The Issue The issue is whether Respondent's outdoor advertising sign on State Road 200, 5.37 miles east of U.S. Highway 17, should be removed because it does not have a permit for said sign.
Findings Of Fact Ronald L. Peacock, owner of Peacock Electric Company, had his employees erect a two-sided sign on State Road 200, 5.37 miles east of U.S. Highway 17. Mr. Peacock acknowledges that he did not have a permit for the sign and that he knew he needed a permit at the time he had the sign erected. He testified that he just hoped he would not get caught. State Road 200 is a federal aid primary road. After he was first notified that the sign was erected without a permit, Mr. Peacock filed an application for a permit. The application was rejected because it did not contain the necessary fees, the permission of the landowner, or the local building permit. Additionally, the location of the sign is 942 feet from an existing permitted sign. The sign is five feet from the right-of-way. Mr. Peacock removed the sign after this action was filed by DOT. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes. As relevant to this case, Section 479.105, Florida Statute, states: Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by S. 479.07(1) having been issued by the department, is declared to be a public nuisance and shall be removed as provided in this section. * * * (d) If, after a hearing, it is determined that a sign has been wrongfully or erroneously removed pursuant to this subsection, the department, at the sign owner's discretion, shall either pay just compensation to the owner of the sign or reerect the sign in kind at the expense of the department. In this case, the sign was erected without a permit and Mr. Peacock has correctly been denied a permit. The sign has been removed as required. The sign owner has not proven that the sign was erroneously removed. Hence, the sign cannot be reerected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order and therein order the removal of the sign in question and deny any request for reerection of the sign without a permit. DONE and ENTERED this 16th day of March, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 16th day of March, 1990. COPIES FURNISHED: Charles Gardner Attorney at Law Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Ronald L. Peacock Peacock Electric Company Route 1, Box 137-D Fernandina Beach, FL 32034 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether Respondent's outdoor advertising permits BU 839 and BU 840 became void pursuant to the provisions of Section 479.07(5)(a), Florida Statutes.
Findings Of Fact On August 18, 1998, Petitioner issued valid state outdoor advertising permit numbers BU 839 and BU 840 to Respondent for a sign with two faces, one facing north and the other facing south, to be erected at a specified location on the west side of State Road 5, 2000 feet north of PGA Boulevard in Palm Beach County, Florida. Section 479.07(5)(a), Florida Statutes, provides, in pertinent part, as follows: . . . 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. 1/ Petitioner adopted the following definition at Rule 14- 10.001(2)(c), Florida Administrative Code, on June 28, 1998: (c) "Completed Sign", for the purposes of Section 479.07(5)(a), Florida Statutes, means the erection of the sign structure as described in the permit, as well as attachment of the facing to the structure, and the posting of a message to the facing. Petitioner asserts the permits became void by operation of law on May 16, 1999, because that date is 271 days from August 18, 1998, the date the subject permits were issued. As of May 16, 1999, no completed sign had been erected by Respondent on the permitted site as the term "completed sign" has been defined by Rule 14-10.001(2)(c), Florida Administrative Code. Petitioner notified Respondent on May 21, 1999, that the subject permits were void. No representative of Petitioner misled or lulled Respondent into inaction at any time pertinent to this proceeding. Palm Beach County, the local permitting agency, requires a "Special Permit" before an outdoor advertising sign can be erected within its jurisdiction. Respondent applied for such a Special Permit for the subject signs on March 10, 1998. Palm Beach County issued Respondent a Special Permit for the subject location, but imposed a special condition, to which Respondent agreed. The special condition required Respondent to remove one of its other signs worth approximately $100,000. In addition to the Special Permit, Respondent was required to obtain from Palm Beach County a building permit for this project. That building permit was issued May 14, 1998. Respondent applied to Petitioner for the two permits that are at issue in this proceeding on May 18, 1998. On June 16, 1998, Petitioner denied Respondent's application on the grounds that additional information was needed. After the additional information was supplied, the subject permits were issued on August 18, 1998. On November 15, 1998, Respondent finished the site work that had to be done before the sign could be constructed. The Palm Beach County building permit expired 160 days after it was issued. Respondent secured the renewal of that permit on January 20, 1999. Petitioner placed orders for the sign construction in February 1999. The structural components arrived at the permitted site on April 5, 1999. Between April 5 and April 9, 1999, a 25-foot deep hole was dug, into which the 47-foot long, 4-foot diameter steel monopole was lowered by crane, and six tons of concrete were poured to construct a foundation and support for the sign superstructure. On April 9, 1999, Palm Beach County approved the final inspection of the excavation and foundation. On April 13, 1999, the superstructure of the sign was lifted onto the steel monopole by crane and installed, thereby completing construction of the two-faced sign. 2/ The cost of this construction totaled approximately $50,000. On April 14, 1999, Palm Beach County issued a stop work order (red tag) to Respondent for failure to post permit and plans at the job site and because a subcontractor blocked traffic with a crane that was being used to erect the sign structure. This red tag prevented Respondent from doing any further work on the two-faced sign. Had Respondent violated the red tag, it would have been exposed to a civil penalty of $250 per day and misdemeanor charges. Shortly after it learned that a red tag had been issued on April 14, 1999, representatives of Respondent met with Palm Beach County building officials and disputed their rationale for the red tag. Believing that the red tag issue with Palm Beach County had been resolved, Respondent entered into contracts with advertisers for the respective faces of the two-faced sign, one on April 22 and the other on May 11, 1999. It would have taken less than a day to install advertising copy on these signs. Palm Beach County did not lift its red tag on these signs until July 21, 1999. On August 9, 1999, Palm Beach County approved the two-faced sign on final inspection. Respondent placed advertising copy on both faces of the sign on August 9, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that applies the doctrine of equitable tolling and declares permits BU 839 and BU 840 valid. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 28th day of December, 1999.
Findings Of Fact Interstate Highway 95 (I-95) and State Road 16 (SR 16) intersect in St. Johns County, Florida. There is an interchange located at the intersection of I-95 and SR 16 in St. Johns County. The sign in question is the northernmost of three signs constructed by Respondent on properly zoned private property owned by Charles Usina located southwest of the above interchange and adjacent to I- 95, fifteen feet from the DOT right of way. There is an entrance ramp southwest of the interchange that permits traffic traveling eastbound on SR 16 to enter the southbound lane of I-95. Prior to submitting sign applications to DOT, Respondent's President, Robert Harry, met with Helen Hession at the interchange. Ms. Hession is a Property and Outdoor Advertising Inspector employed by DOT in its District II. Mr. Harry requested the meeting with Ms. Hession to obtain her interpretation of where to begin measuring along the southbound lane of I-95 under DOT's "500 foot rule." At that meeting, Ms. Hession gave her interpretation as to how to locate the point of beginning measurement according to Rule 14-10.009 F.A.C. as enforced by DOT through Section 479.02(1) F.S. The relevant language of Rule 14-10.009 F.A.C. provides: Outside incorporated towns and cities, no structure may be located adjacent or within five hundred (500) feet of an interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way, or an interstate highway. Mr. Harry had been in the business of outdoor advertising for many years, but this was his first experience with this type of measurement using the "500 foot rule" at this type of interchange. Mr. Usina was present with Mr. Harry and Ms. Hession for their pre-application meeting on January 19, 1991. At that time, Ms. Hession indicated the point of beginning for them to measure from in order to utilize the "500 foot rule." Ms. Hession testified consistently and credibly that she had told Mr. Harry and Mr. Usina that the point to begin measuring the 500 feet pursuant to the rule was at the southern tip of the "gore" located between I-95 and the southbound entrance from SR 16. The "gore" is an asphalt triangle marked with white lines that is widest at the northern end where vegetation grows between the southbound lane and the entrance. According to her testimony, Ms. Hession stood in the middle of the gore, facing south, and stated that, under the rule, the measurement should start at the point of the triangle. Ms. Hession illustrated her formal hearing testimony by marking "Point 3" on Joint Exhibit 12, a demonstrative sketch of the interchange and environs, to show the location she had indicated to Mr. Harry and Mr. Usina as the point of beginning. Mr. Harry and Mr. Usina testified equally credibly and consistently that during their pre-application meeting, Ms. Hession had indicated to them that the point to begin measuring was located at the northern end of the gore, or the place at which the vegetation and the asphalt met. For purposes of illustration, they identified the point that Ms. Hession indicated during their pre-application meeting as being "Point 2" on Joint Exhibit 12. While it is clear that Mr. Harry was not seeking Ms. Hession's personal interpretation of "the 500 foot rule," but was seeking the agency's interpretation of the rule it has promulgated and is charged with administering, it is equally clear that Ms. Hession and Mr. Harry never had a meeting of the minds on the exact location that she told him to begin his measurements. Ms. Hession was in her bare feet and unwilling to move around with Mr. Harry and Mr. Usina on the roadway during part of their meeting, and Mr. Harry and Mr. Usina are not entirely consistent as to where everyone was standing at crucial times during their discussion. It is easy to see how a misunderstanding occurred. Mr. Harry made the measurements for Respondent's sign permit application beginning at "Point 2," the northern end of the gore where the end of the asphalt gore meets the vegetation between the entrance and the highway. This location is over 400 feet closer to the interchange than the point Ms. Hession testified she had indicated to Mr. Harry. On January 29, 1991, Respondent filed an application for a DOT permit to construct the sign in question and for the two other signs. The application for the sign in question stated that the sign would be located on private property adjacent to the southbound lane of I-95, fifteen feet (perpendicular measurement) from the right of way and .15 miles from the nearest intersection. Simple arithmetic shows .15 miles equals 792 feet. The sign in question was not actually in existence at the time the application was reviewed and approved. For purposes of DOT review and approval of Respondent's permit application, Mr. Harry had placed stakes bearing the FCOA initials on the DOT right of way at locations parallel to where he intended to erect the signs on Mr. Usina's property. 2/ When reviewing Respondent's application prior to permit approval, Ms. Hession did not rely on the location stated in the application, (.15 miles from nearest intersection), but made her own on-site measurements. She measured using a Distance Measuring Instrument (DMI) mounted in Bartley (Bob) Burch's truck. Mr. Burch drove the truck and observed the stakes but did not participate in making the measurements. Use of the applicant's stakes and DOT's own measurements is standard operating procedure for DOT in reviewing/approving permit applications because sometimes the applicants' measurements as made or as stated on the application are incorrect. Use of the DMI is also standard operating procedure for DOT in this process. The DMI in question was calibrated for accuracy by Mr. Burch immediately prior to Ms. Hession taking the measurements. During her pre-approval application review, Ms. Hession measured the distances between stakes bearing FCOA initials and the distance of the first stake from the SR 16 overpass. She also used the southern tip of the gore ("Point 3") as a reference point when taking her measurements. She measured to the first stake from SR 16 and found the first stake to be .3 miles distant therefrom. (TR-44-45, 53) She reset the DMI at zero and then measured 1500 feet south to the next stake; again reset the DMI at zero and measured 1500 feet south to the third and final FCOA stake. During her pre-approval application review, Ms. Hession found the first FCOA stake to be in a location consistent with her understanding that "Point 3" was the correct point of beginning for applying the "500 foot rule." The first stake was 500 feet south of the tip of the gore ("Point 3"). Using the measurements obtained with the DMI during the pre-approval application review, Ms. Hession approved Respondent's application for a sign .3 miles (not the applied-for .15 miles) south of SR 16, the intersection of SR 16 and I-95. Simple arithmetic shows .3 miles equals 1584 feet. Subsequent to the pre-application meeting with Ms. Hession, but prior to the issuance of the DOT sign permits/tags, Respondent entered into a ground lease agreement with Mr. Usina 3/ and also entered into outdoor advertising lease agreements for the sign (two sign faces) involved here. 4/ These advertising lease agreements were later voided due to a stop work order issued by DOT (See Finding of Fact 19). Respondent has subsequently mitigated some of its loss therefrom by entering into other leases at lower figures. Respondent's six applications for outdoor advertising sign permits were approved by Ms. Hession and processed through DOT's main office in Tallahassee. Permits and tags were issued by DOT on February 22, 1991. Issuance of these permits and tags constitutes final agency approval of the application in question. The permits authorized the erection of three signs in the vicinity of the I-95 and SR 16 interchange at .30, .58, and .86 miles respectively south of the SR 16 intersection. Respondent has never challenged the fact that each of these signs was permitted significantly further south and further away from the intersection than each of the locations applied for: .15, .43, and .72 miles, respectively. Respondent has never protested that the permit issued for the sign in question was not for .15 miles (792 feet) from the intersection, but was for .3 miles (1584 feet) from the intersection. Respondent timely and properly affixed the permit tags to the three monopole structures, as they were constructed. After the permits/tags were issued, Respondent borrowed $25,000 to erect the monopole/sign and Mr. Harry obligated himself to repay that loan with interest. Respondent began construction of the sign in question after February 22, 1991. After a monopole support for the sign in question was installed, two of Respondent's business competitors notified Tom Brown, DOT's Outdoor Advertising Administrator for District II and supervisor of Ms. Hession and Mr. Burch, that Respondent's northernmost sign in this location had been placed too close to the intersection/interchange. Mr. Brown reacted by issuing the stop work order on construction on May 2, 1991, which was posted on Respondent's monopole. The stop work order stated that the structure was within 500 feet of an intersection, in violation of Rule 10-14.009 F.A.C., as enforced through Section 479.02(1) F.S. Mr. Brown subsequently notified Mr. Harry by letter that pursuant to the authority of 479.105(1)(a), the stop work order had been issued because of an alleged violation of Chapter 14-10.009(B) SPACING OF SIGNS (2)(b) F.A.C. which is enforced through Florida Statutes Chapter 479.02(1). Respondent completed the sign in question after the stop work order was issued. Subsequent to her approval of the sign permits, Ms. Hession was instructed by Mr. Tom Brown that her interpretation of the agency rule was incorrect and that the proper place to have begun measuring for purposes of the "500 foot rule" was where the outside edge of the interchange entrance lane disappeared into the outside edge of the through lane of I-95. Bob Burch, a District II Outdoor Advertising Inspector of equivalent rank with Ms. Hession, testified that he interpreted the rule in a manner identical to Mr. Brown's interpretation. For purposes of illustration, this location is marked as "Point 1" on Joint Exhibit 12. The testimony of Tom Brown as to why his interpretation should be considered the agency's interpretation of the rule is sketchy but together with the corroboration of Bob Burch that this interpretation has been the standard application, it is accepted that DOT, as an agency, has interpreted the "500 foot rule" language to mean that a sign may not be located within 500 feet of the point at which the outside edge of an entrance disappears into the outside edge of a through lane on an interstate highway. This interpretation ("Point 1," for purposes of the instant case) is also consistent with the language of the rule and is the most reasonable reading of that language. "Point 2" is not consistent with the language of the rule. "Point 1," Mr. Brown's and Mr. Burch's interpretation of the rule's point of beginning, is furthest from the intersection, at the beginning of the through lane for I-95. "Point 3," Ms. Hession's original erroneous interpretation, is next furthest from the intersection, at the tip of the gore. "Point 2," Mr. Harry's mis-understanding of Ms. Hession's erroneous interpretation is closest to the intersection, where the gore meets the vegetation. Naturally, any distance measured from Mr. Harry's understanding of the point of beginning would be further north than, and closer to, the interchange than would be locations measured from either of the other two points. Immediately after the stop work order was issued, the sign in question was inspected and measured by Ms. Hession. This time she measured its location using a 100-foot tape. She used SR 16 and its overpass as her starting point. SR 16 and its overpass are permanent markers. (TR-47-49) She and Mr. Burch found that the monopole in question had been erected several hundred feet north of the location at which they had previously found Respondent's first stake. The monopole as constructed was less than 100 feet south of the tip of the gore, "Point 3," and north of "Point 1". According to these after-the-fact measurements, Respondent's erected monopole is not 500 feet or more south of either "Point 3" or "Point 1" and it is not located .3 miles from SR 16, as specified in the permit or even .3 miles from Points 1, 2, or 3.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order affirming the May 2, 1991 notices, revoking the permit for the single sign in question, and ordering the removal of the sign within 30 days. DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992.
Findings Of Fact James V. Hodnett, Jr., was registered as a real estate broker in 1974 and has been continually so registered since that time (Exhibit 7). Sea Pines Realty, Inc.'s Articles of Incorporation were filed December 13, 1977, and it was authorized to operate as a Florida corporation on December 15, 1977. Respondent, Sea Pines Realty, Inc., applied for registration as a corporate real estate broker on January 14, 1978, with James V. Hodnett, Jr., as president and active firm member. Request for initial certification for corporation was forwarded to the Florida Real Estate Commission on January 20, 1978, and license was issued to Sea Pines Realty, Inc., as a corporate broker effective February 9, 1978 (Exhibit 6). Of those nine witnesses who purchased homes or lots in Sea Pines, only one of these witnesses, William Barnes, purchased a lot (or home) in Sea Pines later than 1977. Mr. Barnes purchased his home in 1979 from the previous owner and neither of Respondents was involved in or had any influence on that transaction. Mr. Miller testified on direct examination that he had searched the public records and learned that Hodnett had owned the land abutting Sea Pines to the north which was sold to Belcher mines, that Belcher mines set off explosives to blast rock in those mines, and that his house was damaged by those explosives. Upon cross-examination, Mr. Miller admitted that he could not say for certain that the property had been sold to Belcher by James Hodnett, Jr., or James Hodnett, Sr., and that it could have been sold by the latter. In addition to Miller, who purchased his property in 1976; Wurst, who purchased in 1971; Morgal, who purchased in 1977; Farrelly, who purchased in 1971; Leggiere, who purchased in 1976; Senderling, who purchased in 1976; Anderson, who purchased in 1969; and Campbell, who purchased in 1971, all testified that they purchased their properties through, and had contact with, Jean Humphries, who was the salesperson for the developer of this property. Representations regarding the plans to build a golf course, to install underground utility lines, and other representations constituting the gravamen of these charges were all made by Ms. Humphries and none of these representations was made by Hodnett.
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
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 finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
The Issue Whether the application contains knowingly false or misleading information; or Whether the Department is estopped to revoke the permits.
Findings Of Fact By application for outdoor advertising sign permits dated December 19, 1989 (Exhibit 1), Dolphin Outdoor Advertising requested permits for a sign to be located along I-4 in Polk County, Florida 100 feet west of Kraft Road. The application stated that the proposed sign was 1600 feet from the nearest permitted sign. The District DOT sign inspector to whom this application was referred for processing checked the records for signs located within 1000 feet of the proposed location under the mistaken understanding that the minimum spacing requirement for signs along interstate highways was 1000 feet. After determining there were no valid conflicting signs, the inspector, who had been employed by the department approximately six months, approved the application and tags numbered AY 108-35 and AY 109-35 were issued on February 24, 1989. In the interim, the applicant, upon learning that his application would be approved, contacted the landowner and entered into a lease for the property and on February 17, 1989, paid Florida Log and Timber $5000 for the first year's lease (Exhibit 11) on this property. The applicant also paid the finder of the site some $4300 for services and expenses in November, 1988. (Exhibits 7 and 8) In mid-March 1989, while discussing these permits with her supervisor, the inspector who had issued the permit to Respondent learned that the required spacing between signs along interstate highways is 1500 feet instead of 1000 feet which is the minimum spacing along federal-aid primary highways. By letter dated March 17, 1989 (Exhibit 3) the Department advised Respondent that permits AY 108-35 and AY 109-35 were issued in error because of a valid existing permit for a sign located 1056 feet west of Respondent's proposed sign. The permits were therefore stated to be no longer valid, and these proceedings followed. Petitioner's letter of March 17, 1989 was received by Respondent before construction on the sign started but after Respondent received a building permit from Polk County dated February 27, 1989 at a cost to Respondent of $101.20.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued revoking permits AY 108-35 and AY 109-35 issued to Dolphin Outdoor Advertising for a sign along I-4 100 feet west of Kraft Road in Polk County. DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of June, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Scott Hill, Pro Se 1718 Golfside Drive Winter Park, Florida 32972 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
The Issue Whether Respondents (“Dobson’s” and “Western Surety”) should be required to pay an outstanding amount owed to Petitioner, Doug Lancaster Farms, Inc. (“Lancaster Farms”).
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: Oden Hardy was the general contractor for a project in Apopka, Florida, known as the Space Box project. Dobson’s, a subcontractor on the Space Box project, contracted to purchase 269 trees (including Live Oaks, Crape Myrtles, Elms, and Magnolias) for $53,245.00 from Lancaster Farms. Dobson’s supplied Lancaster Farms with all the information needed to file a “notice to owner” as authorized by section 713.06, Florida Statutes. A truck from Dobson’s picked up the trees and transported them to the site of the Space Box project. Upon arriving with the trees, Dobson’s discovered that there was no means by which the trees could be watered at the site. Rather than attempting to jury rig some manner of watering system as requested by Oden Hardy, Dobson’s transported the trees to its place of business, and the trees remain there. The parties have stipulated that Dobson’s has paid all of the invoices except for Invoice No. 5810, totaling $12,580.00. There is no dispute that the trees at issue are “agricultural products” within the meaning of section 604.15(1). There is also no dispute that Dobson’s is a “dealer in agricultural products” within the meaning of section 604.15(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Doug Lancaster Farms, Inc., against Dobson’s Woods and Water, Inc., in the amount of $12,630.00. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Larry K. Dobson Dobson's Woods and Water, Inc. 851 Maguire Road Ocoee, Florida 34761-2915 Kelly Lancaster Doug Lancaster Farms, Inc. 3364 East County Road 48 Center Hill, Florida 33514 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Kristopher Vanderlaan, Esquire Vanderlaan & Vanderlaan, P.A. 507 Northeast 8th Avenue Ocala, Florida 34470 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
Findings Of Fact In August of 1995 Champion International Corporation gave Petitioner permission to place a sign advertising The Outpost on property that Champion owned in Walton County. The sign was to be located at the corner of the south side of State Road 20 and Black Creek Boulevard. State Road 20 is a federal-aid primary road. Black Creek Boulevard is a county maintained road. Petitioner subsequently erected a 4' X 8' outdoor advertising sign on Champion's property. The sign was located on the south side of State Road 20, two miles east of U. S. 331 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. The sign was double-sided with east and west faces. On September 1, 1995, Petitioner filed an application with Respondent requesting a permit for the 4' X 8' sign already erected on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. On September 22, 1995 Respondent issued a Notice of Denied Application informing Petitioner that it could not have a permit for a sign on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. Respondent denied this permit for two reasons: (a) the location was zoned "agricultural" which was an un-permittable land use designation; and (b) the proposed sign was located on the state's right-of-way. After receiving the Notice of Denied Application, Petitioner removed the 4' X 8' sign. On or about January 29, 1996 Petitioner filed a sign permit application with the Walton County Building Department. The application was for an off- premises sign to be located fifty (50) feet south of State Road 20 along Black Creek Boulevard. The application states that: If the proposed sign is located along a federal aid primary road, a permit from the Florida Department of Transportation (904/638-0250) must be obtained before a Walton County building permit is issued. The applicant must obtain a letter from Walton County to submit to the Department of Transportation to submit with the application. Petitioner did not apply for a permit from Respondent for this proposed sign. The Walton County Building Department issued Petitioner a permit to erect the proposed sign on January 29, 1996. Petitioner subsequently erected a second sign on the south side of State Road 20, one foot off of the right-of-way, and about fifty (50) feet from the intersection of State Road 20 and Black Creek Boulevard. It was 8' X 8', two-sided, mounted in concrete, with red, black and white copy advertising The Outpost on both sides. The sign was placed so that it could be read by east and west bound traffic along State Road 20. Only the east face of the sign could be read from Black Creek Boulevard. The subject sign was located within 660 feet of the right-of-way of State Road 20. It did not qualify as an on-premise sign because the Outpost RV Park was located two miles away. Respondent never received a permit application from Petitioner for the 8' X 8' sign. There was no material difference in the location of Petitioner's previously removed 4' X 8' sign and the new 8' X 8' sign. On May 13, 1996 Respondent issued Notice of Violation No. 10BME1996110 to Petitioner for the west facing of the 8' X 8' sign. Respondent also issued Notice of Violation No. 10BME1996111 to Petitioner for the east facing of the same sign. Each Notice of Violation contained a location description for a sign which was the same as the location description contained in Petitioner's previously denied sign permit application. The basis for both violations was that neither sign had the permit required by Section 479.07(1), Florida Statutes. The notices directed Petitioner to remove the sign structure within thirty (30) days. Respondent subsequently removed the 8' X 8' sign because Petitioner failed to do so within the prescribed time. Respondent's right-of-way on the north and south side of State Road 20 is the area that Respondent maintains which is approximately fifty (50) feet. Respondent's right-of-way map showing the maintained area is available to the public at Respondent's Right-Of-Way Office. In the past, Petitioner erected other signs along U. S. Highway 331 without obtaining a permit. Respondent issued a permit for at least one of these signs after Petitioner filed the appropriate application. Respondent required Petitioner to remove any sign that was not eligible for a permit. Respondent's inspector issued more than ten (10) notices of violation to owners of other outdoor advertising signs in the same general vicinity as Petitioner's 8' X 8' sign on May 13, 1996. These signs have been removed. There is a Reddick Fish Camp sign located on the south side of State Road 20 and west of the intersection of State Road 20 and County Road 3280. That sign is located six miles from the sign at issue here. Another sign has been nailed to a tree three-quarters of a mile west of the subject sign. There is insufficient evidence to determine whether these signs are illegal because they do not have a permit. There is no persuasive evidence that Respondent issues violations to Petitioner when it erects an off-premises sign without a permit but allows illegal signs of other property owners to exist without issuing similar notices of violation. Even if Petitioner had filed a permit application for the sign structure at issue here, it would have been ineligible for issuance of a permit because the location's land use designation was agricultural. If the property had been zoned commercial or industrial, Petitioner would have been required to have a permit because the sign did not qualify for any exceptions to Chapter 479, Florida Statutes.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order finding that Petitioner erected a sign with two faces in violation of Section 479.07(1), Florida Statutes. DONE and ENTERED this 17th day of December, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 17th day of December, 1996. COPIES FURNISHED: Paul T. Davis 4576 Highway 3280 Freeport, Florida 32439 Andrea V. Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transporation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Petitioner, IMG Citrus, Inc. (“Petitioner”), is entitled to recover the sum of $40,075.65, as alleged in the Amended Complaint.
Findings Of Fact Petitioner sold Respondent grapefruits, oranges, and tangerines following the 2012-2013 citrus season. The citrus was shipped by Petitioner to Respondent in April-May 2013, and the sales were evidenced by numerous invoices between the parties. Petitioner contacted Respondent on various occasions to request payment on the outstanding invoices, to no avail. On June 30, 2013, Respondent wrote to Petitioner apologizing for “falling in arrears.” At that time, Respondent indicated it would make partial payments, without prejudice, as frequently as possible. On September 7, 2013, Respondent again wrote to Petitioner, acknowledging, at that time, an outstanding balance of $43,543.40. Respondent requested that Petitioner allow it to enter into a promissory note for $43,543.40, with monthly payments of $800.00 per month for 54 months, and one final balloon payment at the end of the term to satisfy the outstanding amount due. Respondent also offered a bagging machine as security for the proposed promissory note. Petitioner rejected Respondent’s offer. Contrary to Respondent’s contention, no settlement agreement was reached between the parties. At hearing, the parties agreed that there is no dispute as to the amount sought by Petitioner in the Amended Complaint: $40,075.65. This amount reflects some partial payments made by Respondent on the outstanding invoices after the filing of the initial complaint. Respondent does not deny its failure to pay the outstanding invoices. Respondent does not dispute that the product he received was of acceptable quality. Respondent’s principal argument is that Petitioner’s claim is untimely because the complaint was not filed with the Department prior to May 1, 2014, as required by section 601.66, Florida Statutes. The evidence adduced at hearing demonstrates that Petitioner’s complaint was shipped by Petitioner to the Department via federal express overnight delivery on April 30, 2014. The federal express package containing the complaint was not received by the Department until May 1, 2014. The complaint was not filed with the Department until May 1, 2014, when it was received by the Department. Because the complaint was not filed with the Department before May 1, 2014, it is untimely. At hearing, Petitioner attempted to defend its late filing by contending that the April 30, 2014, shipping date of the federal express package to Respondent is the correct filing date--not May 1, 2014, when the federal express package containing the complaint was received by the Department. In support of Petitioner’s position, Mr. Kastensmidt testified, based on hearsay, that he was told by an unidentified employee of the Department, on some unidentified occasion, that the federal express shipping date is what counts, not the date the complaint is actually received by the Department. No one on behalf of the Department testified at the hearing. Furthermore, Petitioner did not identify the person who allegedly made the statement or when the statement was made. The purported statement by an unidentified Department employee, on some unidentified date, is rejected as hearsay and unpersuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Amended Complaint be dismissed as untimely. DONE AND ENTERED this 28th day of October, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 28th day of October, 2014.
