Findings Of Fact The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected. This outdoor advertising sign is owned by the Respondent, T. L. Carpenter, who is also the owner of the property upon which the sign sits. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed. THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 1986, in Tallahassee, Leon County, Florida WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. COPIES FURNISHED: Charles T. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. J. L. Carpenter P. O. Box 2641 Marathon Shores, Florida 33052 Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent?s Outdoor Advertising Permits should be revoked pursuant to section 479.08, Florida Statutes, because the associated sign has not remained substantially the same, has been disassembled and re-erected, or has been destroyed, as set forth in the Amended Notice of Intent to Revoke.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the State Highway System, the Interstate, and portions of the Federal-aid Primary System. Green?s Wrecker Service, begun in 1947, was one of the first wrecker services in Alachua County. Mr. Allen Green was the owner and operator. There was no precise testimony as to when Mr. Green first erected the advertising sign at issue here, but Mr. Green?s daughter, Pamela, vaguely remembered that happening: Well, I was seven or eight years old. I remember Daddy and Grandpa going down there after they opened up the road. It was woods there and we used to play on our bikes and I remember my Grandmother coming out and sitting beside the road because she was scared we was gonna get onto 301 because it was always woods back there before, and we could ride and we didn?t have her bothering us, you know. So when the woods got cleared out to 301, then, you know, Granny was sitting out there and daddy and grandpa went down there and done something, put that sign up, I guess. Based upon Pamela?s current age and her recollection, it can be roughly calculated that the sign was put up over 40 years ago. It is a small sign, about three feet by six feet, and has the words “Green?s Garage” in red letters and a smaller “Pennzoil” logo in yellow, along with a large arrow pointing toward the business. The sign sits at the intersection of US Highway 301 and 165th Avenue, the business being located about a hundred yards down 165th Avenue. The sign is important to the business because, due to the trees, one cannot see the actual building or cars at the business location from US Highway 301 until one is already at the 165th Avenue intersection, where one can finally see them through the area that has been cleared out for the road. Mr. Green turned the business over to Pamela before he died, and she has operated the business ever since. She subsequently married Mr. Gary Keen. Mrs. Pamela Green Keen incorporated the business as “Green?s Garage and Wrecking Service, Inc.” There was no evidence as to when the subsequent provision of state law or local ordinance with which the sign fails to comply was passed, but the parties stipulated that the sign is nonconforming, so it is clear that the sign was lawful when erected but could not be put up today. The sign was permitted as a wooden sign with a back-to- back configuration and two supports. That configuration has never changed. The sign was assigned tag numbers BE893 and BE894 by the Department. These tags look like small license plates that are posted on the sign and must be visible from the main travel-way. Mr. Tom Simmons is a senior outdoor advertising inspector for Cardno TBE Consultants (Cardno TBE), a contractor for the Department. Cardno TBE manages the outdoor advertising program for the State of Florida. Mr. Simmons has been employed with them for 12 years, and, before that, performed a similar job for four years with the Department. Mr. Simmons oversees 16 counties in northeast Florida, including Alachua County. Mr. Simmons was very credible in his testimony. Mr. Simmons testified that he was aware of the sign: In the due process of traveling from point A to point B on 301, I had seen it before. Like I stated earlier, after you have been out here a long time like I have, when structures disappear and go away, you pick up on it because it?s something that you are looking for constantly. On September 7, 2011, Mr. Simmons took a picture of the sign. It was down on the ground and was not erect. Mr. Keen testified that shortly before this, he had been having problems with vandals. The windshield of his tow truck had been shattered by a man whose car had been towed to Green?s Garage. That man was caught and ultimately paid restitution. A vehicle had also been stolen from Green?s Garage in June, and Mr. Keen or his wife had requested increased sheriff?s patrols at the business address in August, as evidenced by records from the Alachua County Sheriff?s Department. Mr. Keen testified that people often became upset when their cars were towed and that some were vindictive and would resort to vandalism. He said it was an unavoidable consequence of the business, since he towed cars for the Sheriff?s Department and the Florida Highway Patrol. Mr. Keen testified that he goes down 165th Avenue to US Highway 301, right past where the sign is located, almost every day. His testimony that the sign was not down for more than a day is accepted. Mr. Keen?s first action was to look for signs as to who had knocked it down, but he could not find any evidence such as cigarette butts, or cans, or footprints, so he decided it would do no good to call the police. Mr. Keen re-erected the sign. He did not have to reassemble or add to the materials on the sign in any way, since it was still intact. He just put it back up. The Department issued its original Notice of Intent to Revoke Sign Permit for Violation, dated October 26, 2011, alleging that the sign had been abandoned. Respondent denied this in its response to the Department and requested an administrative hearing. The Department did not request an administrative law judge within 15 days of Respondent?s request. Green?s Garage and Wrecker Service is substantially affected by the Department?s intended action to revoke the permits for the sign. If the permit is lost, the sign must be taken down and no new sign can be erected. Almost a year later, on October 18, 2012, Mr. Simmons took a picture of the sign which showed that it was back up in its original location. He testified that it appeared to be the same sign, constructed of the same materials as before. On March 28, 2013, the Department issued Green?s Garage an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules. At all times relevant to this proceeding, the sign remained substantially the same as it was on the date it became nonconforming. Even if it was determined that the sign did not remain substantially the same simply because it was down for a day or two, simply re-erecting the sign when no assembly or construction was required constituted reasonable repair and maintenance of the sign. The sign was never disassembled throughout the time relevant to this proceeding. Less than 60 percent of the upright supports of the sign were physically damaged at any time relevant to this proceeding. One pole was not damaged at all; the other had only very minor damage. The minor damage to one pole was not such that the normal repair practices of the industry would call for that pole?s replacement. Respondent never had an intention to abandon or discontinue the sign at any time relevant to this proceeding. The facts did not show that the sign structure ceased to exist. All the interrelated parts and material -- including the beams, poles, and stringers -- which were constructed for the purpose of supporting or displaying the message remained completely intact and never ceased to exist as an integrated structure.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Amended Notice of Intent to Revoke Sign Permit for Violation and allow the outdoor advertising permits to continue. DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2013.
The Issue What final agency action should the Department of Transportation take on Petitioner's Application for Outdoor Advertising Permit.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The proposed sign that is the subject of the instant controversy (Proposed Sign) is located off of I-95 in the City of Miami (City) at 328-334 Flagler Street on a parcel of land leased by Petitioner from CanPartners Realty (CanPartners Parcel). Section 10.4.5 of the City's Zoning Ordinance (Section 10.4.5), which has been in effect since 2002, prohibits "new signs of outdoor advertising," except in limited circumstances. It provides, in pertinent part, as follows: For the purposes of this section, "Outdoor advertising signs" are signs used in the conduct of the outdoor advertising business; an outdoor advertising business, for the purpose of this section, is defined as the business of receiving or paying money for displaying signs where the sign copy does not pertain to the use of the property, a product sold, or the sale or lease of the property on which the sign is displayed and which does not identify the place of business as purveyor of the merchandise or services advertised on the sign. Except as otherwise provided in Articles 4 and 10 and/or the City Code, or, pursuant to this subsection, no new freestanding "Outdoor advertising signs," as defined above shall be allowed. * * * Notwithstanding any provision of this Zoning Ordinance to the contrary, permits for outdoor advertising signs may be issued pursuant to a Settlement Agreement authorized by Resolution passed by the City Commission, in conjunction with the settlement of related litigation, which expressly authorizes issuance of such permits for said outdoor advertising signs, and then only under the terms and conditions of settlement agreements that result in a net reduction in the party to the settlement's number of outdoor advertising signs located in the City of Miami. . . . The City has entered into "Settlement Agreements" of the type described in the last paragraph of Section 10.4.5 with three sign owners: Carter Pritchett Hodges, Inc., d/b/a Carter Outdoor Advertising, Inc.; Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor; and Intervenor. The City does not have a such a "Settlement Agreement" with Petitioner. The City entered into its Settlement Agreement with Intervenor (City/CBS Settlement Agreement) on July 18, 2008. The City/CBS Settlement Agreement contains the following provisions, among others: 4. Amended Permits. In recognition of CBS's [Intervenor's] removal of the numerous Sign structures and Sign faces described in this Agreement and waiver of just compensation thereof, the City will amend a maximum of 15 existing sign permits (the "Amended Permits") to allow CBS to transfer the permit rights associated with such Signs to new locations with a maximum of two (2) Sign faces each on the terms and conditions set forth below: The City will amend up to a maximum of 15 permits for Signs based on CBS's removal of Signs on a two for one basis: for every two bulletin faces removed, one bulletin face may be erected with an Amended Permit. . . . * * * c. Upon application by CBS showing compliance with the provisions of this paragraph, the City will amend existing Sign permits to allow the transfer of permit rights associated with such Sign or Signs to locations within the same or a less restrictive Zoning District. For all Initial Amended Permits and Amended Permits, CBS will submit FDOT Form 575-010-04 to the City, which will be stamped on the date received. The City's signature on the FDOT Form 575-010-04 shall constitute approval of the location of the sign, and no further approvals from the City shall be required. All Sign permits will be processed "first in, first out," such that no other FDOT Forms may be signed or authorized for a subsequent application which would interfere with the location secured by a previously approved FDOT Form 575-010-04. If an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application. * * * 19. Miscellaneous. * * * f. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of the any successor or permitted assigns of the parties hereto. CBS shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by CBS will be valid unless: (1) the assignee shall execute an Agreement to be bound by the terms and conditions of this Agreement and to accept all of the rights and obligations of CBS under this Agreement; and (2) the assignment is approved in writing by the City Commission, which approval shall not be unreasonably withheld, delayed or conditioned. The parties acknowledge that the City Commission shall have the right to reject proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any such assignment shall not relieve CBS of its obligations under this Agreement . . . . Any attempted assignment in violation of this Section shall be void. In anticipation of the finalization of the City/CBS Settlement Agreement, Intervenor (through Joseph Little) and Petitioner (through Harkley Thorton) had signed, on May 1, 2008, a Letter of Understanding (LOU) "set[ting] forth the understanding between [Intervenor] and [Petitioner] concerning new sign locations to be utilized in conjunction with the Settlement Agreement between [Intervenor] and the City of Miami." The first numbered paragraph of the LOU explained: CBS is negotiating and attempting to finalize a Settlement Agreement with the City whereby the City will issue 15 amended permits for the construction of new monopole signs with double faces, on expressways located within the City, in return for which CBS will remove 2 existing (or previously removed) sign faces for each new sign face constructed pursuant to an Amended Permit, subject to the terms and conditions of the Settlement Agreement between CBS and the City. Paragraph 2 of the LOU read, in pertinent part, as follows: With respect to the Settlement Agreement with the City, CBS and OM [Petitioner] agree as follows: * * * Under the Settlement Agreement, CBS seeks to obtain 7 Initial Amended Permits (as defined in the Settlement Agreement) one of which is tentatively agreed to be located in Jose Marti Park. Provided there is no term in the Settlement Agreement and the City does not otherwise require CBS to develop a site in the Jose Marti Park, CBS will abandon its proposed Jose Marti Park site and instead accept a site owned by Brickell Land Development Company, located at approximately 300 SW 8th Street (the "Brickell Site"), which is or will be subject to a lease with OM that allows construction and operation of a sign in accordance with the terms of paragraph (2c) below. . . . Provided OM obtains four (4) additional sites for placement of signs pursuant to Amended Permits under the Settlement Agreement, CBS agrees to accept said four sites provided CBS deems each site to be commercially viable. . . . For each of the sites accepted by CBS, CBS will enter into a sub-lease agreement with OM, whereby OM will be the sub-lessor and CBS will be the sub-lessee. . . . Provided that OM produces the Brickell Partners Site and four (4) additionally Commercially Viable Locations, CBS will assign the rights to one (1) of its amended permits under the Settlement Agreement with the City. CBS will assign to OM, and OM will assume, CBS's rights and obligations under the Settlement Agreement to said amended permit except for CBS'[s] obligations pursuant to paragraphs (7a-7d), (8a), and (12a). CBS will provide for the removal of two (2) of its existing sign structures to allow the City to issue the said Amended Permit to OM under the Settlement Agreement. * * * h. CBS'[s] acceptance of the four (4) Commercially Viable Locations referenced in 2c above is expressly conditioned upon the City's approving all locations on Exhibits B and B-1, as amended from time to time, as appropriate removals for Amended Permits in the Settlement Agreement. The penultimate paragraph of the LOU (Paragraph 6) provided as follows: This letter is a Letter of Understanding and binding between the parties and establishes the major business points and conditions of the Parties' agreement for this transaction. However, it is not all inclusive in that it does not contain all the deal points. The Parties agree to expand upon this Letter of Understanding in good faith to prepare a full agreement that can be executed within thirty (30) days of the date of this Letter of Understanding. Such agreement shall be consistent with the terms of this Letter of Understanding and contain such further terms and conditions as are mutually acceptable to the Parties. However, the failure of the Parties to complete a full agreement shall not invalidate the terms of this Letter of Understanding or excuse either Party from performing its obligations and responsibilities as set forth herein. The record is devoid of evidence that Intervenor and Petitioner ever executed a "full agreement," as contemplated by paragraph 6 of the LOU. Intervenor has not executed (pursuant to Paragraph 2e. of the LOU), nor has the City Commission approved (pursuant to Paragraph 19f. of the City/CBS Settlement Agreement), any assignment to Petitioner of Intervenor's rights under the City/CBS Settlement Agreement (although Petitioner believes that it is entitled to such an assignment and has so argued in circuit court litigation in which it is currently involved with Intervenor). On May 2, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. [Intervenor] and Outlook Media of South Florida, LLC [Petitioner] have signed a letter of understanding dated May 1, 2008 (The "Agreement"). Please accept this letter as confirmation that in accordance with the terms of the Agreement, CBS Outdoors, Inc. consents to Outlook Media of South Florida, LLC filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on our behalf. Thereafter, Petitioner submitted to the City's Zoning Administrator, Lourdes Slazyk, (on the version of FDOT Form 575- 010-04 then in effect) Petitioner's Application, requesting that Ms. Slazyk complete and sign the "Local Government Permission" section of the form. Obtaining such "Local Government Permission" is among the prerequisites for receiving an outdoor advertising sign permit from the Department. To erect an outdoor advertising sign in the City after the Department issues a permit, a City building permit (which is "something other than" the "Local Government Permission" referred to above) is required. Ms. Slazyk completed and signed the "Local Government Permission" section of the form, as requested, on May 22, 2008. It was not until almost a year later that Petitioner's Application was submitted to the Department. In completing the form, Ms. Slazyk checked the box indicating that the "outdoor advertising sign identified in this application: [was] in compliance with all duly adopted local ordinances and has been or will be issued the necessary permits." She did so based upon her understanding that the application (which named Petitioner as the applicant) was actually being filed by Petitioner on behalf and with the consent of Intervenor (in accordance with Mr. Little's May 2, 2008, letter) and that Petitioner was "traveling under" the City/CBS Settlement Agreement. Had Intervenor not notified the City that Petitioner was, with Intervenor's consent, "filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on [Intervenor's] behalf," Ms. Slazyk would not have checked the "compliance" box on the form, given the requirement of Section 10.4.5 of the City's Zoning Ordinance that "permits for outdoor advertising signs" may be issued only "pursuant to a Settlement Agreement" of the type described in Section 10.4.5 (to which Petitioner, unlike Intervenor, was not a party). On August 28, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. herewith withdraws its blanket letter of consent dated May 2, 2008 authorizing the City to approve FDOT application forms by Outlook Media of South Florida, LLC on our behalf. A copy of that letter is attached. Henceforth, any FDOT outdoor advertising application form submitted to the City by Outlook must include a specific authorization from CBS Outdoor indicating our approval and authorizing the City to process the FDOT form pursuant to our Settlement Agreement with the City. Please feel free to contact me if you have any questions. By letter dated October 24, 2008, Intervenor (through its attorney, Glenn Smith, Esquire), advised the City, among other things, that it was "withdraw[ing]" certain applications for outdoor advertising sign permits from the Department, including Petitioner's Application, that either it or Petitioner, on Intervenor's behalf, had previously submitted to the City to obtain the "Local Government Permission" required for such a Department permit. On February 13, 2009, Petitioner (through its attorney, Amanda Quirke, Esquire) sent a letter to Ms. Slazyk, which read, in pertinent part, as follows: As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped received copies for our files. Thank you for your assistance. Intervenor had not authorized Petitioner to make such a request on Intervenor's behalf. Accordingly, (through Mr. Smith) it sent Ms. Quirke the following letter, dated February 18, 2009: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is submitted in response to your February 13, 2009, letter to Lourdes Slazyk at the City of Miami ("City") seeking the approval of the City of the Renewal Applications. CBS has issued no authorization to OM [Petitioner] to submit the Renewal Applications to the City. Therefore, the February 13, 2009 Letter is ultra vires, and OM is directed to withdraw same. If OM desires to obtain CBS's authorization to process the Renewal Applications to the City, OM is directed to submit to CBS a written request for authorization to do so. OM's written request for authorization should address, among other things, the following: CBS's original authorization to OM to submit the FDOT Application to the City was to authorize OM to make submissions on behalf of CBS. Please confirm that any submission of Renewal Application by OM to the City will likewise be on behalf of CBS. Many questions remain relative as the various locations identified in the February 13, 2009, Letter as to whether the locations are "commercially viable." See Attachment A hereto. Please contact the undersigned to schedule a meeting to discuss resolution of these remaining questions. Can Partners Realty: As you know, the City has agreed to approve the Lummis Site. Therefore, the CanPartners Realty site is no longer under consideration and is not to be renewed. OM is hereby specifically directed to take no action to renew the FDOT Application for this site. CBS and its representative are available to discuss the February 13, 2009 Letter, the Renewal Applications and the contents of this letter. If OM desires to discuss same, please contact the undersigned for that purpose. That same day (February 18, 2009), Intervenor (through Mr. Smith) also sent a letter to Ms. Slazyk, in which it stated the following: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is being sent to you on behalf of CBS in response to the February 13, 2009 Letter to you from counsel for OM. In the February 13, 2009 Letter, counsel for OM requests approval by the City of Miami (the "City") of the Renewal Applications under the CBS Settlement Agreement with the City. Please be advised that CBS has not authorized OM to present the Renewal Applications to the City. Therefore, CBS requests that the City take no action on the Renewal Application until the City receives further communications regarding same from CBS. Notwithstanding Intervenor's directive (communicated in its February 18, 2009, letter to Ms. Quirke) that "the CanPartners Realty site . . . not . . . be renewed," on that same date (February 18, 2009), Petitioner (through Ms. Quirke) sent a follow-up letter to Ms. Slazyk, which read, in pertinent part, as follows: In accordance with the request of CBS, please accept this revised request for the renewal of the outdoor advertising applications, originally submitted on February 13, 2009. This revised request is a clarification that Outlook is requesting the renewal of the approval of the following applications on behalf of CBS. As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media of South Florida, on behalf of CBS, is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped, received copies for our files. Thank you for your assistance. The following day, February 19, 2009, Ms. Slazyk wrote back to Ms. Quirke, stating the following: I am in receipt of a faxed letter with back up from your office dated February 13, 2009 and faxed again, as modified, dated February 18, 2009 requesting renewal of certain outdoor advertising signs. I am informing you that, per the attached letters from CBS, and their representatives, the request is not authorized. Petitioner appealed Ms. Slazyk's denial of its renewal request to the City Zoning Board, which upheld the denial. Petitioner thereafter took a further appeal to the City Commission, but Petitioner subsequently withdrew this appeal. It is the City's position "today" (as expressed by Ms. Slazyk at hearing) that Petitioner does not have "Local Government Permission" from the City for the Proposed Sign. On May 4, 2009, almost a year after Ms. Slazyk had signed the "Local Government Permission" section of Petitioner's Application, Petitioner's Application was submitted to the Department.5 The Department contracts with Cardno TBE "to do physical inspections of potential advertising sites" that are the subject of permit applications. For the past 11 years, Matt Barnes has been employed by Cardno TBE as an outdoor advertising inspector responsible for conducting such inspections for the Department. Mr. Barnes was assigned the task of inspecting the CanPartners Parcel (the site where, according to Petitioner's Application, the Proposed Sign would be located). Using two different distance measuring devices,6 Mr. Barnes measured the distance "along the highway [I-95]" from a point directly above the Proposed Sign location (as indicated by a "wooden stake [sticking] about two feet out of the ground" that had been placed there by Petitioner) to the "nearest permitted sign" on the same side of the "highway" (which was to the south and bore tag numbers 412 and 413).7 He "came up with 970 feet both times." On May 19, 2009, the Department issued its Notice of Denied Outdoor Advertising Permit Application, announcing its intention to deny Petitioner's Application because, in pertinent part, the "[Proposed] [S]ign [did] not meet spacing requirements" and the "Local Government Permission" was given "more than six (6) months prior to [the Department's] receipt [of the application]." Petitioner subsequently requested a "formal administrative hearing" on the matter. On May 21, 2009, Intervenor filed an Application for Outdoor Advertising Permit for a sign to be located at 350 Northwest Second Street in the City on a parcel leased to Intervenor by Lummus Park Associates, LLC (Lummus Sign). Because of its proximity to the location of the Proposed Sign, the Lummus Sign would violate minimum spacing requirements and thus not be permittable were Petitioner's Application to be granted. Accordingly, Intervenor's application is being held in "pending status" by the Department until final action is taken on Petitioner's Application.8 On June 17, 2009, Petitioner (through one of its principals, Santiago Echemendia, Esquire) sent a letter to the City, which read, in pertinent part, as follows: This law firm represents Outlook Media of South Florida, LLC ("Outlook"). As you may be aware, Section 14 of SB 360 provides that any local government issued development order or building permit that has an expiration date of September 1, 2008 through January 1, 2012, is extended and renewed for a period of two years following its date of expiration. In accordance with Section 4(c) of the Settlement Agreement between CBS Outdoor, Inc. and the City of Miami (attached), "[i]f an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application." FDOT also takes the position that the local government permission on FDOT Form 575-070-04 must be issued within 180 days of application to FDOT for an FDOT tag for a sign location. On behalf of Outlook, pursuant to Section 14 of Senate Bill 360, please accept this letter as notification that Outlook is extending the local government permission provided on FDOT Form 575-070-04 for the following locations: * * * Site: CanPartners Folio Number: 01-4137-036-0020 Local Government Permission: 05/22/08 FDOT 180 Day Expiration: 11/18/08 2 Year Extension of FDOT 180 Day Expiration: 11/18/10 Original 280 Day Expiration: 02/26/09 2 Year Extension of City of Miami Expiration: 02/26/11 * * * This 2 year extension notification applies to extend both the FDOT 180 Day Expiration, as well as the 280 Day Expiration set forth in the CBS Settlement Agreement. Therefore, the expiration date for the aforementioned sign locations is extended until the dates listed in the columns entitled "2 Year Extension of FDOT 180 Day Expiration" and "2 Year Extension of City of Miami Expiration." A copy of the FDOT Form 575-070-04 for each of the sign locations is attached for your convenience. . . . On October 5, 2009 (approximately five months after the filing of Petitioner's Application with the Department), the City Commission, on second reading, adopted a resolution (Resolution File Number 09-01061) to enable it to participate in the "pilot program" established by Section 479.07(9)(c), Florida Statutes, "under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if [certain] requirements . . . are met." The resolution, which is still in effect, provides as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION EXPRESSING ITS INTENTION TO PARTICIPATE IN A PILOT PROGRAM ALLOWING 1,000 FOOT SPACING OF OUTDOOR ADVERTISING SIGNS ALONG EXPRESSWAYS IN THE CITY OF MIAMI ("CITY"), SUBJECT TO CONDITIONS; FURTHER AUTHORIZING THE CITY MANAGER TO NOTIFY THE FLORIDA DEPARTMENT OF TRANSPORTATION OF THE CITY'S INTENTION TO PARTICIPATE IN SUCH PILOT PROGRAM. WHEREAS, Section 10.4.5 of the Miami Zoning Ordinance prohibits new freestanding "Outdoor advertising signs" as defined therein, except for Outdoor advertising signs permitted pursuant to a Settlement Agreement that results in a net reduction in the number of Outdoor advertising signs located in the City of Miami (hereinafter "qualified settlement agreement"); and WHEREAS, by separate Resolutions, the City Commission has authorized the City Manager on behalf of the City of Miami ("City") to enter into qualified settlement agreements with the following sign owners: Carter Pritchett Hodges, Inc. d/b/a Carter Outdoor Advertising, Inc. ("Carter"), Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor ("Clear Channel"), and CBS Outdoor, Inc. (hereinafter "CBS"); and WHEREAS, at the time the qualified settlement agreements were approved by the City Commission, Section 479.07(9)(a), F.S. (2008), required new Outdoor advertising signs to be located at least one thousand five hundred feet from any other permitted sign on the same side on an interstate highway (hereinafter "1,500 foot spacing"); and WHEREAS, by House Bill 1021, the Florida Legislature recently amended s. 479.07(9)(c), F.S., in the 2009 Legislative Session, to include the City within a pilot program permitting new Outdoor advertising signs on an interstate highway to be located within one thousand feet from any other permitted sign on the same side of the interstate highway (hereinafter "1,000 foot spacing") under certain enumerated conditions, to wit: "(c) Notwithstanding paragraph (a)(1), there is established a pilot program in Orange, Hillsborough, and Osceola Counties, and within the boundaries of the City of Miami, under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if all other requirements of this chapter are met and if: The local government has adopted a plan, program, resolution, ordinance, or other policy encouraging the voluntary removal of signs in a downtown, historic, redevelopment, infill, or other designated area which also provides for a new or replacement sign to be erected on an interstate highway within that jurisdiction if a sign in the designated area is removed; The sign owner and the local government mutually agree to the terms of the removal and replacement; and The local government notifies the department of its intention to allow such removal and replacement as agreed upon pursuant to subparagraph 2." and WHEREAS, the City Commission deems it in the best interest of the City to participate in the pilot program authorized by s. 479.07(9)(c), F.S. (2009), which would permit 1,000 foot spacing for Outdoor advertising signs under the guidelines provided in this Resolution; NOW, THEREFORE BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. 2. Pursuant to s. 479.07(9)(c)(2), F.S. (2009), the City hereby adopts a pilot program encouraging the voluntary removal of signs within the boundaries of the City, which provides, subject to the conditions stated below, for a new or replacement sign to be erected on an interstate highway, with 1,000 foot spacing, if other Outdoor advertising signs within the boundaries of the City are removed. Section 3. Any sign owner seeking permission to erect an Outdoor advertising sign with 1,000 foot spacing under this pilot program shall meet the following conditions: The sign owner must have a qualified settlement agreement with the City; Any application for a new sign under the pilot program must be in accordance with all terms and conditions of the qualified settlement agreement unless otherwise specified in these conditions; In no event may an application for a new sign under the pilot program exceed the limitation on the number of signs otherwise permitted under the qualified settlement agreement; The duration of the pilot program will not exceed the term of the qualified settlement agreement; No LED Sign may be erected with 1,000 foot spacing unless allowed by an amendment to the sign owner's qualified settlement agreement pursuant to applicable provisions of the Miami Zoning Ordinance; Sign owners must specify in advance of applying for a 1,000 foot spacing application the locations of the signs proposed to be removed or already removed; Sign owners may not be delinquent on any financial obligation to the City as per their qualified settlement agreement; All Outdoor advertising signs erected with 1,000 foot spacing shall be designed with aluminum plating (example attached) or be subject to design review per Manager's designee or designees. Section 4. Should s. 479.07(9)(c), F. S. (2009) be repealed by the Florida Legislature, this pilot program shall automatically expire. Section 5. The City Manager is authorized (1) to notify the Florida Department of Transportation of the City's intention to allow removal and replacement of Outdoor advertising signs under 1,000 foot spacing as provided in this Resolution. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. Petitioner has not entered into "a qualified settlement agreement with the City" providing for the removal and replacement of outdoor advertising signs (as required by Section 3(a) of Resolution File Number 09-01061), nor has it at any time, much less "in advance" of having submitted its application (as required by Section 3(f) of Resolution File Number 09-01061), "specif[ied]" what sign(s) would be removed and replaced if the Proposed Sign were to be permitted. In or around November 2009, Petitioner retained the services of Mario Prats, a Florida-licensed surveyor since 1982, to measure how far the Proposed Sign location was to the nearest existing sign directly to the south of this location. When Mr. Prats went to the CanPartners Parcel, he did not see the stake that had been there in May 2009, when Mr. Barnes had done his measurements; nor did he see any other object marking the location of the Proposed Sign. He relied on a "drawing" to "approximate" where the sign would be. Using a "Topcon [measurement] device" and measuring, not along I-95, but the ramp to I-95, Mr. Prats determined that the distance between the Proposed Sign location and the closest sign south of this location was 1,032 feet. The only measurements offered and received into evidence to establish the distance between the Proposed Sign location and the nearest permitted sign (on the same side of the highway) were those taken by Mr. Barnes and Mr. Prats (as discussed above). Neither Mr. Barnes, nor Prats, determined that this distance was 1,500 feet or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order denying Petitioner's Application for the reasons set forth above. DONE AND ENTERED this 11th day of August, 2010, 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 11th day of August, 2010.
The Issue Whether the sign of Petitioner, White Advertising International, should be removed by the Respondent, Department of Transportation, for violation of Section 479.07(1) and Section 479.11(2), Florida Statutes, and the rules and regulations promulgated thereunder.
Findings Of Fact A notice of violation was sent by the Respondent, Department of Transportation, to the Petitioner, White Advertising International, on March 21, 1977, citing an outdoor advertising sign owned by the Petitioner located 1.97 miles west of U.S. #1, State Road 50 E/B with copy "Real Estate Service." The violation noted that the sign violated Section 479.071(1), Florida Statutes, and Rule 14ER77-09 (now Rule 14-10.04) and Section 479.11(2), Florida Statutes, and Rule 14ER77-10, 11 (now Rule 14-10.05 and 14-10.06). There is no dispute as to the location or copy or ownership of the subject sign. It is not in a zoned business, commercial or industrial area and is outside an urban area. The sign does not conform to the current setback requirements. The sign has a permit tag dated 1971, the only permit tag on the sign. No application was alleged to have been made for permit or annual fee paid or offered subsequent to 1971 until the application noted in 4, infra. A sign permit application and annual renewal was processed by White Advertising International dated January 21, 1977. The application was an annual renewal for the year of "19 72-1976." The printed application form stated that, "The signs listed above meet all requirements of Chapter 479, Florida Statutes. Respondent, by its outdoor advertising section administrator, refused to grant the permit on the grounds that the sign which had been erected prior to the enactment of the current setback regulations and probably in the year 1967 had had no application for permit or annual fee paid since 1971 and therefore having become an illegal sign, no permit could be issued. The Petitioner sign company introduced into evidence a letter dated February 28, 1977, from Respondent, Department of Transportation, through its property management administrator which indicated that the State had previously contended the subject sign was built on an unplatted street and had to be removed without compensation but that it was discovered such was not the case and that the State then offered to reimburse Petitioner for relocation costs. Petitioner did not remove the sign and the letter states that the current position of the Respondent State is: That the sign is on the right of way, contrary to Section 339.301, Florida Statutes; Has no current permit; contrary to Section 479.07(1), F.S. Violates Section 479.13, Florida Statutes, as having been constructed, erected, operated, used and maintained without the written permission of the owner or other person in lawful possession or control of the property on which the sign is located; and The sign therefore is an illegal sign and must be removed by Petitioner without compensation. Respondent contends: that the sign is illegal, having failed to be permitted since the year 1971; that it has one pole of the sign pole on the right of way contrary to Section 339.301; that it has no lease contract as required by Section 479.13; that Respondent has no authority to renew delinquent permits; that once a sign becomes illegal a new permit cannot reinstate its nonconforming status. Petitioner, White Advertising International, contends: that it should be granted a permit inasmuch as permits for some signs had been granted by the Respondent although the annual permit fee was not timely made.
Recommendation Remove subject sign if the same has not been removed within thirty (30) days from the date of the Final Order. DONE and ORDERED this 6th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire White Advertising International Post Office Box 626 Titusville, Florida
The Issue The issue in this case is whether Petitioner’s Outdoor Advertising Permit Applications should be denied due to application deficiencies, and because the signs are located adjacent to a designated scenic highway.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the state highway system, interstate highway system, and federal-aid primary highway system. U.S. Highway 1 is a federal-aid primary highway that runs in a generally north/south direction along the east coast of Florida. In April l995, the Department issued outdoor advertising sign permit tag number BK459 to Town & Country Realty for an outdoor advertising sign (the “original sign”). The original sign was constructed adjacent to and on the west side of U.S. Highway 1 in Sebastian, Florida (the “property”). Records maintained by the Department during the period of the original sign’s existence, i.e., the Department’s outdoor advertising database from July 31, 2002, indicate that the original sign was located at U.S. Highway 1 milepost 18.496. That evidence, created contemporaneously with the sign’s existence, and before any controversy regarding the sign arose, is accepted as the most persuasive evidence of the precise location of the original sign. Mr. Pye testified that outdoor advertising sign permits are issued for a specific location, rather than for any location on a parcel of property. Given the precise spacing requirements for signs (see, e.g., section 479.07(9) and section 479.11), and the permitting of signs to the thousandths of a mile, Mr. Pye’s testimony is accepted. The original sign was located against a backdrop of vegetation. The original sign was single-sided with a north- facing sign face. As such, the original sign could normally be seen only from vehicles traveling southbound on U.S. Highway 1. On June 13, 2000, U.S. Highway 1, from milepost 14.267 to milepost 22.269 was designated as the Indian River Lagoon State Scenic Highway. The scenic highway designation included the stretch of U.S. Highway 1 on which the property fronts. On March 18, 2004, Henry Fischer & Sons, Inc./Town & Country Realty sold the property and the original sign to Petitioner. Daniel Taylor, a licensed real estate broker, worked on the transaction that led to Petitioner’s ownership of the property. He indicated that the property was desirable because it was clean, cleared, and demucked, and because it had the permitted original sign as an attractive asset, since the sign provided an income stream that could be used to pay property taxes. Eric Fischer, who was a director of Town & Country Realty, testified that, when the property was sold to Petitioner, the original sign was intended “to go with the property.” Upon the sale of the property and the original sign, Petitioner believed that Town & Country Realty would notify the state of the sale of the sign, and that he would thereafter be contacted by the state. Mr. Taylor testified that he and Petitioner called the Department and determined that Petitioner “could just step into the Fischer's shoes.” Based on the testimony of Petitioner and Mr. Taylor, Petitioner knew, or should have known, that the Department had regulatory oversight over the sign. An Outdoor Advertising Permit Transfer Request form is required to be submitted to the Department in order to transfer a sign permit from one person to another. No Outdoor Advertising Permit Transfer Request form was submitted for permit tag number BK459. Petitioner was never contacted by the state regarding the sale of the sign. Nonetheless, Petitioner continued to lease the sign and, as detailed herein, to replace and move the sign after the hurricanes of 2004. In September and October 2004, Hurricanes Frances and Jeanne struck Sebastian, Florida, very badly damaging the original sign. The wooden supports were flattened and no longer usable, and the sign was “pretty demolished.” Petitioner testified that he was told by an official of Indian River County to relocate the original sign to keep it from proximity of trees that could, in the event of a recurrence of the 2004 storms, topple and destroy the sign. The testimony, which was intended to prove the truth of the matter asserted, i.e., that Petitioner was directed by a governmental representative to relocate the sign, was uncorroborated by evidence that would be admissible over objection in a civil trial. Petitioner hired a person to rebuild a sign on the property. When the sign was rebuilt, it was not replaced at its original location at milepost 18.496. Rather, the “rebuilt sign”1/ was moved to the cleared center of the property at milepost 18.535. Instead of a single-faced sign normally visible to northbound traffic, the rebuilt sign was a double-faced sign, with sides facing north and south. As such, the rebuilt sign could be seen by vehicles traveling U.S. Highway 1 in either direction. The original sign had four equally-spaced square support posts. The rebuilt sign has three equally-spaced round, and more substantial, support poles. The rebuilt sign has 11 horizontal stringers on each face, with each stringer secured to the three support posts. The stringers are uniform in appearance. The photographs of the rebuilt sign clearly show all of the stringers on one side, and some of the stringers on the other. The stringers show no evidence of having undergone storm damage, or of having been secured to support posts at different points along the stringers. The preponderance of the evidence supports a finding that the stringers were -- as were the posts -- new, stronger, intact materials when the rebuilt sign was constructed, and were not materials salvaged from the remains of the original sign. The original plywood facing on the original sign was replaced with vinyl facings on the rebuilt sign. As a result of the foregoing, a preponderance of the evidence indicates that the rebuilt sign was a new sign erected of entirely new materials, and was not established as a result of maintenance or repair of the original sign. After the March 18, 2004, sale of the property and the post-hurricane erection of the rebuilt sign, Town & Country Realty continued to receive renewal billing from the Department for the original sign, along with several other signs owned by Town & Country Realty. Town & Country Realty, having sold the property on which the original sign was located and having no apparent interest in maintaining its other signs, did not pay the renewal bills. On January 31, 2005, the Department issued a Notice of Violation and Order to Show Cause Non-Payment (“NOV”) to Town & Country Realty. The NOV provided a grace period of 30 days within which the license and permits could be renewed, subject to a penalty. Town & Country Realty did not renew the license or permits. On March 7, 2005, the Department issued a Final Notice of Sign Removal, noting that Town & Country Realty had not made payment for renewal or request an administrative hearing to contest the NOV. As a result, Town & Country Realty was given the option of either petitioning for reinstatement of the license and permits, or removing the signs, including the sign bearing permit tag number BK459. Failure to exercise one of the options within 90 days was to result in the removal and disposal of the sign by the Department. On March 22, 2005, as a result of the continued requests for payment, Town & Country Realty submitted an Outdoor Advertising Permit Cancellation Certification form (“Cancellation Certification”) to the Department for permit tag number BK459. The Cancellation Certification was received by the Department on March 24, 2005. The Cancellation Certification was signed by Carl Fischer, president of the permit holder, Town & Country Realty. Mr. Fischer indicated that it was the permit holder’s intent “that the above-referenced Permit(s) be cancelled,” and that “all entities with a right to advertise on the referenced sign have been notified of the permit cancellation.” In the “Date Sign Removed” field of the form, Mr. Fisher wrote “see below.” In the bottom margin of the form, Mr. Fischer noted that the sign had been destroyed by one of the 2004 hurricanes, and that “new owner rebuilt sign and I removed BK459 tag and enclosed it.” The Cancellation Certification did not provide any information regarding the rebuilt sign or whether it was a sign that required a permit from the Department,2/ nor did it provide the name, address, or other identifying information regarding the “new owner.” It was not clear when Mr. Fischer removed permit tag number BK459, but it was nonetheless removed and returned to the Department with the Cancellation Certification. The Cancellation Certification was not intended by Mr. Fischer to affect Petitioner’s rights or interest in the rebuilt sign, but was a means of stopping renewal bills from being sent to Town & Country Realty. A Cancellation Certification may be conditioned upon issuance of a new sign permit, provided the Cancellation Certification is submitted along with an outdoor advertising permit application. The Cancellation Certification gave no indication that permit tag number BK459 was being conditionally canceled as a requirement for issuance of a new permit, and was not accompanied by an outdoor advertising permit application. On March 24, 2005, permit tag number BK459 was cancelled. From 2005 until June 2014, the rebuilt sign remained in place without inquiry from the Department, during which time Petitioner continued to lease and receive income from the sign. No transfer of or application for a sign permit for the rebuilt sign was filed, and no payment of annual fees was made. No explanation was provided as to why the March 7, 2005, Final Notice of Sign Removal was not enforced, or why the rebuilt sign, which has at all times been clearly visible from U.S. Highway 1, was allowed to remain in place for nearly a decade despite having no affixed permit tag. On or about May 28, 2014, Mr. Johnson, who was on patrol in the area, noticed that the advertising on the rebuilt sign had been changed. The change caught his attention, so he reviewed the Department’s outdoor advertising sign database to determine whether the sign was permitted. He confirmed that the rebuilt sign was not permitted. On June 5, 2014, Mr. Johnson affixed a “30-day green notice” to the rebuilt sign, which provided notice of the Department’s determination that the sign was illegal, and was to be removed within 30 days. Failure to remove the sign was to result in the removal of the sign by the Department. On June 9, 2014, the Department issued a Notice of Violation - Illegally Erected Sign (NOV) to Petitioner for the rebuilt sign. Petitioner did not submit a hearing request regarding the NOV. Rather, Petitioner called the telephone number that was listed on the NOV. He spoke with someone at the Department, though he could not remember who he spoke with. Petitioner was advised to file an application for the sign, a remedy that is described in the NOV. On December 1, 2014, Petitioner submitted Outdoor Advertising Permit Application Nos. 61203 and 61204 for the northward and southward faces of the Current Sign at milepost 18.535. Petitioner subsequently submitted additional information, including local government approval, in support of the application. On December 18, 2014, the Department issued a Notice of Denied Outdoor Advertising Permit Application for application Nos. 61203 and 61204 (“notice of denial”) to Petitioner. The bases for the notice of denial were that the property’s tax identification numbers submitted in various parts of the application did not match, thus constituting “incorrect information” in the application, and that the rebuilt sign is located on a designated scenic highway, thus prohibiting issuance of the permit. In the Pre-hearing Stipulation filed by the parties, the Department, though referencing “incorrect information” as a basis for the December 18, 2014, notice of denial, concluded its statement of position by stating that “[i]n sum, the Department properly denied [Petitioner’s application] as the sign is located on a scenic highway.” That focus on the scenic highway issue in the Pre-hearing Stipulation could, of itself, constitute a waiver and elimination of other issues, including that of incorrect information. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). However, looking beyond the Pre-hearing Stipulation, the issue of incorrect information was not the subject of testimony at the final hearing, finds no substantial support in the documentary evidence, and made no appearance in the Department’s Proposed Recommended Order. The record in this proceeding does not support a finding that Petitioner provided “incorrect information” in his application, or that such “incorrect information” supports a denial of the application. On February 12, 2015, Petitioner filed a request for an informal administrative hearing with the Department to contest the notice of denial. The request for hearing included affidavits from Petitioner and Henry A. Fischer, a vice-president of Town & Country Realty, each of which provided that Town & Country Realty “submitted to the governmental authorities included but not limited to the Florida Department of Transportation notice of the transfer of the property and the sign permit to Mr. Daddano as well as his correct mailing address of 15 Lakeside Lane, N. Barrington, IL 60010.” It is not known whether the N. Barrington, Illinois, address was that of Mr. Fischer or that of Petitioner. Regardless, no such notice of transfer, or any other document bearing the referenced address, was introduced in evidence or discussed at the final hearing. The preponderance of the evidence indicates that the March 22, 2005, Outdoor Advertising Permit Cancellation Certification, with the notation described in paragraph 30 above, was the only notice provided to the Department regarding the disposition of permit tag number BK459. By June 4, 2015, the advertising copy that caught Mr. Johnson’s attention had been removed and replaced with a “This Sign For Rent” covering. By no later than November 17, 2015, well after the Department issued the notice of denial, and without any other form of approval or authorization from the Department, Petitioner had the rebuilt sign “pivoted” in roughly its existing location, so that it is now parallel to U.S. Highway 1. As such, only the side of the sign facing U.S. Highway 1 is visible from the highway, making it a “one-way reader” as opposed to a two-sided sign. Nonetheless, unlike the original one-sided sign, which was perpendicular to the highway against a backdrop of vegetation, the pivoted rebuilt sign can be seen by traffic traveling in either direction on U.S. Highway 1.3/
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order denying Outdoor Advertising Permit Application Nos. 61203 and 61204. DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2016.
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 17th day of December, 1997.
The Issue Whether the Outdoor Advertising Sign owned by the Petitioner qualifies for permitting as a non-conforming sign.
Findings Of Fact On August 5, 1996, the Department issued a notice of Violation of an illegally erected sign to Clarence E. Adams. The sign in question was located 9.240 miles south of the line between Georgia and Florida on real property that is now and always has been zoned agricultural. The property upon which the sign is located was purchased by Clarence Adams and his brother, Dennis C. Adams, in 1976. The sign was on the property when they purchased the property; and, although they did not own the sign, they have derived continually revenue from the rental of the property upon which the sign is located since 1976. The sign has been maintained in it present form since 1976 by its owner(s). The subject sign had never been cited previously by the Department for violation of the outdoor advertising statutes. The subject sign is located at mile post 9.240. The sign is not in the Department’s right of way. The sign is not a danger to the traveling public. The sign is located adjacent to and can be seen from the main traveled way of Interstate 75 which is a federal highway that is open to the public. The current owner, Ray Sheffield, testified and did not claim to have a valid permit. Clarence Adams admitted that he had never applied for such a permit. The Department proved by testimony and evidence that the subject sign does not have a valid outdoor advertising permit, and there is no record by the Department that it ever had a valid permit. Clarence Adams proved that the sign was at its current location in 1976 when Adams and his brother purchased the property. Adams proved that a sign was in that location as early as 1975. The Department and the Federal Highway Administration entered into an agreement in 1972 that prohibited the erection of outdoor advertising signs along federal highways in areas zoned agricultural. The Petitioner did not prove that the sign was erected prior to the agreement between the Department and the Federal Highway Administration in 1972.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding: That the outdoor advertising sign, which is the subject of the notice of violation and which is located at mile post 9.240, does not have a permit, is in violation of the law, and is not qualified to be grand-fathered in and permitted; and That the owners of the real property upon which the subject sign is located and putative owner of the sign, Ray Sheffield, be directed to remove the sign within 30 days; and That the owners of the real property be advised that, if the subject sign is not removed, the Department will seek an order of a court of competent jurisdiction directing the removal of the sign and assessing costs for obtaining the court’s order and the costs of removing the sign. DONE and ENTERED this 22nd day of May, 1997, in Tallahassee, Florida. STEPHEN F. DEAN 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 22nd day of May, 1997 COPIES FURNISHED: Kenneth Scaff, Jr., Esquire Post Office Drawer O Jasper, Florida 32052 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450
Findings Of Fact On November 3, 1982, outdoor advertising sign permits AR946-06 and AK947-06 were issued by the Department of Transportation to Sandy Advertising Company. The permits were for a location on the west (north) side of U.S. Highway 90 approximately two miles east of its intersection with U.S. Highway 29 within the city limits of Pensacola, Florida. Sandy Advertising Company transferred those permits to Lamar Advertising Company of Pensacola, Inc. Annual renewal payments have been made each year in a timely manner by Lamar Advertising Company of Pensacola, Inc. No permit tags have been displayed at the Lamar sites and no sign has been built or maintained at the Lamar sites since issuance of the permits. Without having submitted an application for a permit to the Department of Transportation, Outdoor Media of Pensacola, Inc., obtained a building permit from the City of Pensacola for the erection of an outdoor advertising sign located in Escambia County approximately 3,790 feet east of State Road 296 on the north side of U.S. Highway 90. Pursuant to the building permit, Outdoor Media erected a sign at that location. The sign had an east and a west face and was less than 500 feet from the site for which permits AK946-06 and AK947-06 were issued. Each face of the sign required a separate permit from the Department of Transportation. Learning of the erection of Outdoor Media's sign, the Department notified Petitioner to remove it. Instead Outdoor Media applied for two sign permits for each face of the sign. On August 8, 1988, the Department of Transportation received Petitioner's applications for a state outdoor advertising permit. The applications were for each face of the sign located on U.S. 90 (Scenic Highway), a federal aid primary highway in Pensacola, Escambia County, Florida. The applications were denied on the ground that two other permits, permit AK946- 06 and permit AK947-06, had been issued to Lamar Advertising of Pensacola, Inc., for a location on the same side of the highway within one thousand feet of Petitioner's site. The spacing impediment caused by the earlier permits is the sole basis for denial of Petitioner's permit applications by the Department of Transportation. Petitioner meets all other permit requirements. In 1984, the legislature extensively revised Chapter 479, Florida Statutes. See Chapter 84-227, Laws of Florida. Of particular concern in this proceeding are the changes to Section 479.07, Florida Statutes, and whether those changes apply to permits AK946-06 and AK947-06. The revisions to this section introduced very specific tag display as well as sign erection and maintenance requirements for all permits. The revisions increased the fee schedules and provided that all permits expire annually on January 15. Section 479.07, Florida Statutes, as amended states in part: (5)(a) For each permit issued, the department shall furnish to the applicant a serially numbered permanent metal permit tag. The permittee is responsible for maintaining a valid permit tag on each permitted sign facing at all times. The tag shall be securely attached to the sign facing or, if there is no facing, on the pole nearest the highway; and it shall be attached in such a manner as to be plainly visible from the main-traveled way. The permit will become void unless the permit tag is properly and permanently displayed at the permitted site within 30 days after the date of permit issuance. If the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the department may not issue a new permit to that permittee for the same location for 270 days after the date on which the permit became void. (b) If a permit tag is lost, stolen, or destroyed, the permittee to whom the tag was issued must apply to the department for a replacement tag. Upon receipt of the application accompanied by a service fee of $3, the department shall issue a replacement permit tag. A permit is valid only for the location specified in the permit. Valid permits may be transferred from one sign owner to another upon written acknowledgment from the current permittee and submittal of a transfer fee of $5 for each permit to be transferred. However, the maximum transfer fee for any multiple transfer between two outdoor advertisers in a single transaction is $100. A permittee shall at all times maintain the permission of the owner or other persons in lawful control of the sign site to have and maintain a sign at such site. (8)(a) All licenses and permits expire annually on January 15, and all license and permit renewal fees are required to be submitted to the department by no later than January 15. On or before November 1 of each year, the department shall send to each permittee a notice of fees due for all permits which were issued to him prior to September 30. Such notice shall list the permits and the permit fees due for each sign facing. The permittee shall, no later than January 1 of each year, advise the department of any additions, deletions, or errors contained in the notice. Permit tags which are not renewed shall be returned to the department shall be accounted for by the permittee in writing, which writing shall be submitted with the renewal fee payment. (b) If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative to these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit. If the permittee submits payment as required by the violation notice, his license or permit will be automatically reinstated and such reinstatement will be retroactive to January 15th. If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal. (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting V-type, back-to-back, side- to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main- traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main- traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Nothing in this subsection shall be construed so as to cause a sign which is conforming on the effective date of this act to become nonconforming. The effective date(s) of the amendments to Section 479.07, Florida Statutes, is stated in Section 27 of Law 84-227. Section 27 specifically and explicitly made permits issued prior to June 30, 1984 subject to the new provisions of Law 84-227. Section 27 states: This act shall take effect October 1, 1984, except that the amendments to Section 479.07 F.S. shall take effect July 1, 1984; however, any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. In spite of the language of Section 27, it is DOT's interpretation that for permits issued prior to July 1, 1984, permittees are not required to display tags within thirty (30) days and erect signs within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with Sections 479.07(5)(b) and (8)(a), Florida Statutes. While DOT's interpretation is not in writing and has not been promulgated as a rule pursuant to Sections 120.54 or 120.55, Florida Statutes, it is applied statewide and has been held to be an invalid unpromulgated rule in Case NO. 5227R, Final Order issued December 29th, 1988. DOT relies upon the definition of "non-conforming" signs given in Section 479.01(12), Florida Statutes. Section 479.01(12), Florida Statutes, states in part: `Nonconforming sign' means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions. [Emphasis supplied.] 1/ DOT does not rely upon the exceptions listed in Section 479.16, Florida Statutes, as amended by Chapter 84-227. The exceptions are numerous, but do not specifically enumerate "Pre-July 1, 1984 permits." It is DOT's view that permits issued before July 1, 1984, are valid with or without a sign being erected or tags maintained or displayed. These "secret signs" can only be discovered after the application is submitted and DOT checks its computer records. The effect of DOT's interpretation is that pre- 1984 outdoor advertising sign permits can exist into perpetuity without the holder thereof ever erecting a sign or posting a metal tag as long as the permittee renews its permit. This interpretation is directly opposed to the legislature's purpose in enacting the 1984 amendments, i.e., the prevention of advertisers stockpiling unused sites and permits. Moreover, this interpretation is contrary to the pre- or post-1984 statutory language and is not a reasonable interpretation of the statute. DOT bases it's interpretation on the ground that the constitution prohibits the retroactive application of the 1984 amendments to permits existing prior to the effective date of those amendments. DOT did not offer any evidence as to the accuracy of its view on the requirements of the constitution. Failing such evidentiary support, DOT has failed to carry its burden of proof when utilizing an unpromulgated rule on a case by case basis. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause. Section 120.57(1) Florida Statutes. Section 479.07, Florida Statutes, was amended by Chapter 84-227, Laws of Florida, to require that parties obtaining outdoor advertising permits post their permit tags within thirty (30) days and erect their signs within two hundred seventy (270) days or their permits would automatically become void. The amendment became effective July 1, 1984. The amendment also expressly and explicitly provided for treatment of pre-July 1, 1984 permits by stating" . . . any permit or license which is valid and applicable as of June 30, 1984, shall remain valid and applicable until January 15, 1985, unless the license or permit earlier expires or is revoked. [Emphasis supplied]. Section 479.01(12) only makes exceptions for nonconforming "signs lawfully erected." Section 479.07(9)(c) only provides that nothing in subsection (9), pertaining to spacing requirements or permitting of new signs after July 1, 1984, may be construed to cause a sign which is conforming on the effective date of the Act to become nonconforming. See the definition of "sign" contained in Section 479.01(14), Florida Statutes, and of "erect" contained in Section 479.01(4), Florida Statutes. However, in spite of the clear language of the statutes, DOT interprets the term "permitted signs" as including permits issued prior to July 1, 1984, but which have no sign erected on the site. DOT has placed an interpretation upon the statutes that is not apparent from their language. The plain language of Sections 479.01(12) and 479.07(9)(c) only applies to signs which have been constructed on the permit site. The sections do not apply where no sign has been constructed. Since no signs were ever erected on the sites covered by permit AK946-06 and AK947-06 neither Section 479.01(12) nor 479.07(9)(c) applies to Lamar's permits. Further, DOT interprets the amendment to Section 479.07, now codified as Section 479.07(5)(a), requiring permit display and sign erection within a specified time period, to be applicable only to permits initially issued after the effective date of July 1, 1984. The agency has not enforced that subsection against preexisting permits and renewals of such preexisting permits, irrespective of whether or not a sign has ever been erected on the permitted site. However, the agency has applied and enforced against preexisting permits all other portions of the amendments, including but not limited to the mandatory recurring uniform annual January 15 renewal date and increased renewal fee with regard to preexisting permits. The agency has taken this approach on the grounds that the constitution prohibited the amendment from being applied retroactively to such preexisting permits. In Administrative Case NO. 88-5227R, this interpretation was held to be an invalid unpromulgated rule. However, agencies have the choice of properly promulgating rules and applying them with the full force and effect of law or of fully explicating those policies by demonstrating the policies' reasonableness and factual accuracy on a case by case basis in Section 120.57 proceedings. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Amos v. Department of Health and Rehabilitative Services, 444 So.2d (Fla, 1st DCA 1983); Gulf Coast Home Health Services Of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987). As noted earlier, the sole reason for DOT's policy was that it was required by the constitution. Such a bare bones claim as "the constitution requires it" is tantamount to the claim that was asserted in Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980) that a previous statutory interpretation was "wrong as a matter of law." In Florida Cities, no record foundation was made for the non-rule policy being followed in that case. The Florida Supreme Court held that such a rationale was not sustainable absent adequate record support for the application of non-rule agency policy. In this case, DOT has failed to affirmatively show the reasonableness and factual accuracy of the policy that sign permits which were issued prior to July 1, 1984, should not be subject to Section 479.07(5), Florida Statutes, enforcement and should be treated as if they constituted, erected and maintained signs for purposes of Section 479.07(9), Florida Statutes. It is doubtful that DOT could ever show the accuracy of its view of the constitution. The case law in the area clearly establishes that permits such as these are not property in the constitutional sense. Such permits do not confer any right, estate or vested interest, and are revocable at the will of the legislature. Such permits are also subject to new permit conditions. State ex rel First Presbyterian Church of Miami v. Fuller, 187 So. 148 (Fla. 1939); City of Miami Beach v. Deauville Operating Corp., 129 So.2d 185 ( Fla. 3d DCA 1961) and Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 ( Fla. 1st DCA 1977). Moreover, the 1984 amendments to Chapter 479 do not require retroactive application to be applied to permits AK946-06 and AK947-06. The new permit conditions were applicable only upon the expiration of the old permits on January 15. Thereafter, the new permit conditions applied to the renewal. Therefore, since Lamar did not build any signs on the sites covered by either permit AK946-06 or AK947-06 within 270 days of its first renewal after the effective date of the statutory revisions to Chapter 479, Florida Statutes, and has not posted the required tags at the sites, permits AK946-06 and AK947-06 are void and cannot be used as a basis for denying Petitioner's sign applications. As in Florida Cities, having failed to establish the reasonableness and accuracy of its policy, the foregoing policy cannot form the basis of the permit denials. This is especially true in light of the fact that DOT's policy ignores the clear language of the statutory amendments.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order voiding Permits AK946-06 and AK947-06, held by Respondent, Lamar Advertising Company, Inc., and granting the applications of Outdoor Media of Pensacola, Inc. DONE and ENTERED this 23rd day of May, 1990, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990.
Findings Of Fact Whiteco is the successor in interest to a sign along U.S. 19, 7.83 miles north of the Pinellas-Pasco County line. Deeb Construction Co. obtained a permit on February 26, 1980, to erect a sign at the location in Finding of Fact #1 facing both north and south (Exhibit 2). This sign was erected and a permit for each face was issued. In January, 1981, Ridgewood Signs, on behalf of Deeb Construction, submitted Permit Affidavit Form (Exhibit 3) to replace the existing 8' x 16' sign with a 12' x 40' sign and on February 11, 1981, the DOT Sign Inspector prepared a Certificate of Sign Removal (Exhibit 4). Permit Tags AB 061 and AB 062 issued for the original sign were cancelled. On February 9, 1981, Deeb's application to erect a sign at this same location facing north only was approved (Exhibit 1). Tag Number AD 484-10 was issued for this north-facing sign. No application was submitted for a south- facing sign at this location and no tag for such a sign was issued. 5. Despite the lack of a permit for a south-facing sign at this location, a south face was placed on the structure and the notice of alleged violation (Exhibit 5) was issued for this south facing sign. This sign is 797 feet from a permitted sign along U.S. 19 on the same side of the highway facing south.
Findings Of Fact The Respondent, Gary Dotson, d/b/a Castaway Point, holds outdoor advertising sign permit number 6637-2 authorizing a sign on U.S. 1, 1.3 miles north of SR 516, facing west, in Brevard County, Florida. This location is inside the road right-of-way of the City of Palm Bay. At the time when the subject sign Permit was issued by the Department, the City of Palm Bay had given permission to erect a sign at this location. This permission was for a period beginning on February 15, 1979, and expiring in April of 1980. A sign had been erected at the site where the permit had been issued. This sign was erected by a previous owner, and when the Respondent bought Castaway Point the purchase included the sign. The sign which was authorized by the subject permit was removed by the City of Palm Bay after the City's permission for continued maintenance of this sign had expired. There is presently no authority from the City of Palm Bay for the Respondent to have a sign at the permitted site.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that permit number 6637-2 held by Gary Dotson, d/b/a Castaway Point, for a sign on US. 1, 1.3 miles north of SR 516, facing west, in Brevard County, Florida, be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of March, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. Gary Dotson 3101 Bay Boulevard, N.E. Palm Bay, Florida 32905 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
