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 The permits were therefore stated to be no longer valid, and these proceedings followed.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 =================================================================
Findings Of Fact In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was $1,055.00. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in Brevard County, Florida, be DISMISSED; and it is further RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED. THIS RECOMMENDED ORDER entered this 16th day of October, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T 86-0452T Rulings on Petitioner's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact. Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 A. J Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The central issues in this case are whether Petitioner knowingly submitted an application with false or misleading information for the purpose of securing sign permits and, if so, whether the sign permits should be revoked.
Findings Of Fact Petitioner owns a parcel located in Brevard County, Florida, upon which it desires to construct a sign with two sides (one facing north, one facing south). The parcel is located at 4121 Norfolk Parkway, West Melbourne, Florida, and is adjacent to Interstate 95 (I-95). Respondent is the state agency charged with the responsibility of regulating outdoor advertising located within 660 feet of the state highway system, interstate, or federal-aid primary highway system. It is undisputed the parcel owned by Petitioner together with the proposed two-sided sign falls within Respondent’s jurisdiction and is adjacent to I-95. The application process for sign permits follows a specified course to assure the applicant submits all requisite information and the parcel meets the statutory guidelines. In this case, Petitioner submitted not fewer than three applications for the desired permits. Each side of the proposed sign required a permit and each permit required an application. Each of the first applications was rejected and returned to Petitioner for reasons specified by FDOT. Among the reasons Petitioner’s applications were rejected were: the applicant did not answer all questions on the applications completely; the forms were not notarized; the applications did not have a signed statement from the local government official indicating the land use designation of the parcel; and the parcel identification numbers did not match on all documents. On December 17, 2012, Petitioner completed and had notarized one or two applications for the sign permits. Only one application for each side (dated December 17, 2012) was received by Respondent. Those applications indicated the zoning for Petitioner’s parcel as commercial parkway district, an acceptable zoning for the approval of a sign permit. In truth, however, Petitioner’s parcel is zoned residential. Respondent considered the applications dated December 17, 2012, complete but they contained an error other than the incorrect zoning that needed to be corrected. Based upon that error, FDOT issued a Notice of Denial and returned the paperwork to Petitioner to have the correction initialed. Once the applications were initialed, Respondent approved the applications and issued permit numbers 56284 and 56285. The applications submitted by Petitioner did not have the correct parcel identification number. Based upon the parcel identification number on the approved applications, the sign would be constructed on a parcel not owned by Petitioner. At all times material to this case, Petitioner represented it owned the parcel upon which the sign would be constructed. The parcel identified on the approved applications is correctly zoned for an outdoor advertising sign, but Petitioner’s parcel may not be. Petitioner has never intended to construct a sign on the parcel identified by its applications. Petitioner knew on December 17, 2012, that it had submitted applications with an incorrect parcel identification number. Petitioner knew on December 17, 2012, that the zoning for its parcel was residential not commercial. When Petitioner received the documents subsequent to the Notice of Denial (identified in paragraph 6), it did not correct the parcel number or advise FDOT that the parcel number was incorrect. Although the parcel numbers now matched for each section of the applications, the number related to a parcel owned by West Melbourne Holdings, II, LLC. Petitioner has no interest in West Melbourne Holdings, II, LLC. As a result, Petitioner did not accurately represent the zoning for the parcel it owns and upon which it sought to construct its sign. FDOT relies on the information submitted by applicants to determine whether a parcel is eligible for a sign permit. If an applicant submits false information, Respondent takes action to revoke a permit that was based on false information. In this case, Petitioner began to construct a sign on its property and another sign company (Petitioner’s competitor) notified FDOT that Petitioner was constructing a sign in an inappropriate location. Upon receipt of the complaint, FDOT began a review of Petitioner’s applications and discovered the applicant did not own the parcel that was approved for the sign. Although Petitioner had submitted an accurate street address, the parcel for which the sign permits were issued was not owned by Petitioner. Additionally, FDOT discovered a zoning discrepancy that would not allow approval of permits for Petitioner’s parcel. Had Petitioner submitted the correct zoning information for its parcel, the applications may not have been approved. Petitioner maintains that inaccuracies on its applications were inadvertent and unintentional. Petitioner argues it never knowingly submitted incorrect or misleading information. Having weighed the credible evidence submitted in this cause, such argument has been rejected. To the contrary, Petitioner knew the parcel number submitted on the applications dated December 17, 2012, was false. Petitioner knew the zoning for its parcel was residential. Petitioner did nothing to correct the errors after they were known and before the permits were issued. An applicant has an affirmative duty to submit truthful, accurate information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order revoking the permits for the subject sign. DONE AND ENTERED this 2nd day of October, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 2nd day of October, 2013. COPIES FURNISHED: Gary B. Frese, Esquire Frese, Hansen, Anderson, Anderson, Heuston and Whitehead, P.A. Suite 301 2200 Front Street Melbourne, Florida 32901 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Trish Parsons, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether Respondent has violated Section 479.07(1)(4)(6) and 479.11(1), Florida Statutes. Respondent is a corporation and did not have counsel present at the hearing. In the light of Rule 14-6.03, Florida Administrative Code, which provides that all entities created by law shall be represented by counsels Mr. Miller was not permitted to represent the corporation at this hearings however, he was advised that if he so desired he could testify as a witness. He elected to do so during the proceedings. At the hearing Petitioner's representative moved to withdraw the allegation of a violation with regard to Respondent's sign on Interstate Highway I-10 located 1.8 miles east of State Road 81 on the north side. The amendment of the petition was granted.
Findings Of Fact The sign in question is on Interstate Highway I-10, .9 miles east of State Road 81 on the north side, and 18 feet from the I-10 right-of-way fence which in turn is located within 6 inches of the right-of-way. The text of the sign provides directions to a Fina gasoline station. The outdoor advertising inspector of District III has observed Mr. Miller at this station in the past. The inspector established the precise location of the sign and took a photograph thereof on December 10, 1975. The sign is not in a zoned or unzoned commercial or industrial area as evidenced by observation of the inspector and a sketch of the area prepared by him together with a general highway map of the Florida State Road Department establishes that the sign is not located within the city limits of Ponce de Leon, Florida, or any other incorporated city or town. No state permit tag issued by the Department of Transportation was affixed to the sign at the time of its inspection on December 10, 1975. Although Respondent has previously submitted an application for a permit it was not issued because the sign was in violation of existing law and regulations as determined by the Department (Testimony of Williams, Jordan; Exhibits 1, 2 & 3) Respondent's service station is south of Interstate Highway I-10 and at the time it was leased the land owner informed the Respondent's representative that its location was within the city limits of Ponce de Leon. In like manner, Respondent learned by hearsay that the area that he leased for his sign was also in the city limits. Respondent was under the impression that the problem was that his sign was located in an unzoned area. Mr. Miller testified that Exhibit 1 accurately depicted his sign and that Exhibit 2, its location and conceded that he had applied for a permit which was denied and that he presently did not have a permit for the sign which was built in the spring of 1975 (Testimony of Mr. Miller).
Findings Of Fact There is no dispute regarding the facts here involved. SR 60 is a federal aid primary highway and the signs are located within the city limits of Tampa, Florida. No permit has been issued and the sign structure is located 150 feet from a permitted sign. Accordingly the signs violate the spacing requirements of the statutes. This is really the only issue here involved; however, both parties presented evidence and Respondent submitted a proposed recommended order on whether or not an application for a permit for these signs should be approved. Resolving this issue would be premature and result in an advisory opinion. However, to preserve the evidence and save having to repeat the hearing when, and if, Respondent submits an application for a permit the following is submitted. The signs in question were erected within the city limits of Tampa in 1974. At the time these signs were erected no state permit was required. In 1976 an application was submitted for a permit for these signs. This application was returned to the applicant to resubmit on new forms and be sure to complete the application (Exhibit 2). The permitted sign, from which the instant sign is not the required spacing, is located on the right of way of the cross town expressway, and when construction starts, this sign will be removed.
The Issue As to DOAH Case Nos. 14-4926 and 14-4927, the issues are whether the billboards identified in the notices of violation are located on the premises of Respondent's business and, thus, exempt from licensure; and, if not, whether the billboards are eligible for licensure pursuant to section 479.07, Florida Statutes, or, alternatively, the "grandfather" provision set forth in section 479.105, Florida Statutes. With respect to DOAH Case No. 14-4928, the issue is whether Respondent engaged in, or benefitted from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact I. DOAH Case Nos. 14-4926 & 14-4927 The Parties The Respondent in these proceedings is I-10 Pecan House, Inc. ("Pecan House"), an entity currently owned and managed by Olan Q. Nobles. As discussed in greater detail below, Pecan House is a small country store that has conducted business in Jefferson County, Florida, for nearly 40 years. The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 600 feet of, and visible from, interstate highways. The Events In or around 1976, Erma Jean Walker (Mr. Nobles' sister) and her husband, Lyman Walker, III, purchased three tracts of land that are relevant to this proceeding. The first such parcel, upon which the Walkers quickly constructed an open- air market, comprises one acre and is located on State Road 257, immediately north of the intersection of that roadway and I-10. The second relevant parcel, .18 acres in size and located a short distance to the southeast of the first tract, is situated adjacent to the westbound lanes of I-10. Upon their acquisition of this parcel, the Walkers constructed a billboard that advertised the open-air market and the related business activities conducted on the third parcel. The third parcel, which is roughly 2.3 acres in size and likewise adjoins the westbound lanes of I-10, is located less than 1000 feet to the east of the second tract. It is upon this tract that, in mid-to-late 1976, the Walkers built a concrete structure to be used for the purpose of manufacturing candy and jelly——products the Walkers offered for sale at the nearby open-air market. By the end of 1976, the Walkers also constructed (upon the third parcel) a billboard advertising the open-air market and jelly/candy manufacture. Although the billboards referenced above were visible from I-10 and located within 600 feet of the roadway——and, thus, within the Department's "controlled area"——the Walkers did not apply for outdoor advertising permits. This is because, as the Department concedes, the billboards were exempt from licensure from 1976 until the mid-1990s (or perhaps later, as Mr. Nobles asserts) under the "on premises" exemption set forth in section 479.16, Florida Statutes. Under the definition of "premises" in effect during that period, the land upon which a sign was located did not need to be contiguous to the advertised business in order for the exemption to apply. For reasons that will soon be apparent, it is necessary to inject a third billboard into this discussion: in 1993, the Walkers constructed on the third tract of land a "double-stack" billboard, which is situated less than 200 feet and 1000 feet, respectively, from the signs erected in 1976 upon the third and second tracts. Although the double-stack billboard would have ostensibly satisfied the on-premises exemption, the Walkers nevertheless applied for——and were granted——an outdoor advertising permit. For all that appears, the Department has never initiated any proceedings to revoke the permit, which remains valid to this day. In 1995, Mrs. Walker transferred control of Pecan House to Mr. Nobles, who until that time had assisted the Walkers on an as-needed basis. Soon thereafter, Mr. Nobles upgraded the open-air market (on the first parcel) to a secure building and, of particular relevance here, ceased all manufacturing activities at the concrete building (on the third parcel). At or around that time, the Legislature amended the definition of "premises" to include a contiguity requirement.3/ This is significant, for the second and third parcels——the locations of the two billboards at issue herein——are not contiguous to the first parcel but, rather, are separated by a tract in which neither the Walkers nor Mr. Nobles holds a leasehold or ownership interest. Further, there is no recorded easement connecting Mr. Nobles' three parcels. Thus, although the two billboards constructed in 1976 lost their on-premises status in the mid-1990s, this fact apparently went unnoticed by the Department for roughly 13 years. Then, in March of 2008, the Department issued notices of violation in connection with both billboards. Among other things, the notices alleged that "outdoor advertising permit[s] [were] required, but ha[d] not been issued" for the billboards, which Mr. Nobles was instructed to remove within 30 days. A short time thereafter, an inspector or other agent of the Department conducted, in Mr. Nobles' presence, an examination of the 1976 billboards and Pecan House's business operations. At the conclusion of her inspection, the Department employee erroneously opined that, in fact, there was "no problem"4/ with the billboards in question, which Mr. Nobles reasonably took to mean that the signs continued to satisfy the on-premises exemption and, thus, were exempt from licensure. The reasonableness of this understanding was bolstered by the fact that, subsequent to the inspection, Mr. Nobles heard nothing more from the Department concerning the March 2008 notices of violation.5/ More than four years later, on December 17, 2012, the Department issued new notices of violation in connection with the 1976 billboards: notice 1352, relating to the billboard constructed upon the third parcel, which presently reads "Exit Now" and bears a Shell gasoline logo (hereinafter "Exit Now"); and notice 1487, relating to the billboard erected upon the second parcel, which presently reads "Welcome to Big O's / We Appreciate Your Business" (hereinafter "Big O's"). The parties thereafter engaged in settlement negotiations, in the course of which Mr. Nobles' counsel struggled mightily to convince the Department that the billboards continued to satisfy the on-premises exemption. When the Department rejected this argument, Mr. Nobles applied for an outdoor advertising permit for each billboard. The applications were ultimately denied, prompting the Department to refer the matters to DOAH for further proceedings. Based upon the evidence adduced at final hearing, it is evident that the billboards in question no longer meet the on-premises exemption and, thus, are subject to removal unless the signs meet either the current statutory requirements for a permit or, alternatively, the "grandfather" provision set forth in section 479.105, which authorizes licensure if the billboards satisfy earlier statutory criteria and certain other conditions. Eligibility for Licensure – "Exit Now" Beginning first with the "Exit Now" billboard, the record makes pellucid that the current statutory requirements for licensure cannot be satisfied. Among other things, the sign is located a mere 190 feet from the permitted, double-stack billboard erected in 1993, a distance far less than the minimum spacing requirement of 1500 feet. See § 479.07(9)(a)1., Fla. Stat. As for the potential applicability of the grandfather provision to the "Exit Now" billboard, it is critical to observe that the Department's delay of nearly five years (March of 2008 through December of 2012) in pursuing removal has placed Mr. Nobles at a significant disadvantage. In particular, had the Department moved forward in 2008——instead of inexplicably abandoning the action, which, along with the statements of its inspector, led Mr. Nobles to believe, incorrectly, that no permit was required——Mr. Nobles likely would have applied for a permit,6/ which the Department would have evaluated pursuant to the version of the grandfather provision in effect at that time. This is significant, for the 2008 codification of the grandfather provision, which remained unchanged until July 1, 2014, did not preclude licensure in situations where a billboard had previously enjoyed on-premises status or some other recognized exemption from the permitting requirement. Further, the pre-July 1, 2014, grandfather provision was quite favorable in that it allowed a potential licensee to demonstrate that the billboard would have met the criteria for licensure in effect "[a]t any time during the period in which the sign has been erected." § 479.105(1)(e)2., Fla. Stat. (2013)(emphasis added). The current version of the grandfather provision is quite a different animal. For one thing, grandfather status can only be granted if the billboard at issue "has never been exempt" from permitting. § 479.105(1)(c)2., Fla. Stat. (2014) (emphasis added). For another thing, the current grandfather provision looks not at "any" time in which the sign has been erected but, rather, at the criteria in effect during the initial seven years in which the sign was subject to the Department's jurisdiction. § 479.105(1)(c)2.b., Fla. Stat. (2014). As Mr. Nobles readily acknowledges, his effort to obtain a permit for the "Exit Now" billboard is a nonstarter under the 2014 version of the grandfather provision, whose plain language prohibits the issuance of a permit where, as here, the sign was previously exempt from licensure. This does not end the matter, however, for the undersigned finds that the Department's unjustified delay in pursuing removal——along with its agent's erroneous statement that the billboard was legal, upon which Mr. Nobles relied——requires that the "Exit Now" application be evaluated under the version of the grandfather provision that was in effect from 2008 until July 1, 2014. Pursuant to the pre-2014 codification of section 479.105, "grandfathering" was authorized if the owner could demonstrate: 1) that the sign in question had been unpermitted, structurally unchanged, and continuously maintained at the same location for at least seven years; 2) that, at any time during the period in which the sign has been erected, the sign would have satisfied the criteria established in chapter 479 for issuance of a permit; 3) that the Department did not file a notice of violation or take other action to remove the sign during the initial seven-year period in which the sign was unpermitted, structurally unchanged, and continuously maintained at the same location; and 4) that the sign is not located on a state right-of-way and is not a safety hazard. § 479.105(1)(e), Fla. Stat. (2013). Upon such a showing, the Department was authorized to treat the sign as conforming or nonconforming and issue a permit. Turing to the merits, the first prong is easily satisfied, as the "Exit Now" sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for 39 years, far longer than the seven-year period the statute requires. The third prong is also met, for the record makes clear that the Department took no action to pursue removal during the initial seven-year period, i.e., 1976 through 1983, in which the sign was unpermitted, structurally unchanged, and continuously maintained. In addition, the Department stipulates that the sign neither poses a safety hazard nor is located upon a state right-of-way, thereby satisfying the fourth prong.7/ This leaves only the second prong, which asks if the sign would have met the criteria for licensure at any time after it was erected. The selection of any time period subsequent to 1993 would surely doom the application, as the sign would be unable to satisfy the minimum spacing requirement due to its close physical proximity to the double-stack billboard——which, as noted previously, was issued a permit in 1993 and remains licensed. Prior to 1993, however, there does not appear to be any spacing conflict that would preclude licensure in this instance.8/ With the spacing concern resolved (and the relevant period of inquiry narrowed to "any" time between 1976 and 1993), the undersigned turns to the only other criterion for licensure that appears to be in dispute: section 479.111(2), Florida Statutes, which authorizes the issuance of a permit only if the sign is located in "commercial-zoned and industrial-zoned areas or commercial-unzoned or industrial-unzoned areas." Unfortunately, this issue cannot be resolved on the instant record, for there is a dearth of persuasive evidence concerning the zoning designation of the third parcel (the location of the "Exit Now" sign) during the critical period of inquiry. Indeed, the record contains only the Department's speculative assumption that, because the area is presently unzoned, it therefore must have been unzoned at all times in the past.9/ Further, even accepting the Department's assumption at face value, it is impossible to determine whether the business activities conducted on the parcel from 1976 until the mid- 1990s——namely, the manufacture of candy and jelly and the sale of pecans——would satisfy the use test at any time between 1976 and 1993.10/ Under ordinary circumstances, such an absence of evidence would necessitate an adverse result for the permit applicant. Owing, however, to the unusual history and posture of this case, as well as the undersigned's conclusion that the pre-2014 grandfather provision should govern, it is recommended that the Department reevaluate Mr. Nobles' application to determine if the third parcel could have satisfied the requirements of 479.111(2) at any point between 1976 and 1993. Eligibility for Licensure – "Big O's" The undersigned turns next to the "Big O's" sign, which, like the "Exit Now" billboard, is unable to satisfy current licensing criteria due, among other reasons, to its close proximity to the double-stack billboard.11/ Further, as with the "Exit Now" billboard, the fact that the "Big O's" sign was previously exempt from licensure (owing to its on-premises status from 1976 through the mid-1990s) renders it ineligible for licensure under the 2014 codification of the grandfather provision. However, in sharp contrast to the "Exit Now" billboard, the "Big O's" sign is positioned within 500 feet of an interstate exit ramp, thereby constituting a safety hazard. This distinction is fatal to Mr. Nobles, as every codification of the grandfather provision from the mid-90s (when the sign lost its on-premises status) onward has prohibited the licensure of billboards that present a safety issue. The short of it, then, is that the sign was no more eligible for licensure in the past than it is today, which obviates the need for any further analysis under the pre-2014 version of the grandfather provision. For the reasons articulated above, Mr. Nobles has failed to prove that the "Big O's" sign is exempt from licensure by virtue of the "on-premises" exception. Further, the evidence conclusively demonstrates that, due to safety concerns, the sign would not have been eligible for licensure at any point in time. Accordingly, the undersigned is constrained to recommend the sign's removal pursuant to section 479.105. II. DOAH Case No. 14-4928 As noted earlier in this Order, DOAH Case No. 14-4928 involves an allegation that Mr. Nobles engaged in——or benefitted from——the unpermitted removal, cutting, or trimming of vegetation. The relevant facts are recounted below. On January 21, 2013, Mr. Nobles executed a lease agreement with Michael McDougal, who owns a parcel of land adjacent to the eastbound lanes of I-10, approximately .6 miles from County Road 257. In relevant part, the terms of the lease authorized Mr. Nobles to place on the property a pickup truck, attached to which was a billboard that advertised the I-10 Pecan House. Shortly thereafter, in late January 2013, Mr. Nobles relocated the truck to a position on Mr. McDougal's property a short distance to the south of the fence line that separates the parcel from the Department's right-of-way. But trouble soon followed: in late February or early March, the Department received several reports of unusual vegetation removal in the general area of Mr. Nobles' truck sign. In response, the Department requested one of its contractors, Metric Engineering, Inc. ("Metric"), to conduct a field inspection of the area. The inspection was performed on or about March 12, 2013, by Bill Armstrong, a certified arborist employed by Metric. During the course of his inspection, Mr. Armstrong observed, first, an area that the Department had previously cleared to facilitate the installation of a new fence, which had yet to be installed. This particular area, which ran along the length of the fence line and had been cleared within the preceding six months, had a width (as measured from the fence toward the roadway) of approximately 12 feet. Immediately beyond this 12-foot zone, however, Mr. Armstrong noticed evidence of other activity that had occurred much more recently. Specifically, Mr. Armstrong observed, on the side of the fence immediately opposite Mr. Nobles' truck, an area 120 feet in length (parallel to the fence line) and approximately 25 feet in width that had been cleared of vegetation. Within this 120 by 25 foot area, Mr. Armstrong discovered 30 tree stumps, which, upon close examination, exhibited signs of having been recently cut. Such indications included the presence of sawdust; the fact that the stumps were bright in color and relatively clean; and the observation of fresh debris at both ends of the swath. These findings were recorded in a report dated March 25, 2013, which Metric promptly forwarded to Morris Pigott, the Department's Project Manager of Vegetation and Resource Management. Several weeks later, Mr. Pigott conducted his own site visit, during which he examined the particular area that had concerned Mr. Armstrong. Consistent with the findings contained in Metric's report, Mr. Pigott observed, within the 120 by 25 foot area, numerous, freshly-cut tree stumps. Mr. Pigott further concluded, quite reasonably, that this activity had not been performed by the Department or one of its contractors, for the stumps had not been cut to ground level, the vegetation immediately to the east and west of the area was "very dense," and the area had not been "grubbed."12/ (As explained during the final hearing, "grubbing" involves the removal of the top six inches of surface material, an action designed to prevent regrowth.) To cinch matters, Mr. Pigott observed that the selective clearing of the 120 by 25 foot area had enhanced the visibility of Mr. Nobles' truck-mounted billboard for eastbound traffic. Thereafter, on April 14, 2013, Mr. Pigott cited Mr. Nobles for violating section 479.106(7), which provides that any person who engages in or benefits from the unauthorized removal of vegetation shall be subject to an administrative penalty. Mr. Pigott further notified Mr. Nobles that, pursuant to Florida Administrative Code Rule 14-10.057, the Department intended to assess mitigation in the amount of $8,304.25. Mr. Nobles promptly denied any and all involvement in the removal, claiming that a road crew had cleared the vegetation two years earlier. In response, Mr. Pigott contacted Mr. Armstrong, disclosed Mr. Nobles' explanation, and asked that a follow-up inspection be performed. Mr. Armstrong conducted his second inspection on August 8, 2013. At that time, Mr. Armstrong observed that Mr. Nobles' truck-mounted billboard was still present, and that the stumps within the 120 by 25 foot area had sprouted and grown to a height of two to three feet. Samples of the sprouts were collected, which Mr. Armstrong later examined for evidence of internodes——i.e., rings that denote growth, with one ring forming during each growing season. Due to the absence of internodes, Mr. Armstrong concluded that the stumps were in their first growing season, thereby eliminating any possibility that the vegetation had been cleared several years earlier.13/ Finding that the evidence proves clearly and convincingly that Mr. Nobles benefitted from the unauthorized vegetation removal, the undersigned turns finally to the question of mitigation. As noted above, the Department seeks mitigation in the amount of $8,304.25, a figure derived from Mr. Armstrong's use of the formula referenced in rule 14-10.057. It is at this juncture that the Department's case falters. Although Mr. Armstrong offered credible testimony concerning the number and species of trees (water oaks, Florida maples, and the like) that were removed from the area, the record evidence regarding their market value consists entirely of hearsay. Indeed, the Department called no witness who possessed any firsthand knowledge as to the market value of the trees; instead, it presented only the testimony of Mr. Armstrong, who explained that he had telephoned three nurseries, obtained price quotes over the phone, averaged the three figures, and plugged the averages into the formula. To be clear, the undersigned has no quarrel with either the formula or Mr. Armstrong's initial reliance upon the price quotes. The problem is that, in the absence of a stipulation from Mr. Nobles concerning the amount of mitigation, the Department was obligated to adduce at least some non-hearsay evidence of the market values——the starting point of the calculations. Inasmuch as the record is devoid of such evidence, the Department's request for mitigation must be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: DOAH Case No. 14-4926 RECOMMENDED that the Department of Transportation enter a final order finding that the billboard identified in Notice of Violation 1487 ("Big O's") is illegal and subject to removal pursuant to section 479.105, Florida Statutes. It is further recommended that the Department enter a final order denying the related application for an outdoor advertising permit. DOAH Case No. 14-4927 RECOMMENDED that the Department of Transportation take no further action on Notice of Violation 1352 until such time that it reevaluates (under the pre-July 1, 2014, codification of section 479.105) the related application for an outdoor advertising permit. If the application is granted, the Department should enter a final order dismissing Notice of Violation 1352. In the event, however, the application is once again denied, the Department should afford Respondent a point of entry into the administrative process. DOAH Case No. 14-4928 RECOMMENDED that the Department of Transportation enter a final order finding Respondent guilty of violating section 479.106, Florida Statutes, and imposing an administrative fine of $1,000.00 DONE AND ENTERED this 4th day of May, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 4th day of May, 2015.
Findings Of Fact The Department of Transportation cited National Advertising Company for the maintenance of eight (8) outdoor advertising signs without current permit tags in violation of spacing requirements. The subject signs are listed on Exhibit 1 attached hereto and are owned and maintained by Respondent. The subject signs are located along I-95 in the vicinity of Orlando, Florida. The subject signs had valid county tags for 1972. The subject signs had no tags for 1973, but by agreement between Respondent and Petitioner this lack of 1973 tags has been disregarded. In the fall of 1974 Petitioner issued Respondent county tags for the subject signs. When affixing these tags to the signs Respondent discovered that there was some confusion over whether the signs were in the county or were in the city limits of Orlando. Respondent went to the City offices and asked if the signs were in the city limits and was told that the City did not know. Respondent then went to the County offices and was told that the signs were in the city. Respondent them communicated this information to Mr. Kennedy, an employee of the Department of Transportation in the DeLand office who agreed that the tags would not be put on the subject signs unless it was determined at some later date that the signs were actually located in the county and not in the city. At the time of this agreement Respondent was in possession of the 1974 county tags and was prepared to affix then to the subject signs. Because of the agreement however, the tags were not affixed to the subject signs. Confusion persisted over the question of whether the signs were located inside or outside of the city limits. In the fall of 1975, Respondent submitted a permit application for annual renewal for the subject signs requesting city tags. Petitioner granted this application and in late 1975 issued city tags for the subject signs. These tags have since been affixed to the subject signs and remain there at the time of this hearing. Representatives of Petitioner visited the Orange County Zoning Department on February 11, 1976 in attempt to determine whether the subject signs were located in the county or in the city. Petitioner's representatives determined that the signs were located in the county. During 1974 and 1975 there was a great deal of confusion on the part of both Petitioner and Respondent concerning the question of whether the subject signs were in Orange County or in the City of Orlando. Respondent, in good faith, diligently attempted to resolve the confusion. It appears however, that Petitioner and Respondent were not able to resolve the confusion until early 1976 and shortly before this hearing. Respondent made no application for 1976 permits for the subject signs before May 13, 1976.
The Issue There are two separate issues in this case: (1) Whether Petitioner breached its contract with Respondent by not making payments for a sign lease, thereby resulting in the sign permit becoming invalid; and (2) Whether Petitioner constructed a roadside sign illegally, i.e., without a permit.
Findings Of Fact Petitioner, SG Outdoor, is a company engaged in the business of outdoor advertising in Florida. Respondent is the State of Florida ("State") agency responsible for monitoring compliance with State and Federal laws relating to outdoor advertising. According to those laws, signs within 660 feet of primary or interstate roadways visible from those roadways are subject to advertising regulations. There is currently a 1,500-foot spacing requirement (up from 1,000 feet in 1984) between signs. Further, signs must be located on land zoned for commercial and industrial use. Petitioner owns two signs which are at issue in this proceeding. One of the signs is a single facing sign of wood construction with a seven-foot height above ground level. The sign is assigned Tag No. AU557. The sign is situated just off Interstate 4, .871 miles east of State Road 33 in Polk County, Florida. This sign will be referred to herein as the "Original Sign." The Original Sign was built in 1971 and was located, at all times relevant hereto, on land owned by Mrs. Ona Grimes until that land was purchased by the State in October 2002. Petitioner also constructed another sign at approximately the same location. This sign, referred to herein as the "New Sign," has a double-faced, single-metal pole and is considerably higher in height than the Original Sign. Both the Original Sign and the New Sign are located on property which DOT contends is zoned as "Pasture, with residence." However, Polk County did away with its zoning ordinance in March 2000 and replaced it with Land Use Districts. The current Land Use District designation for the site is Business Park Center (within the Green Swamp Area of Critical State Concern). There was no competent testimony at final hearing as to whether that designation constitutes commercial or industrial zoning for purposes of roadside signs. The Original Sign was purchased by Petitioner in 1991 and was located on the Grimes property. Petitioner entered into a Ground Lease with Grimes that had a term of 30 years at a payment of $1,500 per year. In 2002, DOT entered into negotiations with Grimes to purchase the property. When DOT purchases property on which a roadside sign already exists, DOT may take the sign by way of condemnation through eminent domain (sometimes referred to by DOT as a "Take"). In such cases, the State must reasonably compensate the sign owner for the taking of its sign. In the alternative, the State may assume the sign lease and become a lessor to the sign owner. In that case, the sign owner must make its lease payments directly to the State. On May 22, 2002, DOT sent a letter to Petitioner explaining that DOT was in the process of acquiring the right of way on which the Original Sign was located. DOT offered to purchase (or Take) the sign from Petitioner for $17,300. While that offer to Petitioner was pending, DOT went forward with the purchase of the Grimes property. The purchase agreement for the property was signed by Grimes on July 11, 2002. Four days later, a letter from DOT to Petitioner was issued which said: Subsequent to receiving agreement and signed ODA [out door advertising] disclaimer from the property owner, an offer has been made to SG Outdoor, Inc. for the purchase of the ODA structure. Negotiations are ongoing. However, the purchase of Grimes property did not occur immediately. Meanwhile, in August 2002, Grimes entered into an illegal lease with Lamar Advertising, giving Lamar the same rights it had already contracted away to Petitioner. Petitioner was unaware of the lease with Lamar at that time. Such a lease would have been in violation of the already-existing lease between Grimes and Petitioner. At almost the same time, a DOT memorandum indicated that DOT was still "involved in ongoing negotiations" with Petitioner concerning the sign. The Grimes property purchase (by DOT) finally closed on October 1, 2002, at which time DOT became the owner of the Grimes property. Because of this fact, Petitioner was supposed to make its annual lease payments to the State of Florida ("State") as the new owner. Stated differently, the State became Petitioner's new lessor. On October 14, 2002, Lamar Advertising filed a Sign Permit Application with the Polk County Building Division. The application was for approval of its sign on the Grimes property. The application included a copy of Lamar's lease with Grimes; the lease had a 10-year period and a payment of $4,000 per year.1 On July 8, 2003 (ten months after DOT purchased the property), Petitioner filed a permit application with Polk County for the New Sign. Petitioner did not, at that time, have permission from DOT to erect a new sign, but believed it could obtain that permission after the fact. Petitioner then went forward with the construction of the New Sign. Meanwhile, Petitioner sent Grimes a check in October 2003, for its lease payment for the period June 1, 2003, through May 30, 2004. By that time, the State already owned the Grimes property. A member of the Grimes family sent Petitioner's check back to Petitioner in January 2004, explaining that all payments should be made directly to the State. There is no evidence in the record as to whether Petitioner attempted to make a lease payment to the Department at that time or at any other time. In November 2003, DOT issued a certified letter to Petitioner addressing Sign Permit No. AU557 that said: On October 2, 2002, the above referenced parcel was purchased by the Florida Department of Transportation. Although the Department will honor an existing lease, it will not engage in any new lease agreements nor grant permission for the referenced sign to remain. Since any potential oral agreement with the previous owner has expired, the Department requests that the [Original] sign be removed. Clearly DOT was mistaken. Petitioner had a written, not oral, lease with the prior owner. In response, Petitioner sent DOT a copy of its Ground Lease with Grimes. At that time, Petitioner also asked for a meeting with DOT's acquisition director to continue negotiating a fair price for the Original Sign. Several months later (on July 9, 2004), DOT issued its Notice of Violation regarding the Original Sign. The notice said "that the outdoor advertising sign referenced above has been acquired by the Department" (rather than saying the Department had purchased the land). The notice directed Petitioner to immediately remove the sign from the premises. The notice was partially in error; DOT had actually acquired the land, not the sign. Petitioner was in breach of its lease with the State by failing to make lease payments as required by the lease which DOT had assumed. However, it is unclear as to whether, upon notice of receipt of the written lease, DOT had ever advised Petitioner to send its lease payments directly to the Department. The Notice of Administrative Hearing Rights attached to the DOT Notice of Violation indicates a deadline of 30 days from receipt of the Notice for filing such a request, i.e., on or about August 10, 2005. Petitioner responded to the Notice with another letter (dated July 14, 2009) explaining again that it had a valid lease with Grimes for the sign location. Petitioner's letter asked DOT to abate its violation notice and reinstate Petitioner's permit. It also stated that "[i]f the State decides not to acknowledge the Judicial process [the ongoing probate dispute with the Grimes family concerning the lease with Lamar] and still proceeds with the Notice of Violation, then upon receiving your next correspondence, we will exercise our privilege to request an administrative hearing." Petitioner contends that the quoted statement constituted its request for an administrative hearing. However, the plain reading of the statement indicates that it is a statement of future intent based upon future actions by DOT. DOT then issued a letter dated August 10, 2004, to Petitioner explaining that the permit for the Original Sign had been revoked. The letter directed Petitioner to remove the sign. The letter stated that if Petitioner does not do so, then DOT would have the right to remove the sign. (As of the date of the final hearing in this matter, the sign was still in place.) The August 10 letter, in response to Petitioner's July 14 letter, appears to be the "next correspondence" Petitioner had requested. The exercise of its right to an administrative hearing would, therefore, be due on or about September 11, 2004. On September 8, 2004, Petitioner sent a letter to Holschuh declining DOT's offer to purchase the Original Sign for $17,000. That offer had been made in May 2002.2 This letter suggests a counter-offer of $82,500 as the purchase price. The letter did not invoke Petitioner's right to an administrative hearing. Holschuh responded that she was not involved in acquisitions, and Petitioner should contact the district office (with whom Petitioner had previously negotiated). Instead of heeding Holschuh's directions, Petitioner then sent her another letter asking her to send the correspondence on to someone in the acquisition division. The new letter also repeats the counter-offer of $82,500. This letter did not invoke Petitioner's right to a formal hearing, either. About one year later, on October 6, 2005, DOT issued another Notice of Violation, this one addressing Sign Permit No. AU557a (which Holschuh at final hearing said referred to the Original Sign, although there was no "a" nomenclature on the July 9, 2004, Notice of Violation). Also, on October 6, 2005, DOT issued a Notice of Violation addressing Sign Permit No. AU557a#2, which Holschuh said referred to Petitioner's New Sign, even though no permit for the New Sign had ever been issued by DOT. The New Sign by this time had been completed and was being used for outdoor advertising. Petitioner understands the need for a permit to construct a new outdoor sign on the State road right-of-ways, but opined that it believed it could do so after the fact. Petitioner has only obtained approval from Polk County for erecting the sign, an event necessary for construction purposes, but irrelevant to DOT requirements. In the letter to DOT from Petitioner dated October 26, 2005 (and presumably accepted by DOT as Petitioner's request for a formal hearing), reference is made to Sign Permit No. AU557a#2, i.e., the New Sign. However, the letter addresses the Original Sign and its perceived value by Petitioner. It is patently unclear as to which sign is actually being addressed, but facts surrounding both signs were presented at final hearing and both have been addressed herein. Nonetheless, Petitioner's October 26, 2005, letter was submitted within 30 days of the latest Notice of Violation and was presumably intended to invoke Petitioner's right to a formal administrative hearing. This letter was then forwarded to DOAH by DOT in March 2009, for the purpose of conducting the hearing. (No evidence was presented as to why the DOT's cover letter and Petitioner's request for hearing were not submitted to DOAH until three-and-a-half years after the letter was written.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, reversing the revocation of Sign Permit No. AU557 and providing Petitioner, SG Outdoor, just compensation for that sign. Further, the final order should deem the newly constructed sign on the same site to be unauthorized and order its removal. DONE AND ENTERED this 19th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 19th day of November, 2009.
