Findings Of Fact Mr. Claude R. Finley is the sole owner of Pensacola Outdoor Advertising. He purchased property on April 17, 1984, having a sign structure with four faces located thereon. This sign structure was owned by the Lamar Company. The Department had issued for permits to the Lamar Company for the four faces of this sign. Mr. Finley was aware that this sign was permitted by the Department to Lamar when he purchased this property. Mr. Finley applied for sign permits at this approximate location by application dated April 15, 1984. The Department denied the application because of sign permit numbers AD809-8, A15824-10, A1585-10 and 6821-10 held by the Lamar Company, and because no preliminary approval letter from Escambia County had been obtained. A second application for permits was sent to the Department on June 12, 1984, which was also returned unapproved by letter dated June 18, 1984, because of the existing permits that had been issued to Lamar. Mr. Finley attempted on numerous occasions to work out a lease with Lamar for the subject location, but he was not successful. By letter dated June 12, 1984, Mr. Finley notified the Lamar Company that it had 15 days to remove the sign structure from his property. Mr. Hollis Wood, General Manager of the Lamar Company, responded by letter dated June 22, 1984, that he would remove the sign structure on June 30, and cancel its permit tags after the expiration of its lease for the sign site. Mr. Finley rode by the location on I-10, on June 30th, about 3:00 p.m. He did not stop, but he observed no sign there. He could tell by the bent trees that some work had been done in the area. The previous time Mr. Finley had been by the site, earlier in the week, the sign was standing. By letter dated June 13, 1924, Mr. Finley advised the Department that he was the owner of the property where the Lamar Company held permits, and he advised he was cancelling the permits for signs on his property. By letter dated June 19, 1984, the Department informed the Lamar Company that it had received information that the Lamar Company no longer had the permission of the property owner to maintain the sign at the location where the permits were issued, and that the permits would be invalidated by the Department unless evidence was provided to refute the information, or a hearing requested within 30 days to challenge this cancellation action. Mr. Wood, by letter dated June 29, 1984, requested an administrative hearing. Later Charles W. Lamar III, by letter dated July 20, 1984, withdrew the request for an administrative hearing, advising that the sign structure in question had been removed, and that a cancellation affidavit and the permit tags were being returned to the Department. The first application for sign permits on the south side of I-10, 2.2 miles east of SR 297, for signs facing east and west, submitted by the Petitioner, was denied because of the four existing permits held by the Lamar Company at this location, and because no preliminary approval from Escambia County for erecting billboards that had been obtained. The county's preliminary approval is part of the application process for locations in Escambia County. The Lamar Company's sign permits remained outstanding until after July 1, 1984, when the new spacing requirements of the 1984 amendment to Chapter 479, Florida Statutes, became effective. There are two permitted sign locations approximately 1,000 feet to the east and to the west of the subject site. These permits are held by Bill Salter Outdoor Advertising. The Petitioner's second permit application was denied because the permits held by the Lamar Company were not cancelled until July when the new spacing law became effective requiring 1,500 feet between signs on I-10, resulting in a spacing conflict with the two Bill Slater locations approximately 1,000 feet to the east and west of the proposed site. The Department's procedure for revoking permits allows a party holding a permit to cancel it by submitting an affidavit and returning the tags, stating the reason for cancellation in the affidavit. Until permits are revoked or cancelled by the Department, they remain valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a Final Order finding that the application of Pensacola Outdoor Advertising for sign permits at a location on the south side of I-10, 2.2 miles east of S.R. 297, facing east and west, in Escambia County, Florida, be denied. DONE and ORDERED this 28th day of December, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of December, 1984. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
The Issue Whether the Respondent is in violation of Chapter 479, Florida Statutes, for having no identification on the sign, no valid lease for the sign and no current permit tag.
Findings Of Fact A violation notice was issued to the Respondent, Peterson Outdoor Advertising Company, on June 18, 1976, citing a sign located at .23 miles south of John's Road on U.S. 1, with copy "TOBYS". The violation not ice stated that the Respendent was to violation of Section 479.07(4), Florida Statutes, with no current tag, with the lust tag being 1971; Section 479.07(7), Florida Statutes, with no identifier; Section 479.13, Florida Statutes, with no valid lease. The latest permit tag affixed to the sign is dated 1971. A photograph of the sign taken on the 20th of April, 1977, showed that there was no identifier on the sign. An identifier is the imprint showing the owner of the sign. Subsequent to the taking of the photograph, an identifier was added to the sign showing the Respondent as owner. The Respondent entered into evidence an application for outdoor advertising permit dated March 2, 1977. A sign lease agreement was entered into evidence by the Respondent dated the 15th day of February, 1977, alleged to be a lease agreement from the Florida Conference Association of Seventh Day Adventists for a lease for a term of five years beginning January 1, 1973 and expiring December 31, 1977, for the subject billboard sign. There was confusion as to the ownership of the sign and the sign stood without permit tags subsequent to 1971. No application for permitting of the sign was made until the Respondent made an application for a permit as indicated in the foregoing findings of fact in 1977. The proposed Recommended Order of the Respondent has been considered in the preparation of this order.
Recommendation Remove the subject sign inasmuch as the sign is illegal and in violation of Chapter 479, Florida Statutes. DONE and ORDERED this 22nd day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32789
Findings Of Fact Petitioner owns land adjacent to, west of, and within 600 feet of Interstate 95 in Port St. Lucie County, Florida. The land comprises approximately 17.7 acres and is not within the city limits of a municipality. The land is designated commercial in the Comprehensive Plan adopted by the County. The zoning designation was changed on March 27, 1990, for one half acre of the land approximately 2000 feet north of Okeechobee Road. The zoning designation for that half acre was changed from Commercial to Commercial General pursuant to Resolution 90-80. The purpose of the change in zoning designation, as stated in Petitioner's Petition for Change to the Official Zoning Atlas of St. Lucie County, was to permit the construction of an advertising billboard. The change in zoning designation obtained by Petitioner was necessary to permit the location of a sign on Petitioner's half acre. No ordinance or other local regulation defines the uses permitted for land designated in the County's Comprehensive Plan as Commercial. 1/ The Chairman of the Board of County Commissioners for St. Lucie County explained in a letter dated February 6, 1991, that the zoning designation of Commercial allows and encourages the application of the Commercial General zoning designation. The letter did not state that a change in zoning designation from Commercial to Commercial General was unnecessary in order to permit the location of a sign on Petitioner's half acre. Petitioner elected to apply to the County for a change in zoning designation from Commercial to Commercial General, and the County approved Petitioner's application. Petitioner applied for a sign permit on July 3, 1990. Respondent denied Petitioner's Application For Outdoor Advertising Sign Permit on July 26, 1990, on the ground that the change in zoning designation for one half acre of the land was enacted specifically for billboards in violation of Section 479.07(10), Florida Statutes. 2/ The Chairman of the Board of County Commissioners determined in his letter dated February 6, 1991, that Respondent's determination of "spot zoning" is invalid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for a sign permit be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of April, 1991. DANIEL MANRY 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 Administrative Hearings this 5th day of April, 1991.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Marilyn Bethel owns Tract B of Unit 3 in Indian River Estates in St. Lucie County, Florida [hereinafter referred to as the Property]. On or about May 14, 1988, Bethel entered into a lease agreement with Respondent. The agreement, which was signed by Bethel and Respondent's Secretary Treasurer, Richard Pozniak, provided as follows: The undersigned lessor, his [sic] heirs or assigns, in consideration of the annual sum of TWELVE HUNDRED (1,200) Dollars paid by AD-CON OUTDOOR ADV., INC., its heirs or assigns, hereafter known as Lessee, hereby grants to it or assigns the exclusive right to use and occupy the premises known as, [the Property] space for a south facing sign[,] for the purpose of constructing and maintaining advertising displays and devices, including necessary equipment for a period of Year to Year years from 6/1/88 19 . First option to lease both North and South facing locations will be granted to the Lessee by the Lessor for the above mentioned location at the termination date of the Lease drawn between the Lessor and National Outdoor Adv due to expire in [sic] April 1, 1989, for an additional 1,200. Total due will be $2,400. It is further agreed: In the event said property is to be improved by the erection of a permanent building, the agreement may be cancelled by giving sixty (60) days written notice to the Lessee prior to the commencement of construction. If the title passes from the present owner, this agreement may be cancelled by giving sixty (60) days written notice to the Lessee. In either case, the Lessee shall be refunded all unearned prepaid rental. The right is given to the Lessee to cancel this agreement by giving sixty (60) days written notice if the advertising value of the premises is diminished by any law or regulation, obstruction of view, or change of traffic. The Lessor agrees not to obstruct, nor to permit any other person to obstruct, the view of the advertising displays or devices constructed on said premises in any manner whatsoever. In the event this agreement is terminated before the end of its term (or the renewal thereof) the Lessor agrees to refund to the Lessee all unearned prepaid rental. It is understood that all display or necessary equipment placed on above property by Lessee is at all times its property and subject to its removal at any time. After the term (or renewal thereof) of this agreement, it will continue in force from year to year unless terminated by either Lessee or Lessor or[sic] written notice to the other, served not less than sixty (60) days before the beginning of such additional year. Lessor grants to lessee, or agents, the right to ingress or egress during the term of this contract to maintain sign structure(s). This agreement is subject to Lessee securing a building permit for said display. Payment is to be made upon securing building permit. The foregoing agreement was drafted by Respondent. Respondent prepared the agreement by adding the underscored language to a printed, form "Outdoor Advertising Structures and Display Lease" that it routinely utilizes in such transactions. On or about June 20, 1988, Respondent submitted an application for an outdoor advertising sign permit for the south facing sign referenced in the above-described lease agreement. Permit AY 242-35 was subsequently granted to Respondent by Petitioner. By letter dated January 9, 1989, from Respondent's attorney, Respondent informed Bethel that it sought to exercise its option "to lease both North and South facing locations," as provided in their agreement. By letter dated January 24, 1989, Bethel, through her attorney, gave "notification to [Respondent] pursuant to the Lease that it will be terminated on May 31, 1989." The letter was received by Respondent on January 25, 1989. On or about May 1, 1989, Bethel sent Petitioner a letter advising that Respondent would "not have a lease for the billboard [which is the subject of permit AY 242-35] after May 31, 1989." Based on the information provided by Bethel, Petitioner initiated action to revoke permit AY 242-35 on the ground that Respondent no longer had "the property owner's permission to maintain signs at the subject location."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, its hereby RECOMMENDED that Petitioner enter a final order revoking Respondent's permit AY 242-35. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of November, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3807T The following are the Hearing Officer's specific rulings on the findings of fact proposed by Petitioner: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected. The Hearing Officer is of the view that the agreement is not vague and ambiguous regarding Bethel's right to terminate her agreement with Respondent in the manner prescribed by the agreement's termination clause. In any event, to the extent that there may an ambiguity in the agreement concerning this matter, any such ambiguity should be resolved in favor of Bethel's right to terminate the agreement inasmuch as the agreement was drafted by Respondent. See Finlayson v. Broward County, 471 So.2d 67, 68 (Fla. 4th DCA 1985). COPIES FURNISHED: Rivers H. Buford, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Garrison M. Dundas, Esquire Swann and Haddock, P.A. Southeast Bank Building 300 South Sixth Street Fort Pierce, Florida 34950 Richard J. Pozniak Ad-Con Advertising Company Post Office Box 541 Fort Pierce, Florida 34954
The Issue Whether the sign which was located at the northwest corner of US #41 and State Road 862, 50 feet west from US #41 on Vanderbilt Road, with the copy "La Playa Motor Inn" and "La Playa Motor Inn", found there on October 8, 1975, continuing through February 19, 1976 was in violation of the following: Chapter 479.07(1), Florida Statutes, which requires a permit for the erection of a sign. Chapter 478.07(7), Florida Statutes, which requires the name of owner or advertiser be affixed to the face of the sign structure. Chapter 479.02(2), Florida Statutes, which sets forth certain requirements of spacing.
Findings Of Fact At a time prior to October 8, 1975, Seminole Vanderbilt Corporation, which trades as La Playa Motor Inn and is owned by P. M. Francoeur, sole owner and president, leased a sign from Richard O. Radenbaugh. This sign was located in the vicinity of the northwest corner of US #41 and State Road 862, 50 feet west from US #41 on Vanderbilt Road. Subsequent to the time that the sign was leased to the Seminole Vanderbilt Corporation, Richard O. Radenbaugh entered into a contract to sell the space and the sign to the Department of Transportation. The sale was effected and the sign was removed. P. M. Francoeur, as President and leaseholder on the sign was not told that the subject sign would be sold, prior to the negotiations and sale between Mr. Radenbaugh and the Department of Transportation. Consequently, the original sign with the copy "La Playa Motor Inn" was removed without his knowledge; Mr. Francoeur went to a County Commissioners meeting in Collier County, Florida and Mr. Radenbaugh spoke with Mr. Francoeur at that time and promised to give him a vacant sign which had the copy "King Crown Inn". This sign was located immediately west of the "La Playa Motor Inn" former sign. Mr. Francoeur accepted that offer and caused workmen to go to the location and to remove the "King Crown Inn" sign and have it refurbished for purposes of installation at the general location of the original "La Playa Motor Inn" sign. When this refurbishing and site location was accomplished, it left two signs in the area that originally had three signs. There was now, an unrelated sign and the new "La Playa Motor Inn" sign which had been constructed from the former "King Crown Inn" sign; as opposed to, the unrelated sign, the original "La Playa Motor Inn" sign which had been sold to the Department of Transportation and removed, and the "King Crown Inn" sign which was in the immediate area west of the original "La Playa Motor Inn" sign. Mr. James A. Hachett, outdoor advertising inspector with the Department of Transportation, was aware that the original "La Playa Motor Inn" sign had been sold and removed. When he went by the subject location after the original "La Playa Motor Inn" sign had been sold and removed, he discovered that a new sign with the copy "La Playa Motor Inn" had been erected in the general area where the original "La Playa Motor Inn" had been located. He also noted that the "King Crown Inn" sign was no longer located in a position west of the space which had been occupied by the original "La Playa Motor Inn" sign. In addition, the new "La Playa Motor Inn" sign was not in the exact location as the original "La Playa Motor Inn" sign. On a closer examination, Mr. Hachett discovered that there were three identifying permit tags affixed to the new "La Playa Motor Inn" sign. One tag was the permit tag from the original "La Playa Motor Inn" sign, and the other two tags were from the sign west of the location, which sign was the "King Crown Inn" sign. These former permit tags were affixed to each side of the double faced advertising sign. It was after this examination that the "La Playa Motor Inn", in the person of P. M. Francoeur was notified of the prospective violations as ultimately alleged in the October 8, 1975 complaint. Francoeur was notified by an alleged violation statement addressed to the Seminole Vanderbilt Corporation, which owns "La Playa Motor Inn". As of February 19, 1976, at the time of the hearing, the new "La Playa Motor Inn" sign which is in fact the refurbished structure which was the "King Crown Inn" sign, located west of the original "La Playa Motor Inn" sign, is still standing in the general, but not exact position of the original "La Playa Motor Inn" sign. Application for permit by the Seminole Vanderbilt Corporation t/a "La Playa Motor Inn" for the benefit of the copy, "La Playa Motor Inn" has not been applied for since the original "La Playa Motor Inn" sign was sold to the Department of Transportation and removed. Application has been made for a renewal of the permit which is associated with the "King Crown Inn" sign which was refurbished and became the subsequent "La Playa Motor Inn" sign. In describing the location of the new "La Playa Motor Inn" sign, it is somewhere between the location of the original "La Playa Motor Inn" sign and the "King Crown Inn" sign, but not in the exact location of either of those original signs.
Recommendation It is recommended that the Petitioner afford the Respondent 30 days within which to remove the sign or take satisfactory steps to obtain a permit for the sign, after which time the Petitioner, in accordance with Chapter 335.13(2), Florida Statutes, shall cause such sign to be removed. DONE and ENTERED this 14th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operation Mr. P. M. Francoeur, President Department of Transportation c/o La Playa Motor Inn 605 Suwannee Street 9091 Gulf Shore Drive Haydon Burns Building Naples, Florida 33940 Tallahassee, Florida 32304
Findings Of Fact Outdoor Display is a licensed outdoor advertiser holding License No. 18191 from Polk County. The two signs which are referenced in the charges are located on U.S. 92 respectively 2.59 miles and 2.67 miles west of U.S. 27. These signs were inspected in 1975 and the first sign bore 1971 permit issued to Outdoor Display. The signs each had a value of more than $100. Both signs belonged to Outdoor Display, and neither sign bore a current permit. Boger receives application from Outdoor Display as the outdoor advertising administrator but had not received any application with regard to these two signs prior to the hearing.
Findings Of Fact Lamar acquired permits AA-634 and 7504 from Peterson Outdoor Advertising Company for a double-faced sign located on U.S. 98, South, approximately one-half mile north of Crystal Lake Drive on a site leased from Mary D. and Billy Allred. The lease (Exhibit 1.), executed in 1978, was for a three-year term with automatic renewal for an additional five year period and thereafter from year to year on the same terms and conditions unless terminated by lessee by giving 30-days notice prior to the end of the lease year. By warranty deed dated June 14, 1983, (Exhibit 2.) Sun State acquired the property on which this sign was located from Allred. Rent on this lease for 1984 was sent to Allred by Lamar, endorsed over to Sun State and cashed by Sun State. A check for rent for 1985 sent by Lamar to Sun State was never negotiated. By letter dated April 3, 1985, (Exhibit 4.) Sun State Homes told Lamar to immediately remove the sign from its property on U.S. 98, South. On May 16, 1985, Sun State applied for a permit for a sign on U.S. 98, 550-feet north of North Crystal Lake Drive. This application was disapproved by DOT on June 7, 1985, in Exhibit 3 because it was in conflict with the sign for which Lamar held tags for the proposed site. On or about the same time, Sun State applied to Polk County for a building permit to erect a sign at this site. Polk County disapproved the application because DOT had denied the permit. By letter dated May 29, 1985, Sun State appealed the denial of their application. On or about May 27, 1985, Lamar removed their sign from Sun State's property. On May 28, 1985, Lamar submitted an application for a permit to erect a sign on U.S. 98, 1,200 feet north of N. Crystal Lake Drive (Exhibit 5.) and simultaneously surrendered tags no. AA-634 and 7504. Lamar had obtained permission from the owner of that property to erect a sign at this site. This application was denied by DOT because of the appeal by Sun State from its denial. DOT will not approve an application for a sign permit when the right of occupancy of the site is contested. Lamar appealed this denial and the two cases were consolidated for hearing. The two applications are mutually exclusive as only one can be granted without violating spacing requirements.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Department of Transportation (DOT), is the state agency charged with the responsibility of administering and enforcing the Federal Highway Beautification Act, as amended, which pertains to lighting, design and spacing of signs on the interstate, federal and primary highway systems. Respondent, First Coast Outdoor Advertising, Inc. (First Coast), is an outdoor advertising firm located in St. Augustine Beach, Florida, and is the owner of a sign erected on State Road A1A in Flagler County, Florida. Respondent, Motel Delores, is a motel located at 5992 Oceanside Boulevard (State Road A1A) in Flagler County and has a sign erected near its place of business. Both signs are located on the same side of the highway and are subject to DOT's regulatory jurisdiction. The underpinnings of this controversy began in 1966 when Motel Delores decided it would erect a sign with a message reading "Delores Motel & Restaurant". The actual location of the sign is 385 feet south of the intersection of Malacompra Road and State Road A1A, or 10.2 miles north of the intersection of State Roads 100 and A1A, in Flagler County, Florida. At that time, the property on which the sign was erected was owned by Malcolm Johnson. According to Jerrald D. Schatz, who is one of the motel owners, Motel Delores was given permission by Johnson for the sign to be erected on Johnson's property. In 1970, ITT Development Corporation (ITT) purchased Johnson's land. There is no indication in the record that ITT initially lodged any objections to Motel Delores continuing to have its sign located on ITT's property. The date on which DOT began regulating outdoor advertising signs is not of record. However, Motel Delores first learned of the need to obtain a sign permit in early 1977 when a DOT representative advised it that a permit was necessary. Accordingly, respondent made application with DOT for a permit on March 9, 1977, and was issued tag number 5697-02 on March 16, 1977. Thereafter, the tagged sign remained at the same location until March 1990. In 1984, ITT and DOT became embroiled in a civil action over ownership of land on and near State Road A1A where the two signs are now located. In 1986, the lawsuit was settled when DOT and ITT agreed to exchange land in the immediate area. As a result of that settlement, the land on which Motel Delores' sign was located was deeded from ITT to DOT and now constitutes right- of-way on State Road A1A. Without DOT's written permission, the placement of a sign on state right-of-way is prohibited. In March 1990, Motel Delores' sign and tag were stolen by unknown individuals. Within a few days, Schatz began erecting a new sign a few feet closer to A1A. By chance, a DOT sign inspector, William Terry, happened to be traveling on A1A and observed the new sign. After a preliminary investigation was conducted, including contact by DOT with ITT, Terry concluded that the sign was within fifteen feet of DOT right-of-way on a federal primary highway and the sign owner did not have ITT's written permission to have the sign at that location. The inspector was unaware of the fact that DOT and ITT had exchanged land some four years earlier and was under the impression that the land on which the sign was located belonged to ITT. Accordingly, on March 29, 1990, Terry posted a cease work order on the sign and recommended that a notice of violation be issued. The recommendation was accepted by the district administrator of outdoor advertising and a notice to show cause was issued on April 6, 1990. On April 23, 1990, Schatz filed a request for hearing with the DOT district office. In late February 1990 First Coast began erecting an outdoor advertising sign approximately 523 feet north of where the Motel Delores sign was located. In conjunction with this activity, on March 14, 1990, First Coast filed an application with DOT for a sign permit. However, A1A is designated as a part of the federal-aid primary highway system and state law prohibits two permitted signs from being located within 1,000 feet of one another on such a road. Because the DOT "inventory book" for permitted signs carried the tag number for the sign owned by Motel Delores, which was 523 feet south of First Coast's sign, the application was returned to First Coast on March 21, 1990, with a notation by the district administrator that it was "Dis-Approved" (sic). A short time later, Terry posted a cease work order on First Coast's uncompleted sign, and a notice to show cause was issued on April 6, 1990, on the ground the sign did not meet spacing requirements. However, because at that time Motel Delores' sign was on DOT right-of-way without DOT's permission, there was no lawful, permitted sign on the same side of the road within 1,000 feet of First Coast's sign and thus the notice was improvidently issued. Indeed, a DOT representative acknowledged at hearing that Motel Delores' sign was "illegal" at the time the notice to show cause was issued against First Coast. In view of this, First Coast's application for a sign permit should have been approved. On April 19, 1990, First Coast requested a hearing to contest DOT's preliminary decision. Among other things, First Coast contended that the Motel Delores sign was illegally erected and thus its sign met all spacing requirements. For reasons not of record, DOT did not forward this and Motel Delores' first request for hearing to the Division of Administrative Hearings until more than a year later. During this period of time, both respondents completed construction of their new signs and have continued to use them pending the outcome of these proceedings. Even so, DOT agreed at hearing that respondents should not be charged with violating the cease work orders posted on the two signs. On October 17, 1991, DOT advised Schatz by letter that it was "rescinding all violations issued under the (April 6, 1990) notice" because the notice had incorrectly identified the location of the sign as 385 feet north of Malacompra Road when in fact the actual location was 385 feet south of Malacompra Road. Schatz's happiness was short-lived, however, because DOT then issued another notice to show cause on November 1, 1991, alleging that the sign did not have a valid permit tag and was located on DOT's right-of-way. Motel Delores thereafter requested a hearing on November 8, 1991. On November 20, 1991, Motel Delores filed with DOT an outdoor advertising permit affidavit form in which it represented that its sign tag had been stolen and a replacement tag was necessary. The request was approved by DOT on January 14, 1992, and replacement tag number BF 209-25 was issued. On February 1, 1992, or less than a week prior to final hearing, DOT and Motel Delores executed a five year lease agreement whereby DOT agreed that the motel could keep its sign on DOT's property for $200 per year. According to Schatz, he had requested such a lease from DOT in late 1990 and it took more than a year for DOT to formalize the agreement.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the notices to show cause issued against respondents on April 6, 1990, and November 1, 1991, be dismissed with prejudice. It is further recommended that a sign permit be issued to First Coast Outdoor Advertising, Inc. for its sign erected on State Road A1A in Flagler County. DONE and ORDERED this 30 day of March, 1992, at Tallahassee, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 30 day of March, 1992. Vernon L. Whittier, Jr., Esquire 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Gerald S. Livingston, Esquire Suite 1150 200 East Robinson Street Orlando, FL 32801 Jerrald D. Schatz 5992 North Oceanside Boulevard Hammock, FL 32137-2601 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, Agency Clerk 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458
The Issue The issue is which outdoor advertising signs should be permitted.
Findings Of Fact Escambia County, at all times material to these proceedings, had, in effect, a local ordinance that regulates the location and construction of outdoor advertising signs. The administrative agency of the county that handles enforcement of the ordinance is the county building inspection department. The policy adopted by that department is that an outdoor advertising company first submits to it a request for approval of a site location. The department inspects the location to see whether the location meets the spacing requirements of the ordinance. The building inspection department does not make an effort to determine at that time whether all other requirements for the issuance of a state permit are met. It issues a letter addressed to the Chipley office of the DOT stating whether it approves the proposed site and delivers that letter to the outdoor advertising company applying for the permit. Lamar submitted an application to the county for a site on the east side of Nine Mile Road (S.R. 297), 250 feet south of U.S. 90A, with a drawing showing the proposed sign location. (See, pg. 4; DOT Exhibit 4). The application was approved by the Escambia County building inspection department on January 6, 1989. On February 24, 1989, Outdoor submitted applications to the Escambia County building inspection department for sites on the east side of S.R. 297 (Nine Mile Road), south of U.S. 90A ("D" on DOT Exhibit 1), and on the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). The locations were checked on February 27, 1989 by an employee of the Escambia County building inspections department, who found the sites to comply with spacing requirements and so indicated on the drawing submitted with the applications. However, that employee's supervisor, John Kimberl, found upon checking the records in the department's office that the application of Lamar for the site, 250 feet south of the intersection of S.R. 297 and U.S. 90A on the east side of S.R. 297, had been approved. This approval created a conflict with the site applied for by Outdoor on the east side of S.R. 297 ("D" on DOT Exhibit 1). Escambia County approved the application for the south side of U.S. 90A east of S.R. 297 ("C" on DOT Exhibit 1). Escambia County issued two letters, one of which stated that the application was approved and the other which stated that the application was denied because it would be in conflict with the spacing requirements because of a prior application. Both letters identified the sign in question using the same address. Outdoor applied for outdoor advertising permits for sites "C" and "D" to DOT by two separate applications on March 31, 1989. Outdoor attached sketches of both sites and a copy of the approval letter from Escambia County to its applications to the DOT representing to the DOT that the appropriate authorities of Escambia County had approved both sites. This may have been inadvertent and due to Outdoor's practice of proceeding only with letters of approval. The applications submitted by Outdoor were otherwise in order. A field inspection by Phillip Brown of the DOT showed that there would be a conflict between the two locations applied for by Outdoor because they were within 660 feet of each other and outdoor advertising signs would be visible to motorists on both highways. The DOT, therefore, offered Outdoor its choice of the two locations. Outdoor chose the location ("D") on the east side of S.R. 297. The DOT then issued Permit Nos. AY436-35 and AY437-35 and gave Outdoor notice that it had denied its other application ("C"). Lamar applied to DOT for an outdoor advertising permit for its location 250 feet south of the intersection on the east side of S.R. 297 initially on January 27, 1989 and again on February 23, 1989. On one occasion, it was rejected because it had the wrong lease attached and on another occasion because the 250-foot distance placed it on property not subject to a valid lease. (See DOT Exhibit 4). After February 23, 1989, this application was amended to 144 feet south of the intersection of S.R. 297 and U.S. 90A and resubmitted with a proper lease. This site was not resubmitted to Escambia County for evaluation, and the original approval letter for the site 250 feet from the intersection was used. (See DOT Exhibit 3). After Lamar's application for permits for the east side of S.R. 297, 144 feet south of U.S. 90A, were rejected as being in conflict with Permit Nos. AY436-35 and AY437-35 issued to Outdoor, Lamar requested an administrative hearing and alleged that Escambia County had not approved the application of Outdoor for the location on the east side of S.R. 297. It is the policy of both the Escambia County building inspection department and the DOT to approve applications for permits in the order in which they were received if the applications are in compliance with the requirements of the statutes, rules and ordinances. It is further the policy of Escambia County not to permit anyone to erect a sign unless they have state permits. In this case, neither Lamar nor Outdoor fully complied with the Escambia County requirements. Outdoor's application for site "D" was not approved by the county and Lamar changed the location of its sign from 250 feet to 144 feet south of the intersection. This new location was not resubmitted for site evaluation. The DOT should have been alerted to the problems of both applications because Outdoor's sketch said the approval was void and the date of the county's letter of approval to Lamar did not change when Lamar's site sketch was changed. Lamar received the approval of Escambia County; but by the time its otherwise valid application was submitted to the DOT, the DOT had issued the permits to Outdoor for the location on the east side of S.R. 297 and denied Lamar because of spacing problems. The DOT would have rejected the application of Outdoor for the location on the east side of S.R. 297 if Outdoor had submitted to it the proper letter from Escambia County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the DOT revoke the issued Permit Nos. AY436-35 and AY437-35 because the site upon which the signs were to be erected was not properly approved by the county. The DOT properly rejected Lamar's application because its amended site was not approved by the county. DOT's denial of Outdoor's application for signs at site "C" is not at issue in this case and no recommendation is made regarding it. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. Officer Hearings 1550 STEPHEN F. DEAN, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Hearings 1990. COPIES FURNISHED: Mr. Ben C. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thomas H. Bateman, III, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Robert P. Gaines, Esq. Beggs and Lane P.O. Box 12950 Pensacola, FL 32576-2950 J. Arby Van Slyke, Esq. P.O. Box 13244 Pensacola, FL 32591 Charles G. Gardner, Esq. 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Filed with the Clerk of the Division of Administrative this 31st day of January,
