Findings Of Fact In mid-1983 National had a properly permitted outdoor advertising structure bearing tag numbers AD-016-10 (south-facing sign) and AD-018-10 (north-facing sign) on the east side of U.S. 27 on leased property in Highlands County. In the latter part of 1983 this property was purchased by Young. On September 15, 1983, Young notified National that he was the owner of the property on which this sign was located and requested National to remove the sign. On September 16, 1983, Young applied for a permit to erect an outdoor advertising sign at this location. Young's application was disapproved by DOT on November 7, 1983, because DOT's records showed this to be a site occupied by a permitted sign (Exhibit 3). On or about October 26, 1983, after having received no response from National to his request for National to remove the sign, Young cut down the sign by sawing its supporting posts. On November 28, 1983, Young requested a hearing on the denial by DOT of his application for a permit for a sign at this site. On November 3, 1983, National obtained a lease (Exhibit 2) on property abutting Young's property and, on or about November 4, 1983, erected a sign on this property using the same faces from the fallen sign and attached the tags issued for its original sign. National's original lease dated 10/13/80 (Exhibit 1) with John Larino provided that either party could terminate the agreement on thirty days' notice. When Young purchased the property from Larino, he complied with the lease provisions regarding termination of the lease, including rebating the rent for the unused portion of the lease. Young erected a sign on this property on November 6, 1983, before his application had been denied and two days after National had re-erected its sign. Young obtained a county building permit on September 16, 1983, for the sign he subsequently erected. National has not applied for permit for the structure erected on the land leased from Boyd but attached permit tags AD-016-10 and AD-018-10 to the sign. The juxtaposition of the signs is as follows: proceeding north on U.S. 27, the first sign is owned by Young, next is the site of the former National sign, and then National's new sign. All of these locations are on the east side of U.S. 27, are less than 1,000 feet from a permitted sign to the south, are more than 500 feet from the sign, and all are within 180 feet of each other. When an applicant applies for a permit for a new sign, the site is inspected by a member of the Outdoor Advertising staff in the DOT district where the sign is to be located in company with the application, or the site is staked out by the applicant and viewed by a staff member. This inspection is to ascertain that the proposed sign will be located the required minimum distance from an existing sign and the proper distance from the roadway from which the sign will primarily be observed. DOT'S policy is that any relocation of the sign from the authorized location constitutes a new sign and requires the submission of a new application and approval therefor. The approved application for National's original sign was on U.S. 27 2.9 miles north of "Junction 17-Sebring." This location is on the property now owned by Young.
Findings Of Fact The Petitioner, Metro Advertising Company, is a licensed outdoor advertising company doing buiness in Orlando, Florida, through a division known as Eagle Outdoor. In 1964 the Petitioner acquired two outdoor advertising signs situated side-by-side on U.S. 17-92, 1.49 miles south of SR 436, in Seminole County, Florida. Thereafter, these signs were permitted by the Department and issued permit numbers 3988-2 and 3990-2. The Petitioner has renewed these permits each year by paying the appropriate annual renewal fee to the Department, including the renewal fees for the year 1985. Some time in 1983 the Departmet's outdoor advertising inspector noticed that the two signs which are the subject of this proceeding did not have affixed to them the permit tags as required. This inspector informed a representative of the Petitioner who was a divisional manager of the company, that these signs did not display permit tags, and advised that this be corrected. Subsequently, the Department's outdoor advertising administrator also discussed the matter of the missing tags on the subject signs with the Petitioner's divisional manager. At this time the divisional manager denied that the Petitioner owned these signs, and that there was no reason to replace the tags. On December 12, 1983, violation notices were issued by the Department charging that the signs at the subject location were in violation of the statutes and rules, and that these signs would be removed unless an administrative hearing was requested within 30 days. Since the Petitioner's logo appeared on these signs, the violation notices were directed to the Petitioner, and mailed returned receipt requested. When the time afforded to request an administrative hearing expired without any response from the Petitioner, the Department issued its final order for the removal of the subject signs. Pursuant to this order, the Department caused these signs to be removed. The signs that the Deparatment removed were nonconforming signs. If they were rebuilt they would violate the statutory spacing requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Petitioner's request for replalcement tags for permit numbers 3988-2 and 3990-2 for signs on U. S. 17-92, 1.49 miles south of SR 436, in Seminole County, be DENIED, and that the fees paid by the Petitioner for the years 1984 and 1985 be REFUNDED. THIS RECOMMENDED ORDER entered this 15th day of July, 1985 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 15th day of July, 1985. COPIES FURNISHED: Gerald S. Livingston, Esq. Post Office Box 2151 Orlando, Florida 32802-2151 Philip S. Bennett, Esq. Haydon Burns Building, MS 58 Tallahassee, Florida 32301-8064 Hon. Paul A. Pappas Secretary Dept of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the application contains knowingly false or misleading information; or Whether the Department is estopped to revoke the permits.
Findings Of Fact By application for outdoor advertising sign permits dated December 19, 1989 (Exhibit 1), Dolphin Outdoor Advertising requested permits for a sign to be located along I-4 in Polk County, Florida 100 feet west of Kraft Road. The application stated that the proposed sign was 1600 feet from the nearest permitted sign. The District DOT sign inspector to whom this application was referred for processing checked the records for signs located within 1000 feet of the proposed location under the mistaken understanding that the minimum spacing requirement for signs along interstate highways was 1000 feet. After determining there were no valid conflicting signs, the inspector, who had been employed by the department approximately six months, approved the application and tags numbered AY 108-35 and AY 109-35 were issued on February 24, 1989. In the interim, the applicant, upon learning that his application would be approved, contacted the landowner and entered into a lease for the property and on February 17, 1989, paid Florida Log and Timber $5000 for the first year's lease (Exhibit 11) on this property. The applicant also paid the finder of the site some $4300 for services and expenses in November, 1988. (Exhibits 7 and 8) In mid-March 1989, while discussing these permits with her supervisor, the inspector who had issued the permit to Respondent learned that the required spacing between signs along interstate highways is 1500 feet instead of 1000 feet which is the minimum spacing along federal-aid primary highways. By letter dated March 17, 1989 (Exhibit 3) the Department advised Respondent that permits AY 108-35 and AY 109-35 were issued in error because of a valid existing permit for a sign located 1056 feet west of Respondent's proposed sign. The permits were therefore stated to be no longer valid, and these proceedings followed. Petitioner's letter of March 17, 1989 was received by Respondent before construction on the sign started but after Respondent received a building permit from Polk County dated February 27, 1989 at a cost to Respondent of $101.20.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued revoking permits AY 108-35 and AY 109-35 issued to Dolphin Outdoor Advertising for a sign along I-4 100 feet west of Kraft Road in Polk County. DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Scott Hill, Pro Se 1718 Golfside Drive Winter Park, Florida 32972 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
Findings Of Fact On November 4, 1982, the Petitioner, Enterprise Outdoor Advertising, Inc., submitted applications for permits for two signs facing Interstate No. 4 (hereafter I-4) near the intersection of I-4 and 50th Street in Tampa, Florida. The specific location of the proposed signs is described as: Sec. 205 E/B .02 F/W Interstate I-4 50th Street and I-4 Sec. 205 E/B .02 F/E Interstate I-4 50th Streetand I-4 Both applications were disapproved by the Department of Transportation on November 9, 1982. The two signs for which Petitioner sought permits were to be located on a piece of property owned by Mr. E. B. Rood (hereafter referred to as Rood property). The Rood property is located adjacent to I-4, east of 50th Street, which runs north and south. The west facing sign application (see Respondent's Exhibit 11) was denied by the Department of Transportation because of a conflicting existing sign, Permit No. 7716-12, held by Foster and Kleiser, Intervenor. Permit No. 7716-12 was for a westerly facing sign physically located on the Rood property, pursuant to a lease between Intervenor and E. B. Rood. (See Respondent's Exhibit 4.) On November 3, 1982, Mr. E. B. Rood provided written notice to Foster and Kleiser that he was cancelling the lease. By the terms of the lease, the Foster and Kleiser sign then had to be removed within 30 days. On November 9, 1982, when the Petitioner's application was denied, the sign erected pursuant to Permit No. 7716-12 was still physically standing on the Rood property. Sometime prior to December 3, 1982, the sign was removed by Foster and Kleiser and the Department of Transportation was notified that the sign had been dismantled. (See Respondent's Exhibit 9.) Subsequent to dismantling its west facing sign, the Intervenor, Foster and Kleiser, applied for and received a permit for a westerly facing sign on a piece of property adjacent to I-4 just west of 50th Street and the Rood property. This second piece of property, located west of the Rood property, is referred to as the Bize property. At the time Foster and Kleiser applied for the westerly facing sign permit on the Bize property, there were no pending applications for a conflicting sign, and the previous conflicting sign on the Rood property had been dismantled. The application filed by Petitioner for a permit for an easterly facing sign on the Rood property was denied because of a conflicting permit, No. AG558- Permit AG558-12 was for a sign on the Bize property which would face east adjacent to I-4. At the time of Petitioner's application on November 4, 1982, no sign had actually been erected pursuant to Permit No. AG558-12. Permit No. AG558-12 had been issued to Foster and Kleiser in February, 1982, pursuant to an application accompanied by a written lease containing the purported signature of Mr. John T. Bize, the named lessor. (See Respondent's Exhibit 6.) Mr. John T. Bize died on January 1, 1977, and, therefore, was deceased on February 19, 1982, the date of the lease submitted by Foster and Kleiser with its application for Permit No. AG558-12. The only witness signature appearing on the lease was that of Thomas Marc O'Neill. Mr. O'Neill did not observe or witness the lessor sign the lease and felt, at the time he signed, that he was witnessing the signature of Ronald L. Westberry, who signed the lease on behalf of Foster and Kleiser. At the time he signed as a witness, Mr. O'Neill was and continues to be an employee of Foster and Kleiser. Subsequent to its disapproval of Petitioner's application for an easterly facing sign permit, the Department of Transportation was informed by Petitioner of the invalid lease on which Permit No. AG558-12 had been issued. By letter dated November 17, 1982, the Department notified Foster and Kleiser of the invalid lease and gave Foster and Kleiser 30 days within which to correct the problem. On November 22, 1982, the Department received a new lease for the Bize property and sign permit AG558-12. The new lease contained the following addendum: Effective date of lease shall be the of [sic] closing of purchase of said property or erection of signs, which- ever is first. There was no further evidence of the actual effective date of the lease. The Department of Transportation has a policy of requiring, with an application for a sign permit, a lease or other written evidence that the landowner has given permission to use his property for outdoor advertising purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order denying the Petitioner's two applications for outdoor advertising sign permits. DONE and ENTERED this 20 day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983. COPIES FURNISHED: Michael A. Houllis, Esquire 10525 Park Boulevard North Seminole, Florida 33542 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Steven L. Selph, Esquire Post Office Drawer 1441 St. Petersburg, Florida 33731 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
The Issue The issue in this case is whether Respondent?s Outdoor Advertising Permits should be revoked pursuant to section 479.08, Florida Statutes, because the associated sign has not remained substantially the same, has been disassembled and re-erected, or has been destroyed, as set forth in the Amended Notice of Intent to Revoke.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the State Highway System, the Interstate, and portions of the Federal-aid Primary System. Green?s Wrecker Service, begun in 1947, was one of the first wrecker services in Alachua County. Mr. Allen Green was the owner and operator. There was no precise testimony as to when Mr. Green first erected the advertising sign at issue here, but Mr. Green?s daughter, Pamela, vaguely remembered that happening: Well, I was seven or eight years old. I remember Daddy and Grandpa going down there after they opened up the road. It was woods there and we used to play on our bikes and I remember my Grandmother coming out and sitting beside the road because she was scared we was gonna get onto 301 because it was always woods back there before, and we could ride and we didn?t have her bothering us, you know. So when the woods got cleared out to 301, then, you know, Granny was sitting out there and daddy and grandpa went down there and done something, put that sign up, I guess. Based upon Pamela?s current age and her recollection, it can be roughly calculated that the sign was put up over 40 years ago. It is a small sign, about three feet by six feet, and has the words “Green?s Garage” in red letters and a smaller “Pennzoil” logo in yellow, along with a large arrow pointing toward the business. The sign sits at the intersection of US Highway 301 and 165th Avenue, the business being located about a hundred yards down 165th Avenue. The sign is important to the business because, due to the trees, one cannot see the actual building or cars at the business location from US Highway 301 until one is already at the 165th Avenue intersection, where one can finally see them through the area that has been cleared out for the road. Mr. Green turned the business over to Pamela before he died, and she has operated the business ever since. She subsequently married Mr. Gary Keen. Mrs. Pamela Green Keen incorporated the business as “Green?s Garage and Wrecking Service, Inc.” There was no evidence as to when the subsequent provision of state law or local ordinance with which the sign fails to comply was passed, but the parties stipulated that the sign is nonconforming, so it is clear that the sign was lawful when erected but could not be put up today. The sign was permitted as a wooden sign with a back-to- back configuration and two supports. That configuration has never changed. The sign was assigned tag numbers BE893 and BE894 by the Department. These tags look like small license plates that are posted on the sign and must be visible from the main travel-way. Mr. Tom Simmons is a senior outdoor advertising inspector for Cardno TBE Consultants (Cardno TBE), a contractor for the Department. Cardno TBE manages the outdoor advertising program for the State of Florida. Mr. Simmons has been employed with them for 12 years, and, before that, performed a similar job for four years with the Department. Mr. Simmons oversees 16 counties in northeast Florida, including Alachua County. Mr. Simmons was very credible in his testimony. Mr. Simmons testified that he was aware of the sign: In the due process of traveling from point A to point B on 301, I had seen it before. Like I stated earlier, after you have been out here a long time like I have, when structures disappear and go away, you pick up on it because it?s something that you are looking for constantly. On September 7, 2011, Mr. Simmons took a picture of the sign. It was down on the ground and was not erect. Mr. Keen testified that shortly before this, he had been having problems with vandals. The windshield of his tow truck had been shattered by a man whose car had been towed to Green?s Garage. That man was caught and ultimately paid restitution. A vehicle had also been stolen from Green?s Garage in June, and Mr. Keen or his wife had requested increased sheriff?s patrols at the business address in August, as evidenced by records from the Alachua County Sheriff?s Department. Mr. Keen testified that people often became upset when their cars were towed and that some were vindictive and would resort to vandalism. He said it was an unavoidable consequence of the business, since he towed cars for the Sheriff?s Department and the Florida Highway Patrol. Mr. Keen testified that he goes down 165th Avenue to US Highway 301, right past where the sign is located, almost every day. His testimony that the sign was not down for more than a day is accepted. Mr. Keen?s first action was to look for signs as to who had knocked it down, but he could not find any evidence such as cigarette butts, or cans, or footprints, so he decided it would do no good to call the police. Mr. Keen re-erected the sign. He did not have to reassemble or add to the materials on the sign in any way, since it was still intact. He just put it back up. The Department issued its original Notice of Intent to Revoke Sign Permit for Violation, dated October 26, 2011, alleging that the sign had been abandoned. Respondent denied this in its response to the Department and requested an administrative hearing. The Department did not request an administrative law judge within 15 days of Respondent?s request. Green?s Garage and Wrecker Service is substantially affected by the Department?s intended action to revoke the permits for the sign. If the permit is lost, the sign must be taken down and no new sign can be erected. Almost a year later, on October 18, 2012, Mr. Simmons took a picture of the sign which showed that it was back up in its original location. He testified that it appeared to be the same sign, constructed of the same materials as before. On March 28, 2013, the Department issued Green?s Garage an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules. At all times relevant to this proceeding, the sign remained substantially the same as it was on the date it became nonconforming. Even if it was determined that the sign did not remain substantially the same simply because it was down for a day or two, simply re-erecting the sign when no assembly or construction was required constituted reasonable repair and maintenance of the sign. The sign was never disassembled throughout the time relevant to this proceeding. Less than 60 percent of the upright supports of the sign were physically damaged at any time relevant to this proceeding. One pole was not damaged at all; the other had only very minor damage. The minor damage to one pole was not such that the normal repair practices of the industry would call for that pole?s replacement. Respondent never had an intention to abandon or discontinue the sign at any time relevant to this proceeding. The facts did not show that the sign structure ceased to exist. All the interrelated parts and material -- including the beams, poles, and stringers -- which were constructed for the purpose of supporting or displaying the message remained completely intact and never ceased to exist as an integrated structure.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Amended Notice of Intent to Revoke Sign Permit for Violation and allow the outdoor advertising permits to continue. DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2013.
The Issue Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
The Issue Whether Florida Administrative Code Rule 14-10.007(6)(b), which provides for revocation of outdoor advertising permits for nonconforming signs that are abandoned or discontinued, is an "invalid exercise of delegated legislative authority" as alleged by Petitioners.
Findings Of Fact The Department of Transportation is the state agency responsible for administering and enforcing the outdoor advertising program in accordance with chapter 479, Florida Statutes. The Department adopted Florida Administrative Code Chapter 14-10, which provides for the permitting and control of outdoor advertising signs visible to and within controlled areas of interstates and federal-aid highways. Rule 14-10.007 provides regulations for nonconforming signs. Section 479.01(17), Florida Statutes, defines nonconforming signs as signs that were lawfully erected but which do not comply with later enacted laws, regulations, or ordinances on the land use, setback, size, spacing and lighting provisions of state or local law, or fail to comply with current regulations due to changed conditions. Rule 14-10.007 provides in part that: (6) A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. "Destroyed," "abandoned," and "discontinued" have the following meanings: * * * (b) A nonconforming sign is "abandoned" or "discontinued" when a sign structure no longer exists at the permitted location or the sign owner fails to operate and maintain the sign, for a period of 12 months or longer. Signs displaying bona fide public interest messages are not "abandoned" or "discontinued" within the meaning of this section. The following conditions shall be considered failure to operate and maintain the sign: Signs displaying only an "available for lease" or similar message, Signs displaying advertising for a product or service which is no longer available, Signs which are blank or do not identify a particular product, service, or facility. Carter is licensed to engage in the business of outdoor advertising in Florida and holds an outdoor advertising permit for a nonconforming outdoor advertising sign bearing Tag No. AS 228. The outdoor advertising sign for the referenced tag number is located in Lee County, Florida ("Carter Sign"). On February 22, 2010, the Department issued a Notice of Intent to Revoke Sign Permit to Carter for sign bearing Tag No. AS 228. The notice advises that "this nonconforming sign has not displayed advertising copy for 12 months or more, and is deemed abandoned, pursuant to s. 14-10.007(6)(b), Florida Administrative Code." Petitioner Nissi is licensed to engage in the business of outdoor advertising in Florida and holds outdoor advertising signs bearing Tag Nos. BK 731 and BK 732, which signs are located in Pasco County, and BN 604, BN 605, AR 261, AR 262, AT 485 and AT 486, which signs are located in Hernando County ("Nissi Signs"). In June and July 2013, the Department issued notices of intent to revoke sign permits, pursuant to rule 14-10.007(6)(b), based on the signs not displaying advertising for 12 months or longer. The notice issued to Nissi advised that the Department deemed the signs as having been abandoned. Carter and Nissi, as owners of nonconforming signs receiving violations under rule 14-10.007(6)(b), have standing and timely challenged the rule in dispute herein.
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.
