imp[air] the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited. No sign shall be so illuminated that it interferes with the effectiveness of, or obscures an official traffic sign, device, or signal. All such lighting shall be subject to any other provisions relating to lighting of signs presently applicable to all highways under the jurisdiction of the State. At any time that a bona fide county or local zoning authority adopts regulations which include the size, lighting, and spacing of outdoor adverting, the State may so certify to the Administrator and control of outdoor advertising in the commercial or industrial zones within the geographical jurisdiction of said authority will transfer to subsection A of this section. * * * Section IV. of the 1972 Agreement is entitled, "Interpretations," and it reads as follows: The provisions contained herein shall constitute the standards for effective control of signs, displays, and devices within the scope of this agreement. In the event the provisions of the Highway Beautification Act of 1965 are amended by subsequent action of Congress or the State legislation is amended, the parties reserve the right to renegotiate this agreement or to modify it to conform to any amendment. The 1972 Agreement has not been modified, pursuant to the provisions of Section IV., at any time subsequent to its execution in 1972. The Florida Legislature has delegated to the Department the responsibility of administering and enforcing the 1972 Agreement, as well as Chapter 479, Florida Statutes, which regulates "outdoor advertising." As the Department's Outdoor Advertising Administrator, Lynn Holschuh is responsible for overseeing the Department's discharge of this responsibility. She has delegated to the Regional Inspectors under her charge (including Mark Johnson, the lone Regional Inspector whose territory includes Miami-Dade County) the authority to post notices of violations on all illegal signs, without restriction. Among the provisions in Chapter 479, Florida Statutes, is Section 479.156, Florida Statutes, which was originally effective July 1, 2007, and provides that, "[n]otwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government," provided it does so within the parameters prescribed by the statute. The City of Miami has an ordinance (Miami Ordinance) permitting a limited number of wall murals in certain geographic areas of the city (wall mural districts3) that meet specified size, lighting, and spacing requirements. Among the Miami Ordinance's "Whereas" clauses is the following: WHEREAS, it is determined that the prominent display of large outdoor advertisements in the commercial and industrial Urban Core areas of Miami, as defined by Miami-Dade County, was a predominant and customary use up to and including 1972, and that permitting wall murals as designated in this ordinance is consistent with such customary use and the intent of the Highway Beautification Act of 1965. Sometime after May 1, 2009, the City of Miami sent to the Department a written request that it be "certified for local control over wall murals" pursuant to Section III. of the 1972 Agreement. The request read as follows: Request from the City of Miami to the Florida Department of Transportation to be certified for local control over wall murals pursuant to 23 U.S.C. § 131, 23 C.F.R. § 706, Federal policy, the Federal-State Agreement dated January 27, 1972, § 479.156, Florida Statutes, and Fla. [] Admin. [Code] [R.] 14-10.025.[4] The City of Miami has passed Ordinance No. 12983 creating Sections 62-601 through 62- 618 of the Code of the City of Miami, on May 10, 2008, permitting and regulating wall murals. An amendment to that ordinance was subsequently adopted, which confirms that wall murals were a customary use as of 1972 and thereafter. Copies of the ordinance and amendment are enclosed. This ordinance was adopted with the intent to permit art or graphics on buildings and existing walls in certain commercial and industrial areas "in order to aesthetically enhance otherwise blank walls and unoccupied buildings." The funds from permitting these activities is to be utilized "to ensure quality of life and prevention of visual clutter or blight." It is estimated that nearly $2 million dollars of new local revenue is being generated from the permitting process. In these difficult economic times, this revenue is even more vital and the City is appreciative of both the State of Florida's and the Federal government's mutual assistance in helping create this stimulus. The ordinance is consistent with the intent of the Highway Beautification Act, the 1972 Federal-State agreement, and with federal regulations, federal policy, as well as with § 479.156, F.S. and Fla. Admin. [Code] R. 14-10.025. The ordinance and this submission are also consistent with the amendment to § 479.156, F.S., passed on May 1, 2009 by the Legislature in HB 1021. The City of Miami's request for certification is still pending. The Department is "awaiting [supporting] documentation from the City of Miami," which it has yet to receive. When it receives such documentation, it will refer the matter "for [the Federal Highway Administration's] determination." The Department has several "open cases" (the oldest dating back to 2006) each involving one or more allegedly illegal wall murals located in a wall mural district created by the Miami Ordinance.5 The Department has decided not to refer these "open cases" to DOAH for hearing, nor to take any other action with respect to these cases (including removal of the wall murals in question), until after a determination is made by the Federal Highway Administration as to whether the Miami Ordinance "effectively controls" outdoor advertising in the wall mural districts described in the ordinance in a manner "consistent with the intent of the Highway Beautification Act of 1965 and with customary use," as required by the 1972 Agreement. The City Inn Hotel (Hotel) is located at 660 Northwest 81st Street in Miami. It is not within any of the wall mural districts created by the Miami Ordinance. There presently is no local government ordinance comparable to the Miami Ordinance permitting wall murals in the area in which the Hotel is located, although Petitioner is engaged in efforts to convince the Miami-Dade County Commission that it should pass such an ordinance. Petitioner has owned the Hotel since July 2000. The Hotel is a revenue producing property. Petitioner rents out space inside the Hotel (hotel rooms, apartments, offices, and facilities for banquets and worship services); on the roof of the Hotel (for the placement of cellular towers); and on the exterior walls of the Hotel (for the display of wall murals).6 There have been "wall murals on the [exterior of the] building since [Petitioner] bought the property." At no time has Petitioner ever requested or obtained from the Department a sign permit for any of these murals. By issuance of Amended Notice of Violation-Illegally Erected Sign Number 1005005La (Amended Notice Number 1005005La) on June 23, 2006, the Department notified Petitioner that murals on the north, south, and east exterior walls of the Hotel were "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes," and that these murals had to be "removed [by Petitioner] within thirty days" or else they would be "removed and disposed of by the Department without further notice" at Petitioner's expense. Petitioner requested an administrative hearing, and the Department forwarded the matter to DOAH for the assignment of an administrative law judge. The case was docketed as DOAH Case No. 06-3683. The final hearing in DOAH Case No. 06-3683 was held on June 5, 2007, before Administrative Law Judge Patricia M. Hart. Judge Hart issued her Recommended Order in DOAH Case No. 06-3683 on September 28, 2007. Judge Hart's Recommended Order contained the following Findings of Fact: The Department is the state agency responsible for regulating outdoor advertising and for issuing permits for signs located along interstate and federal aid primary highways pursuant to Chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10. See 479.02, Fla. Stat. Judah Burstyn is the president of Malibu Lodging LLC, which owns the City Inn Hotel, a 200-room hotel located at 660 Northwest 81st Street, Miami, Florida. Mr. Burstyn describes the business of Malibu Lodging Investments/City Inn Hotel as a mixed-used real estate project. Malibu Lodging Investments/City Inn Hotel rents hotel rooms and apartments in the City Inn Hotel property; it rents rooftop space on top of the City Inn Hotel to cellular telephone companies; it owns a used car lot located at 8028 Northwest 6th Court, Miami, Florida, adjacent to the hotel property; it rents meeting space in the hotel to a church; it rents the hotel banquet room and parking lot for special events; it rents office space and storage space in the City Inn Hotel; and it rents the use of portions of the City Inn Hotel property to tenants and the public for special events. In Plain Sight Media, a Nevada corporation, is principally engaged in the business of advertising and marketing its clients' products. In Plain Sight Media is a full-service media company that, among other things, designs, prints, installs, and removes outdoor advertising for its clients. The outdoor advertising primarily consists of images printed on large sheets of self- adhesive vinyl that are affixed to the exterior walls of buildings. In Plain Sight Media also designs and distributes promotional materials for its clients and assists its clients in direct sales of the clients' products. It does not, however, engage in actual direct sales of its clients' products. Pursuant to a lease executed March 1, 2007, by Malibu Lodging Investments/City Inn Hotel and In Plain Sight Media, In Plain Sight Media leases office and other space in the City Inn Hotel property from Malibu Lodging Investments/City Inn Hotel for rent totaling $21,750.00 per month. The lease provides that In Plain Sight Media has the right to "place advertising signage on the [City Inn Hotel] premises at [In Plain Sight Media's] discretion" and that In Plain Sight Media "shall use the Property as a media, marketing and advertising company for products having to do with Volkswagen, Vitamin Water and other clients represented by [In Plain Sight Media], whose clients['] promotional products and services are available on the [Malibu Lodging Investments/City Inn Hotel] premises." In Plain Sight Media employs an individual who is in the office located in the City Inn Hotel from time to time, on an as-needed basis. She is responsible for answering the telephone, responding to inquiries from the public about the products of In Plain Sight Media's clients, organizing special promotional events, and performing general office work. Malibu Lodging Investments/City Inn Hotel and In Plain Sight Media also executed a Lease Agreement for Wallspace at or about the end of January 2007, in which In Plain Sight Media agreed to pay Malibu Lodging Investments/City Inn Hotel the greater of $21,750.00 per month or 50 percent of In Plain Sight Media's monthly ad revenue for the right to install and maintain wall signage advertisements or displays on each of the north and south exterior walls of the City Inn Hotel property at 600 [sic] Northwest 81st Street in Miami, Florida, for a minimum total monthly rent of $43,500.00. According to the testimony of Mr. Burstyn and of Marc Caldera, President of In Plain Sight Media, the March 1, 2007, lease covering office, storage space, and the use of other space in the City Inn Hotel and the adjacent parking lot and used car lot operated to void the Lease Agreement for Wallspace. On June 23, 2006, when the Amended Notice of Violation-Illegally Erected Sign was issued, large wall murals were attached to the north, east, and south exterior walls of the City Inn Hotel property advertising Heineken beer, Krieger watches, and a "Read to Achieve" program promoted by the Miami Heat basketball team. At the time of the final hearing in this case, these wall murals had been replaced with two larger wall murals on the north and south exterior walls, each approximately 60 feet wide and 65 feet high.[7] One wall mural featured a picture of a Volkswagen automobile with the slogan, "Woe isn't you. Dare to be happy," located on the south exterior wall of the City Inn Hotel, and the other featured a picture of a bottle of Vitamin Water and Shaquille O'Neal with the slogan "diesel power it works . . . for shaq," on the north exterior wall. Both of the banners were created, installed, and maintained by In Plain Sight Media. Guests at the City Inn Hotel sometimes purchase an automobile from the used car lot located adjacent to the City Inn Hotel and owned by Malibu Lodging Investments/City Inn Hotel. Volkswagen automobiles are, from time to time, available for rent or for sale on this car lot. In Plain Sight Media sells Vitamin Water from a vending machine inside the City Inn Hotel property, and Malibu Lodging Investments/City Inn Hotel receives a percentage of the revenue from the vending machine sales. If anyone asks about Vitamin Water at the In Plain Sight Media office in the City Inn Hotel, during the time the office is staffed, information about the product and promotional material is available. The wall murals installed on the north and south exterior walls of the City Inn Hotel property have generated inquiries to In Plain Sight Media from persons interested in its advertising and/or marketing services, and Mr. Burstyn believes that the wall murals have increased foot traffic in the City Inn Hotel. Both of the wall murals installed on the exterior walls of the City Inn Hotel are visible from Interstate 95 and are located within 660 feet of the right-of-way for that federal highway. Neither In Plain Sight Media nor Malibu Lodging Investments/City Inn Hotel has applied to the Department for, or obtained, outdoor advertising permits for these wall murals. The wall murals on the exterior walls of the City Inn Hotel property are signs that advertise Volkswagen automobiles and Vitamin Water. As such, they cannot be displayed without an outdoor advertising permit. The wall murals do not advertise In Plain Sight Media or the City Inn Hotel, nor do they identify any merchandise or service offered as part of the principal business activity of either In Plain Sight Media or the City Inn Hotel. There is currently no agreement explicitly giving Malibu Lodging Investments/City Inn Hotel the right to receive rental income attributed to outdoor advertising attached to the exterior walls of the City Inn Hotel. The March 1, 2007, lease gives In Plain Sight Media the right to "place advertising signage" on the City Inn Hotel property, and it is reasonable to infer that a portion of the $21,750.00 per month rent paid to Malibu Lodging Investments/City Inn Hotel by In Plain Sight Media includes rent for the use of the exterior walls of the City Inn Hotel for advertising signage. This inference is supported by the terms of the lease executed in January 2007, which provided for In Plain Sight Media to pay Malibu Lodging Investments/City Inn Hotel a minimum of $43,500.00 in rent for nothing more than the right to affix advertising wall murals on the exterior surfaces of the north and south walls of the City Inn Hotel. Wall murals have been attached to the exterior walls of the City Inn Hotel since at least the early 1990's. Malibu Lodging Investments/City Inn Hotel elicited evidence from the Department's witnesses relating to the withdrawal of a notice of violation for an illegal, unpermitted wall mural advertising "Continuum II." The notice of violation was withdrawn by the Department because it determined that the sign advertised a project that was to be developed on the site where the wall mural was displayed. When the "Continuum II" wall mural was replaced with a wall mural advertising Fiji water, a notice of violation was issued for that unpermitted sign. In her Recommended Order, Jude Hart made the following Conclusions of Law, among others: 24. Based on the findings of fact herein, the Department has proven by a preponderance of the evidence that the wall murals attached to the north and south exterior walls of the City Inn Hotel are signs that are visible from and within 660 feet of a federal interstate highway and that the signs were erected and are maintained without a permit. * * * Based on the findings of fact herein, Malibu Lodging Investments/City Inn Hotel has failed to carry its burden of proving that the wall murals advertising Volkswagen automobiles and Vitamin Water fall within the exemption set forth in Section 479.16(1), Florida Statutes. The principal business activity of In Plain Sight Media is marketing and promotion, including the design, erection, and maintenance of wall murals, and the principal business activity of Malibu Lodging Investments/City Inn Hotel is an income-producing, mixed-use real estate venture. Volkswagen automobiles and Vitamin Water are neither principal nor accessory products or services "sold, produced, manufactured, or furnished" on the premises of the City Inn Hotel but are, at best, products incidental to the principal business activity of these companies. The fact[] that, from time to time, Volkswagen automobiles are available for sale or rent on the used car lot owned by Malibu Lodging Investments/City Inn Hotel; that Vitamin Water is sold from a vending machine in the City Inn Hotel; and that the wall murals have generated interest in the advertising services provided by In Plain Sight Media and have increased the foot-traffic in the City Inn Hotel are not sufficient to establish that these wall murals advertise products or services that are the principal business activity of Malibu Lodging Investments/City Inn Hotel or In Plain Sight Media. Furthermore, based on the findings of fact herein, it is reasonable to infer that part of the rental income Malibu Lodging Investments/City Inn Hotel receives from In Plain Sight Media is for the right to use the hotel's exterior walls to display wall murals, so the wall murals [displayed by] Malibu Lodging Investments/City Inn Hotel [are] not entitled to the exemption in Section 479.16(1), Florida Statutes. Finally, based on the findings of fact herein, Malibu Lodging Investments/City Inn Hotel has failed to prove that the wall murals advertising Volkswagen automobiles and Vitamin Water are conforming or nonconforming signs for which a permit may be issued pursuant to Section 479.105(1)(e), Florida Statutes. There was no showing that wall murals have been continuously maintained on the exterior walls of the City Inn Hotel for the past seven years. The wall murals must, therefore, be removed. "Based on [her] Findings of Fact and Conclusions of Law," Judge Hart recommended that the Department "issue a final order finding that the wall murals attached to the exterior walls of the City Inn Hotel property violate[d] Section 479.07(1), Florida Statutes, and ordering that the wall murals be removed." In her Recommended Order, Judge Hart did not address the issue of whether the wall mural that had been attached to the east exterior wall of the Hotel, but had been removed prior to the final hearing, had been illegally erected and maintained, as had been alleged in Amended Notice Number 1005005La. Neither did she discuss the issue of whether the Department was guilty of engaging in selective enforcement. In the Final Order that it issued on December 21, 2007, the Department adopted Judge Hart's Findings of Fact and Conclusions of Law and ordered the following, "[b]ased upon [these] Findings of Fact and Conclusions of Law": ORDERED that Malibu Lodging Investments, LLC, d/b/a City Inn Hotel, shall remove the wall murals attached to the exterior walls of the City Inn Hotel property identified in the Department of Transportation's Notice of Violation-Illegally Erected Sign and Amended Notice of Violation-Illegally Erected Sign, Notice No. 100505La [sic], within 30 days of this final order. It is further ORDERED that should Malibu Lodging Investments, LLC, d/b/a City Inn Hotel fail to remove the murals, the Department of Transportation, or its contractor, will remove the murals without further notice and the cost of removal is hereby assessed against Malibu Lodging Investments, LLC, d/b/a City Inn Hotel, pursuant to Section 479.07(8)(d), Florida Statutes.[8] Petitioner currently has a lease agreement with Anheuser-Busch (Lease Agreement), pursuant to which it receives rental income for displaying murals advertising Anheuser-Busch products on the exterior of the Hotel.9 This is a critical revenue source for Petitioner. According to Petitioner's President, Judah Burstyn, without the wall mural revenue it receives, Petitioner would have to close the Hotel and file for bankruptcy. As part of the Lease Agreement, Anheuser-Busch has "occupie[d] space in the [Hotel]." Initially, the space it occupied was used just for "storage."10 Subsequently, it set up a "satellite [office] location" at the Hotel. The record is devoid of any persuasive competent substantial evidence that any Anheuser-Busch product, including Bud Light, Landshark Lager, or Beck's Beer, is now, or was at any time material to the instant case, sold, produced, manufactured, or furnished on the premises of the Hotel. At the time of the issuance of Notice Number T144MB, a mural advertising Bud Light covered the east exterior wall of the Hotel. This mural was replaced (on or before April 22, 2009) by a mural advertising Landshark Lager, which, in turn, was taken down (on June 17, 2009) and replaced (on or about June 24, 2009) by the mural now covering the east exterior wall. This mural advertises Beck's Beer. Like its predecessors, it is unpermitted, is within 660 feet of the edge of the right-of-way of I-95, and can be seen without visual aid by motorists of normal visual acuity traveling on I-95. The Department has not carried out the threat it made in Notice Number T144MB that, if the mural on the east exterior wall of the Hotel was not removed by Petitioner within 30 days of August 20, 2008, the mural would "be removed and disposed of by the Department without further notice" and "all costs associated with the removal [would] be assessed against the sign owner." More than a full year has passed since the issuance of Notice Number T144MB and an unpermitted mural (albeit one advertising a different Anheuser-Busch product) still covers the east exterior wall of the Hotel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation issue a Final Order finding that the Mural on the east exterior wall of the City Inn Hotel is an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes. DONE AND ENTERED this 25th day of August, 2009, in Tallahassee, Leon County, Florida. S 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 25th day of August, 2009.
The Issue The issue is whether Petitioner is entitled to a passing score on his examination for electrical outdoor sign specialty certification.
Findings Of Fact Petitioner has been in the outdoor sign business since 1975 when he began as a sign painter. A short time after entering the business, he became involved in the construction of electrical signs. Petitioner is the president of a company that earns $700,000 annually from the construction and installation of electrical signs. The company is licensed, and its qualifier is a general contractor. Petitioner has never been a licensed electrical contractor, nor has he ever worked as an electrical journeyman. On July 17, 1997, Petitioner took the electrical outdoor sign examination for the fourth time, and, for the fourth time, he failed the exam. He earned a 67, and 75 is the minimum passing score. After receiving his grade for the July 1997 test, Petitioner protested questions 3, 4, 14, 24, 42, 51, 60, 61, 72, 96, 97, 98, 99, and 100 as related to unlimited electrical contracting or alarm contracting, rather than outdoor sign electrical contracting. With leave of the Administrative Law Judge, Petitioner added at the hearing several other questions to his challenge: 18, 25, 32, 33, 35, 44, 50, 53, 55, 57, 68, and 70. At the hearing, Petitioner conceded that certain questions applied to electrical sign contracting. These questions were 14, 35, 44, 51, 53, and 55. These questions clearly apply to electrical sign contracting. At the hearing, Petitioner conceded that several questions were related to electrical sign contracting, but not exclusively to electrical sign contracting. These questions were 25, 32, 33, 42, 50, 57, 60, 68, and 70. These questions apply to electrical sign contracting and possibly to general electrical contracting as well. The remaining questions are 3, 4, 18, 24, 61, 72, 96, 97, 98, 99, and 100 are, like the questions discussed in the preceding two paragraphs, applicable to electrical sign contracting. Like all the challenged questions, except for question 42, these questions involve subject matter that is within the scope of the work authorized by the specialty certificate that Petitioner seeks. As to the concrete that is the subject of question 42, some working knowledge of this aspect of the construction industry is needed to fulfill one's obligations to the customer.
Recommendation It is ORDERED that Respondent dismiss Petitioner's challenge to the July 1997 electrical outdoor sign examination. DONE AND ENTERED this 22nd day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998. COPIES FURNISHED: J. Michael Hussey, Attorney Post Office Box 540 Fort Myers, Florida 33902-0540 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ila Jones, Executive Director Board of Employee Leasing Companies Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 to be resolved in this proceeding is whether a bill board (sign) bearing permit number BB058 (Tag BB058) was illegally modified as envisioned in Florida Administrative Code Rule 14-10.007(2), by having more than 50 percent of its materials replaced within a 24-month period and thus whether the permit for the billboard should be revoked.
Findings Of Fact The Petitioner (Salter) is the owner and operator of an outdoor advertising sign structure, located on State Road 89 in Santa Rosa County, Florida. The sign is located approximately at .01 miles north of Metz Road. It is undisputed that the sign is a "non-conforming" sign and it is permitted with Tag Number BB058. Hurricane Dennis struck Santa Rosa County on July 10, 2005. It damaged the sign. Prior to the storm the structural components of the sign consisted of two poles in the ground, or ground supports, two vertical supports (2 x 6) four braces, and two horizontal stringers. Salter's initial damage assessment, done by Mr. David McCurdy, was that one pole had broken and that therefore only one pole or ground support needed to be replaced. It was later discovered that the second ground support pole needed to be replaced. The Petitioner ordered one new pole for a cost of $59.00 dollars. That pole was then cut into two pieces to replace both ground support poles for the sign. All other existing parts of the sign were re-used. No new lumber or other materials were purchased for repair of the sign. Exhibit R-9 in evidence shows that the existing plywood vertical supports (wooden sign board) clearly appears to be an original portion of the sign and not new material. The three 2 x 6 horizontal stringers also clearly are re-used lumber from the original sign. One of them has a yellow tag on the end, commonly attached to pressure treated lumber when it comes from the lumber yard. The picture of the original, damaged sign depicted in R-7 also has the yellow tag attached on the end of the 2 x 6 stringer. That fact, together with the weathered appearance of that 2 x 6 stringer, as well as the other two stringers, shows that they are original material from the original sign. The two vertical 2 x 6's appear to be original material as well. Respondent's Exhibit 9 is a photograph depicting the back of the repaired sign. The vertical 2 x 6 support on the left side of the sign, as depicted in photograph R-9, appears brighter or newer looking than the other 2 x 6 structural members. However, it has a visible edge which appears to show weathering. There are also several old nail holes in the board, as well as a bent nail protruding from the rear of the board between it and the plywood vertical support or face of the sign. It thus appears to be a used structural member as well. Additionally, the horizontal stringer and plywood board at the bottom of the sign, on which the name Salter is attached, is clearly a used portion of the original sign and not new material. On balance it appears quite clearly that the only new structural members of the repaired sign are the two new poles which were cut from the original pole purchased for $59.00 dollars. Thus, the Petitioner has established by preponderant, persuasive evidence, including the depicition of the photographs in evidence, that the sign was repaired with substantially less than 50 percent new materials. In essence, it is now a sign composed of the original materials simply being hung on two new poles. Moreover, for purposes of the rule cited below, concerning the definition of a "destroyed" sign, 50 percent of the ground support poles were destroyed (i.e. broken). Thus it could be deemed a destroyed sign. In that case, although the Department is not asserting revocation based upon the value of the materials used in the repair of the sign, the "Florida Construction Order" in evidence, together with the testimony of Mr. McCurdy and Mr. Crawley, establishes persuasively that less than 50 percent of the value of the materials in the sign before the storm damaged it, were replaced in the repair work or, (37 percent). Thus by either measure of the manner of repair, the preponderant, persuasive evidence shows that the sign was properly repaired with less than 50 percent by quantity of new structural materials added to the sign and with less than 50 percent by value of new materials used in the sign repair, when compared to the value of the structural materials and members in the sign immediately prior to the storm damage. In Summary, the Salter General Manager, David McCurdy, ordered one pole to repair the sign. He ordered no vertical supports, braces, or stringers for the repair effort. He oversaw the repairs himself and was at the site while the repairs were being made. The single pole was cut into two pieces so that two ground support poles were replaced. The materials shown lying on the ground in Exhibits R-6 and R-7, were otherwise re-assembled and re-hung on the new poles. Salter assessed the damage at 37 percent by the value measurement. The value of the structural materials in the sign prior to the storm damage was $157.00 dollars. The cost to repair the sign's structure immediately after the hurricane was $59.00, for purchase of the pole. Thus the replacement materials to effect the repair constituted 37 percent of the value of the materials prior to the damage and the only new material incorporated into the repair sign structure was the single, $59.00 pole cut into two pieces. Therefore, it has not been proven by preponderant evidence that the sign was illegally repaired.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Transportation finding that permit number BB058 for the subject sign structure should remain in effect. DONE AND ENTERED this 19th day of January, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 19th day of January, 2007. COPIES FURNISHED: Laura Joyner Nye, Esquire Lindsay, Andrews, and Leonard, P.A. Post Office Box 586 Milton, Florida 32572 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0485 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Denver Stutler, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, Elgie Products (Elgie), is a partnership whose general partner is Richard J. Connolly, Sr. The mailing address of the business is 3000 Southwest 26th Terrace, Fort Lauderdale, Florida. At the present time, Connolly and his wife are engaged in the business of raising bees, making draperies and installing plexiglass under the name of Elgie Products. They also reside at the same location. Elgie's property consists of slightly more than four acres and lies one block south of State Road 84 and two blocks west of Interstate 95 in a small unincorporated pocket of Broward County, Florida. It is less than one-half mile from the Fort Lauderdale-Hollywood International Airport. The area is zoned M1 (light industrial, small manufacturing) and has only a few residential dwellings in the area including that of petitioner. A metal dump yard for wrecked automobiles lies just east of petitioner's property, a Days Inn Motel is on its north side, and DOT construction material and equipment associated with Interstate 595 lie to its south. By its application, petitioner seeks to place an outdoor sign on its property. The sign will be leased to an air carrier, and the revenues derived therefrom used to supplement the Connolly's income. After reviewing the application, respondent, Department of Transportation (DOT), issued proposed agency action on May 21, 1986 denying the application on the ground the sign would be within 500 feet of a restricted interchange. The denial prompted the instant proceeding. Through unknown and perhaps unfortunate circumstances, DOT decided to locate and construct Interstate 595 on an east-west alignment less than 1000 feet south of petitioner's property. In fact, the entrance ramp to I-595 will be situated less than 500 feet from the proposed site of petitioner's sign. Moreover, the sign will be visible to traffic using I-595. It is also located within 660 feet of I-595 right-of-way. Such a placement of the sign is impermissible under DOT's rules and governing statutes. Petitioner contends that DOT made an exception to its rules almost seven years ago when it approved an application filed by 3-M National Advertising Company to place an outdoor advertising sign at the intersection of State Road 84 and I-95 even though the sign was less than 150 feet from I-95 and was visible to traffic using that highway. In this regard, a DOT outdoor sign administrator acknowledged that he may have been in error when he approved the application in late 1979. However, the City of Davie has subsequently annexed the area where 3-M's sign is located, and 3-M is now exempt from DOT enforcement action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Elgie Products be DENIED. DONE and ORDERED this 9th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of September, 1986.
Findings Of Fact Petitioners are each corporations organized and existing under the laws of the State of Florida. McCain Sales of Florida, Inc. (hereinafter referred to ; McCain) has its principal place of business in Ft. Pierce, Florida. Annat, Inc. (hereinafter referred to as Municipal) has its principal place of business in Naples, Florida. The Department of Offender Rehabilitation is an agency as defined by Section 120.52, Florida Statutes. Petitioners McCain and Municipal are engaged in the business of, among other things, manufacturing and marketing metal traffic control signs and related supplies and hardware. The gross sales for such equipment by McCain from July 1, 1976 to June 30, 1977, to Florida municipalities and counties amounted to $628,484.06. During the same period McCain's total gross sales amounted to approximately 1.3 million dollars. Approximately 52 percent of McCain's total gross sales during that period were directly attributable to sales of metal traffic control signs and related supplies and hardware to Florida municipalities and counties. From February 1, 1977, to January 31, 1978, Municipal's gross sales of metal traffic control signs and related supplies and hardware to Florida municipalities and counties amounted to $167,425.87. During the same time Municipal's total gross sales were $292,277.88. Approximately 57.2 percent of principal's total gross sales during the foregoing time period were from the sale of metal traffic control signs and related supplies and hardware to Florida municipalities and counties. The evidence presented indicates that in 1974 the Department of Offender Rehabilitation (hereinafter referred to as Department) began consideration of the establishment of a metal sign manufacturing program as a correctional work program pursuant to Section 945.06, Florida Statutes. By letter dated May 14, 1976, Mr. Louie L. Wainwright, Secretary of the Department, stated to the president of Petitioner McCain that the Department was then considering the adoption of a sign manufacturing program as one of its correctional work programs. See Petitioners' Exhibit 6. By letter dated May 24, 1977, to the president of Municipal, Mr. T. E. Bronson, then Chairman of the Prison Industry Commission created by Section 845.065, Florida Statute 1977, stated ... that it may very well be that the establishment of a sign industry is too far along to be stopped at this point." See Petitioners' Exhibit 4. The Chief of Industries Operations for the Department, Mr. William H. Kelley, testified that the Department decided to implement the metal sign manufacturing program sometime in 1976. He further testified that when the Prison Industry Commission met in June, 1977, the Department had already adopted the program and decided to proceed with it. On January 18, 1978, the Department mailed an Invitation to Bid to suppliers of metal sign shop equipment which invitation set forth more than nine pages of equipment to he used in the manufacture of metal signs. See Petitioner's Exhibit 1. While the precise date on which the Department of Offender Rehabilitation finally decided to engage in the metal sign manufacturing program is not shown by the evidence, such a final decision had apparently not been made by May 14, 1976, judging from the representations in Mr. Wainwright's letter to the president of McCain, Petitioners' Exhibit 6. It further appears that a final decision by the Department bad been made by May 24, 1977, as evidenced by the testimony of Mr. Kelley and by Petitioners' Exhibit 4, wherein the Chairman of the Prison;. Industry Commission stated to the president of Petitioner Municipal that the establishment of a sign industry may be too far along to be stopped. Certainly it may be inferred as a matter of fact that the Department of Offender Rehabilitation had made a decision to implement as one of its correctional work programs the metal sign manufacturing program described above when it mailed its Invitation to Bid for the acquisition of metal sign shop equipment on January 18, 1978. Thus, it is found that as a matter of fact at some time between May 14, 1976, and January 18, 1978, the Department of Offender Rehabilitation determined that it would adopt and put into effect an industrial production and marketing program pursuant to Section 945.06, Florida Statutes, involving the manufacture of metal signs and that decision was probably made in 1976. The metal sign manufacturing program referred to herein includes the construction of a manufacturing plant for the manufacture of municipal traffic control signs and other signs and accessories, which plant will include production processes such as metal cutting, vacuum application of sheeting, beat pressure application, silk screening, and other processes, resulting in the production of such signs, and accessories, which the Department intends to sell to counties, municipalities, and other governmental entities, in addition to the State of Florida and its agencies. The evidence establishes that the Department foresees gross sales of approximately $250,000 in its first year or two of operation. The Department did not conduct an economic impact study using professionally accepted methodology to determine the impact of the metal sign manufacturing program on private industry. The Department made a good faith effort to survey the market by sending a questionnaire to all municipalities and counties, as well as state agencies asking for a sample of their annual bid request or annual needs in the area of "... road signs, street signs, parking signs, and etc. made from steel, aluminum and/or plastic." See Petitioners' Exhibit 9. As of June 21, 1977 the Department had received replies from six state agencies or institutions and only 25 of 392 municipalities and 3 of 67 counties. See Petitioners' Exhibit 8. It has been stipulated by the parties and is 1-C0 accepted by the Hearing Officer that in its decision to adopt a metal sign manufacturing program in the implementation of Section 945.06, Florida Statutes, the Department did not comply with the procedural requirements set forth in Section 120.54, Florida Statutes for the adoption of a rule.
