Findings Of Fact On July 20, 1987, a DOT sign inspector observed a portable outdoor advertising sign along U.S. 19 near the intersection of 108th Street North in Pinellas County which appeared to be located on the DOT right-of-way. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the edge of the paved lane. Measurements taken showed the sign to be 38 feet from the edge of the pavement. Photos taken of the sign at the time the sign was inspected reveal that the sign was damaged with the frame bent. Around noon of the day the sign was inspected, Respondent was notified by the user of the sign that the sign's frame had been bent and the sign damaged. A second call to Respondent around 1:30 P.M. advised that a warning notice had been placed on the sign. When Herb Selak arrived at the scene shortly thereafter, he observed the anchor missing from the sign and the sign damaged apparently having been hit by a construction company vehicle and pushed off of the parking lot where it had been located and anchored. Prior to the unauthorized removal of the sign onto the right-of-way by a third party, the sign was lawfully placed.
Findings Of Fact The Department issued permit number AM146-10 to the Respondent, Melweb Signs, Inc., on May 2, 1984. This permit authorized the erection of an outdoor advertising sign on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County. A sign was erected pursuant to this permit. The Respondent's application for the subject permit represented that the sign site applied for was in an area that was zoned commercial or industrial. The Respondent's manager had inquired of county representatives what the zoning was at the sign site, and was informed that the area was zoned commercial. The Respondent's manager also had a map that showed the area to be zoned commercial or industrial, but this map was not a zoning map. It had been issued by a local canal district. When the Respondent's application was filed, the Department's inspector had been shown the map the Respondent's manager had, and when the inspector inquired of the county what the zoning was, she was informed that the area was zoned commercial or industrial. In reliance on the Respondent's map and on the information received from the county, as well as on the Respondent's application, the permit was approved. The Respondent had certified on its application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Subsequently, the correct zoning for the subject site was brought to the attention of the Department's inspector. The Respondent agrees that the area is actually zoned agricultural (A-I) not commercial or industrial. Thus, the Department issued its notice of intent to revoke the Respondent's permit on April 11, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AM146-10 held by the Respondent, Melweb Signs, Inc., be revoked, and that the sign erected by the Respondent on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County, be removed. THIS RECOMMENDED ORDER entered this 10th day of December, 1985 in Tallahassee, Leon County, Florida. Hearings Hearings 1985. WILLIAM B. THOMAS Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 10th day of December, APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1746T Respondent's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Accepted. Nevertheless, none of the Respondent's proposed findings address the provisions of Section 479.08, Florida Statutes, authorizing permit revocation when "the permittee has violated any of the provisions of this chapter." COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
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 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 Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this sign permit dispute, Petitioner, Department of Transportation (DOT), seeks to revoke the permit for an off- premise outdoor advertising sign owned by Respondent, North Florida Pecan 1 & 2, Inc. (Respondent), on the grounds that the original sign was destroyed by a fire in June 1998, the newly rebuilt sign has lost its nonconforming status, and any rebuilt sign is now illegal. In response to these charges, Respondent contends that the fire that destroyed the sign was an act of criminal mischief or arson, rather than an Act of God, and thus the sign still qualifies for a nonconforming status. The sign in question is located 12.2 miles north of the Flagler County line on the west side of Interstate 95 (I-95) facing south, and is perhaps a mile or so south of the intersection of State Road 207 and I-95 (intersection) in St. Johns County, Florida. Respondent does not own the property where the sign is located, and it conducts no other business activities on that property. The property on which the sign is located is zoned Open Rural by St. Johns County (County), and it is not designated predominately for commercial or industrial uses by the County under the County's future land use map, comprehensive plan, or zoning ordinances. The sign is used to advertise Respondent's combination gas station and "open-area fruit market" located "just off" the intersection. The parties have stipulated that the sign was originally constructed more than 20 years ago before the current sign regulations became effective; under the present law, it would be a nonconforming sign and illegal. On May 27, 1998, a thunderstorm occurred in St. Johns County, resulting in between one-quarter and one-half inch of rainfall in the area. Due to a lightning strike on a tree, a 2-acre fire started approximately 1,000 feet southwest of the intersection in the vicinity of the sign. Although firefighters believed they had "knocked out" the fire within a day or two, the fire continued to smoulder under the dampened top layer of organic matter for several weeks until June 15, 1998, when it "worked its way back to the surface," broke out again, and cleared the containment line of the earlier fire. Aided by a light wind from the southeast and extremely dry conditions, the fire quickly spread eastward at the rate of 1,000 to 1,500 feet every 15 minutes and consumed several hundred acres, including the land on which Respondent's sign was located, before it was brought under control. That fire is commonly referred to as the Fort Peyton fire. In determining the cause of the Fort Peyton fire, forestry officials could not find any indicators of arson, and visual burn patterns clearly indicated that the new fire's origin was where the May 27 fire had begun. Therefore, it was officially classified as a "rekindle or breakout" of the May 27 fire, which was started by lightning. Put another way, the fire was the result of an Act of God, which is "the sudden manifestation and forces of nature." On either May 30 or June 5, 1998, depending on whether court or forestry records are accepted as being the most accurate, a fire began in Flagler Estates, which, "as the crow flies," lies approximately 12 to 15 miles southeast of the Fort Peyton fire. The Flagler Estates fire, however, was the result of an unattended illegal burn which was started by three individuals and went out of control. The fire was brought under control the same evening by firefighters, but only after some 450 surrounding acres were destroyed. The three individuals were later charged with arson. Respondent established that the prevailing winds during May and June 1998 were from the southeast and that "spoilers" or "floaters" (hot debris) from existing fires can sometimes float in the air and ignite new fires several miles away. Indeed, Respondent's investigator observed spoilers from inland fires floating through the air some 8 or 9 miles out in the Atlantic Ocean while he was fishing during that period of time. Accordingly, Respondent contends that it is just as likely that a spoiler floated northeastward from the Flagler Estates fire on May 30, 1998, and ignited the Fort Peyton blaze, some 12 to 15 miles away. If this theory is accepted, it would mean that the Fort Peyton fire would be attributable to arson, and not to an Act of God. The foregoing assumption has been rejected for several reasons. First, spoilers from the Flagler Estates fire did in fact ignite several spot fires in the area, but all of these spot fires occurred on the same day as the fire started and were within an eighth of an mile from the Flagler Estates perimeter. Second, it is highly unlikely that a spoiler would float up to 15 miles and then lie dormant for two weeks before igniting the Fort Peyton fire. Finally, the theory goes counter to the more persuasive evidence given by the supervising forester who investigated the Fort Peyton fire and concluded that it was an outbreak of the earlier fire that was started on May 27, 1998. After the sign was destroyed, Respondent rebuilt the sign at the same location using substantially the same materials that had composed the sign before it burned. However, the materials used to rebuild the sign were not part of the sign structure which was burned in the Fort Peyton fire. The new sign is the same size, shape, and height of the destroyed sign.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by North Florida Pecan 1 & 2, Inc., under sign permit number BR 252-55 is illegal and must be removed. The permit should also be revoked. DONE AND ENTERED this 17th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 day 17th of March, 2000. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 J. Stephen Alexander, Esquire 19 Old Mission Avenue St. Augustine, Florida 32084 Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact Respondent's sign was erected in 1974 on land leased by Respondent within the city limits of Sebring, Florida. At this time signs within the limits of incorporated towns and cities did not require permits or authorization from Petitioner. In 1975 Chapter 479, Florida Statutes, was changed so as to require signs located on federal-aid primary highways within the city limits to have permits issued by the Department of Transportation at no cost to the sign owner. U.S. 17 is a federal-aid primary highway. By application for outdoor advertising sign permit dated May 31, 1977 (Exhibit 4), Barnett Bank at Sebring applied for a permit to erect a sign along U.S. 17 some 200 feet from Respondent's existing sign. That application was approved by the Department of Transportation on July 12, 1977. Either before or after the Barnett Bank application was approved, Petitioner notified Respondent that its sign was in violation. Respondent is not in the sign business and no evidence was presented that Respondent has other signs. Respondent then submitted an application for permit dated July 25, 1977 (Exhibit 6), which was denied by Petitioner because it was within 500 feet of the Barnett Bank sign. The application stated this sign was within 200 feet of an existing sign. Respondent's sign has remained in its present location from 1974 to present. The structure is concrete block, brick and stucco, cost approximately $2,800 to erect, and resembles the building in which Respondent's insurance business is housed. A second application for a sign permit was submitted by Barnett Bank on April 20, 1978, and was approved by Petitioner on April 27, 1978 (Exhibit 5). The only apparent difference between Exhibits 4 and 5 is the location of the sign on Exhibit 4 is 0.24 mile north of U.S. 27 and Exhibit 5 shows this distance as 0.20 mile north of U.S. 27. No evidence was presented regarding the purpose of the second application by Barnett Bank.
The Issue The issue in this case is whether the Department of Transportation's Notice of Intent to Revoke Sign Permit should be upheld pursuant to Section 479.04, Florida Statutes (2006).1
Findings Of Fact Lamar is a company which owns and maintains road-side signs, signboards or billboards within the State of Florida. One such billboard (referred to hereinafter as the "Sign") is located on U.S. Highway 41 approximately three-tenths of a mile north of Tuckers Boulevard in Charlotte County. The Sign was given Permit Number 5202 by DOT. This Sign is a nonconforming sign, meaning that it was lawfully erected but does not comply with state or local laws enacted after it was built. DOT conducted a statewide inventory of signs in 1998 and established a database for use in monitoring nonconforming signs in the future. The database includes the type of sign; its date and method of construction; the height, including the Height Above Ground Level (HAGL); its location; whether the sign is lighted or not; and other identifying information about the sign. The inventory of signs is updated at least every two years, but generally is done on an annual basis. On August 13, 2004, during Hurricane Charley, the Sign sustained damage, which required certain repairs. Repairs of nonconforming signs is allowed, but signs are not supposed to be structurally changed during the repair. Petitioner undertook a repair of the Sign. During the course of the repairs, the Sign underwent two changes. One, the HAGL of the sign went from two feet to approximately five feet. HAGL is the distance from the ground to the bottom of the lowest sign face. Two, the Sign was repaired using four support poles instead of the three poles it had when it became nonconforming. Based upon information contained in its database, DOT concluded that the repairs resulted in unauthorized structural changes. DOT issued a Notice of Intent to Revoke Sign Permit (the "Notice") on March 21, 2006. The Notice alleged the Sign had been structurally altered and was no longer the same as when it had become nonconforming. The Notice cited Florida Administrative Code Rule 14-10.007(2)(a) as the basis for the intent to revoke. That Rule relates to modifications of a sign "such as conversion of a back-to-back sign to V type, or conversion of a wooden sign structure to a metal structure . . .". The Notice included a statement that revocation of the sign permit would become final in 30 days, unless Lamar either: (1) provided information to DOT sufficient to resolve the issue or (2) requested an administrative hearing. Lamar availed itself of the second option and, timely, filed a Petition for Formal Administrative Hearing. The DOT Notice did not specify exactly which changes to the Sign constituted a violation of Department rules. It merely cited to Florida Administrative Code Rule 14-10.007(2)(a). During the discovery phase of this action, Lamar ascertained that the violations were: (1) the HAGL had been raised from two feet to over five feet; and (2) there were four support posts instead of the original three. This information was discovered by Lamar as a result of interrogatory responses from DOT. The interrogatories had been propounded on September 22, 2006, but were not answered until December 13, 2006, some 82 days later. Upon determining the exact nature of the violation, Lamar undertook to have the repairs corrected so that the Sign was set at the correct HAGL of two feet and one support post was removed. The correcting construction work was accomplished within seven days of discovering the nature of DOT's complaint. As of the date of the final hearing, the Sign had been returned to its condition as of the date it became nonconforming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation withdrawing its Notice of Intent to Revoke Sign Permit. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2007.
Findings Of Fact Petitioner submitted Request for Admissions to Respondent Waller on 17 August 1982, and no response thereto was received from Waller (Exhibit 1). Pursuant to Rule 1.370(a), Florida Rules of Civil Procedure, these requests are deemed admitted. Included therein are the following: The sign in question is an outdoor advertising sign visible to vehicular traffic on I-4 and located within 660 feet of the I-4. The sign has never been issued a permit by Petitioner. The sign was located outside the corporate limits of a city or town at the time it was erected. The sign is not located in a commercial or industrial zoned area or in a commercial or industrial unzoned area. The structure is owned by Respondent Waller. Exhibit 2, a computer printout from the office of the Secretary of the State of Florida, shows Country Village Flea Market, Inc., to have been incorporated July 15, 1980, with all directors having the surname of Waller, and Ferris Waller as president and registered agent. The address of the corporation is the same as the address to which the Notice of Alleged Violation was sent. The area in which this sign is located is zoned R-1A, which is single- family residential, and is located inside the city limits of Plant City, Florida.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of fact entered into by the parties and the entire record compiled herein, I hereby make the following findings of fact: The two signs and four sign faces (hereinafter, the signs) which are the subject of these proceedings are owned by the Respondent and are outdoor advertising signs as defined in Chapter 479, Florida Statutes. One sign is located on U.S. 1, 1.35 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2294T and 86- 2295T) and the other sign is located on U.S. 1, 1.25 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2296T and 86-2297T) The Respondent purchased the signs from the Daley Outdoor Advertising Company in 1984. The signs are adjacent to and visible from U.S. 1 in Monroe County. U.S. 1 or State Road 5, is a federal-aid primary highway. U.S. 1 was open for public use at the time the notices of violation were placed on the signs. All of the signs are located within 660 feet of the nearest edge of the right-of-way of U.S. 1, State Road 5. The area in which the signs are located is zoned "GU". Mr. William Kenney is employed as the outdoor advertising administrator for the Department of Transportation, District VI. On May 29, 1986, Mr. Kenney inspected the signs and noticed that neither of the signs had a state outdoor advertising permit tag attached. At that time, Kenney placed a notice of violation on each sign face. After placing the notice of violation stickers on the signs, Kenney examined the Department of Transportation's office records pertaining to outdoor advertising signs and found no evidence of permit tags having ever been issued for the signs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued declaring that the signs involved in these cases are illegal and must be immediately removed. DONE AND ORDERED this 14th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 14th day of January, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Charles C. Papy, III, Esquire 201 Alhambra Circle Coral Gables, Florida 33134 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
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.
