The Issue The issues to be resolved in this proceeding concern whether the Petitioner's timely filed a Petition challenging the voiding of an outdoor advertising permit and whether the Department properly denied a resulting application for issuance of a new permit for the subject outdoor advertising structure.
Findings Of Fact The Community Sign Service, Inc. (Community) received permits numbered 54510 and 54511 from the Department on February 8, 2006, authorizing erection of a two-sided billboard in Lanark Village along U.S. Highway 98 in Franklin County, Florida. That permit included a statement that a completed outdoor advertising sign must be erected within 270 days of issuance of the permit or else the permit would become void. The Petitioner, Community, erected a sign structure consisting of a "monopole" structure at the permitted location. It has two rectangular "wind frames" surrounded by a catwalk on top. The Petitioner, Mr. Franklin, intended attaching a vinyl wrap to the structure with the advertising copy or an "available for rent" message, but that had not been accomplished as of December 4, 2006. On December 4, 2006, the Department, through an inspection by a Department contractor, inspected the site and determined that the sign had not been completed because the face and message were not on it. Therefore, on December 14, 2006, the Department issued a notice advising the Petitioners that the permit was void, the sign illegal, and it needed to be removed because the completed outdoor advertising sign had not been erected at the site within 270 days of the date of permit issuance. The notice to the Petitioners notified them that they could elect to challenge the action by requesting an administrative proceeding within 30 days of the date of the notice, in accordance with the notice of appeal rights on the reverse side of the notice form. The reverse side of the form stated that any petition must be filed with the clerk of agency proceedings by 5:00 p.m. no later than 30 days after the Petitioners received the notice. Several other notices of violations for failure to post Department-issued "tags" on signs were issued to Mr. Franklin. The Department tags were required to be posted on signs within 30 days of their issuance, and on November 16, 2006, Mr. Franklin received two notices that outdoor advertising permits were void, for failure to display advertising copy on two sign structures in Gulf County, Florida. Mr. Franklin met with Ms. Holschuh of the Department in late 2006 or early 2007, to discuss the notices that he had received from the Department and to show her several photographs, taken on his digital camera, of several signs. One of the photographs he alleged showed the Franklin County sign with a "for rent" sign or message, with a phone number at the base of one of the wind frames on the sign structure. This is referred to in the industry as "the apron." The camera did not display the date of the photograph in the picture, but Mr. Franklin stated that he took the picture on December 20, 2006. Ms. Holschuh asked him to provide her with a copy of the photograph but he did not return with a copy because he could not get one to print from his camera with a date on it. Mr. Franklin was given until September 20, 2007, after the hearing, to present the photo as a late-filed exhibit, with the Department accorded an opportunity to submit a counter exhibit, but the photograph exhibit was never filed. In any event, the condition which resulted in the void notice was observed by the contractor inspector on December 4, 2006, and the notice of void permit was issued on December 14, 2006. After he was unable to resolve the void permit issue with the Department, Mr. Franklin submitted a new application under his own name, for a permit for the sign structure at issue, on February 15, 2007. He submitted it in his own name because Section 479.07(5)(a), Florida Statutes, provides that an entity whose permit has been voided may not be eligible for a new permit at the same location for 270 days after the date on which the permit became void. Therefore, Mr. Franklin submitted the application for a new permit in his own name so it would not be the same entity applying. The application for advertising permits for the same location in Franklin County was denied by the Department on the same day, with an explanation that U.S. 98 in Franklin County had recently been declared a "scenic byway" and under the law pertaining to that status, no new permits could be issued. On February 21, 2007, Mr. Franklin submitted a letter to the Department's clerk challenging the voiding of the original permit and stating "this sign had a phone number and for rent sign posted to the apron as there was no sign face to attach the sign to." An Amended Petition challenging both the voiding of the prior permit and the denial of the application for a new permit was submitted to the Department on April 9, 2007.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Department of Transportation denying the Petitioner's applications for state outdoor advertising permits, based on the scenic highway designation referenced hereinabove, and dismissing the challenge to the voiding of the permit as untimely filed and directing consequent removal of the subject sign in accordance with the provisions of Section 479.105, Florida Statutes (2006). DONE AND ENTERED this 10th day of December, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 10th day of December, 2007. COPIES FURNISHED: Leon Franklin 336 Mills Bayou Drive Milton, Florida 32583 Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 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 In March of 1984 the Respondent applied to the Department for a permit to erect a sign facing east at the location in question in this proceeding. The actual location proposed was 350 feet from the right-of-way of U.S. 17/92/441, adjacent to Oak Ridge Road, in Orange County, Florida. U.S. 17/92/441 is a federal-aid primary highway. Oak Ridge Road is a non-controlled road. There is another sign owned by the Respondent located 20 to 25 feet from the subject sign, but there is no evidence in the record to show which direction this other sign faces, or whether the two signs are on the same side of the highway. By memorandum dated April 5, 1984, the Department returned the Respondent's application for the reason that the sign location requested "is not on a federal-aid primary highway", and the Respondent "need only comply with local regulations". This memorandum stated further that "a state sign permit is not required" to locate a sign at the subject site. The application submitted by the Respondent in March of 1984 was returned with the notation on it that the proposed sign "need only comply with local regulations". Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sought a permit. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/82/441 and at right angles to Oak Ridge Road. The notice of violation issued for the subject sign in July of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1984. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. It was as a result of this erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1984 with the notation on it that a permit was not required. This erroneous interpretation allowed the Respondent's sign to be built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on July 26, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether respondent has erected or maintained a sign on State Road 40 at the intersection with North East 49th Terrace in Marion County without the requisite permit and in violation of spacing requirements?
Findings Of Fact Respondent Arthur Steen owns an outdoor advertising sign located at the intersection of State Road 40 and Northeast 49th Terrace, within 660 feet of the right of way of State Road 40, which "has continued as Federal-Aid Primary highway [from October 24, 1955] up to the present date." Joint Stipulation. Mr. Steen's sign, which is visible from the main travelled way of State Road 40, proclaims on east and west faces: Marion Pines Senior Mobile Home Community Model Homes Turn Here Arrows point toward "Marion Pines," the new name of the first trailer park in Marion County. A subdivision lies between State Road 40 and the trailer park where Mr. Steen rents lots to mobile home owners. Mr. Steen's sign stands 599 feet west of another outdoor advertising sign, on the same side of the highway. DOT has issued permits to Harry Moody Signs for the other sign, which has two sign boards. Petitioner's Exhibit No. 5. Mr. Steen's sign stands on land that, like the trailer park and the subdivision, once belonged to Ross Allen. Mr. Steen and Mr. Allen originally paved what is now North East 49th Terrace (until recently known as North East 50th Avenue) and Mr. Steen maintained the road thereafter. Now the county has posted street signs. The sign at issue does not stand on premises Mr. Steen owns. The sign has stood within the right of way of the road leading to the trailer park since 1969 (although the copy was changed in 1983 and again in 1991; and the sign was enlarged in 1983.) At one time, Ross Allen offered to convey what has become North East 49th Terrace to Mr. Steen, Respondent's Exhibit No. 2, but Mr. Steen never accepted the offer.
Recommendation It is, accordingly, RECOMMENDED: The DOT declare respondent's sign in violation. DONE and ENTERED this 31 day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31 day of March, 1992. COPIES FURNISHED TO: Vernon L. Whittier, Esquire Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32399-0458 Frank C. Amatea, Esquire 500 N.E. 8th Avenue Ocala, FL 32670 Ben G. Watts, Secretary ATTN: Eleanor Hunter Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Suwanee Street Tallahassee, FL 32399-0458
Findings Of Fact By Advertising Sign Permit dated March 4, 1985 (Exhibit 3), Clear Vu Media was authorized to locate a sign with both east and west facing boards on State Road 52, 2- 1/2 miles east of Plaza Drive (Little Road). The permit was issued by Linda K. Brown, outdoor advertising inspector for DOT. Prior to issuing the permit Brown visited the proposed site and approved the location as meeting the requirements for an outdoor advertising sign. Subsequent to the erection of the sign Brown inspected the sign and found the sign to be located on a site other than the approved site. The existing structure is located 890 feet from another existing and permitted sign. The approved site is located at least 1,000 feet from this existing sign and from any other permitted sign along State Road 52. State Road 52 is a federal-aid primary highway. A Notice of Hearing was sent to Clear Vu Media, Post Office Box 2038, New Port Richey, Florida 33552, by U.S. Mail and was not returned as undelivered.
Findings Of Fact In May of 1980, the Petitioner, Peterson Outdoor Advertising purchased a sign from Lamar Advertising Company. This sign is located on the east side of State Road 434, approximately 350 feet north of State Road 50 in Orange County, Florida. This sign is a stacked, back to back structure, having two faces which face north and south. The face which is the subject of this proceeding is the south face which faces northbound traffic on State Road 434. This face is visible to traffic on the main-traveled way of State Road 50. When the Petitioner purchased the subject sign from Lamar, it checked the records of Lamar, and the records of the Department of Transportation and the orange County Building and Zoning Department, to ascertain that the sign had all required building permits, electrical permits, county permits and state permits, and that the sign site was a legal location. The sign had all the permits that were required. The relevant document from the Department of Transportation pertaining to the subject sign was a letter dated March 13, 1978, from the Department's district office to Lamar. This letter returned the permit applications that had been submitted by Lamar in February of 1978 seeking permits for the subject sign, for the reason that "your applications do not require a state permit". The parties stipulated that, prior to May of 1984, the personnel of the Department's Fifth District gave advice that signs along non-controlled roads within 660 feet of a federal-aid primary highway did not need a state sign permit. The Petitioner relied on the determination of the Department that the subject sign site did not require a state permit, and purchased the sign from Lamar. In May of 1984 the Fifth District personnel of the Department corrected their erroneous prior interpretation of the statutes and rules they administer, and permits were thereafter required for all signs within 660 feet of a federal-aid primary highway if they were visible from the main-traveled way of the controlled road. On July 1, 1985, the Department's outdoor advertising inspector advised the Petitioner that the south faces of the subject sign required a state permit. These are the faces in question in this proceeding. In compliance with this advice from the Department, the Petitioner filed permit applications for both the north faces and the south faces of the subject sign. The Department returned the applications for the north faces for the reason that a permit was not required. The north faces are not involved in this proceeding. The Department denied the Petitioner's applications for the south faces by memorandum dated October 8, 1985, for the reason that these faces conflicted with permits held by Maxmedia, Inc., in that they were not located more than 1,000 feet from the Maxmedia sign. The Maxmedia permits authorized a sign which was erected at a point 740 feet from the subject sign of the Respondent. The permits held by Maxmedia were issued by the Department on May 8, 1984. Prior to July 1, 1984, the spacing rule for signs on a federal-aid primary highway required 500 feet between signs. On July 1, 1984, this spacing requirement was increased to require 1,000 feet on a federal-aid primary highway. State Road 50 is a federal-aid primary highway, and the area within 660 feet from State Road 50 is a controlled area. The Petitioner's sign 350 feet north of State Road 50 was more than 500 feet from any other structure prior to July 1, 1984. It is not more than 1,000 feet from the Maxmedia signs now, however.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Peterson Outdoor Advertising for a permit on the east side of State Road 434, approximately 350 feet north of State Road 50, facing south, in Orange County, Florida, be GRANTED. THIS RECOMMENDED ORDER entered on this 29th day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1986. COPIES FURNISHED: Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
The Issue 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.
The Issue Whether the Respondent violated Chapter 479, Florida Statutes, by failure to obtain a state permit and whether Respondent is in violation of federal and state laws, rules and regulations applicable to outdoor advertising signs concerning setback and spacing restrictions.
Findings Of Fact A notice of alleged violation of Chapter 479 and Section 335.13 and Section 339.301, Florida Statutes, and notice to show cause was furnished Petitioner by certified mail dated the 16th day of December, 1976, and stamped at the Lamont, Florida Post Office December 18, 1976. The following signs are the subject of this hearing: A sign with copy reading "Pecans 3-lbs. $1.50" with an additional sign attached underneath reading "53.9" located at 1 and 6/10 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Pecans Fresh Shell $1.99) located 1 and 9/10 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Pecans 3-lbs. $1.50" located 2 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Exit Now Pecans Fresh Shell $1.99" located 2.05 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Exit Now Pecans 3-lbs. $1.50" located 2.2 miles west of Madison County line on Highway Interstate 10. No permits were secured for any of the signs which were erected subsequent to December, 1976, and visible from Highway Interstate 10 on the north side thereof. Each sign is outside an urban area. The distance and space between signs numbers 2, 3, 4 and 5 each is less than one thousand feet. Sign number 1 has the number 53.9 underneath the message advertising pecans. This number relates to the price of gasoline sold at Respondent's store wherein he sells gasoline and pecans among other things. Sign number 1 is approximately 15 feet from the fence line at the north boundary of 1-10; sign number 2 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 3 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 4 is located approximately 15 feet from the right-of-way line, the fence, on the north side of 1-10; sign number 5 is approximately 2 feet from the fence line on the north side of 1-10. Sign number 5 is within the offramp section of the interchange of 1-10 and State Road 257. The subject signs stand fully visible approximately 15 feet from the fence which is the north boundary line of Interstate 10 a federal aid primary highway except sign number 5 which is less than 15 feet from Interstate 10. They are placed in an old grove in which there are less than 20 old pecan trees which do not produce the product advertised for sale. The subject signs advertise pecans that are sold at the business of Respondent which is a distance of at least 3/4 of a mile from the nearest sign.
Recommendation Take such action as the law permits including but not limited to the removal of subject signs. DONE and ORDERED this 30th day of March, 1977, at Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Ben H. Ervin, Esquire George L. Waas, Esquire 850 South Waukeenah Street Department of Transportation Monticello, Florida 32344 Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. J. E. Jordan District Sign Coordinator, DOT Post Office Box 607 Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-001T LYMAN WALKER, III, Respondent. /
The Issue Whether the Respondent erected and maintained outdoor advertising signs without a proper permit and in violation of the set-back laws of Chapter 479, Florida Statutes.
Findings Of Fact Respondent erected an outdoor advertising sign approximately one (1) mile east of State Road 79 on the north side of Interstate 10 right-of-way. The copy on the face of the sign read: "Rich's Truck Stop, Restaurant, Travel Park, CB Radio Shop, Texaco, This Exit." The distance from the sign to the nearest edge of the pavement of I-10 was approximately two hundred thirty-one (231) feet. The Respondent, Mr. Rich, speaking for the partnership Rich Oil Company admitted that the sign was located as stated in the violation notice. The sign was located in a rural area not zoned by a city or by a county. Respondent erected a second sign located approximately .5 of a mile west of Florida Secondary 181 on the north side of I-10 right-of-way. The sign is painted on the side of a trailer. The size of the sign is nine (9) feet high and forty (40) feet long. The copy states: "Rich's Truck Stop, Exit Highway 79, Marker 111, Open 24 Hours, Restaurant, Camping, Texaco." The trailer with the sign on it is located approximately one hundred three (103) feet from the nearest edge of the pavement of I-10. The trailer with the sign painted on it is standing in a pasture in a rural unzoned area. The Respondent Mr. Rich agreed as to the approximate location of the subject sign. No application for permit was made by the Respondent for either of the two subject signs. Respondent received a Violation Notice from Petitioner stating the signs were in violation of the set-back regulations and were in violation of the statute requiring a state permit. Contrary to the contentions of Respondent, the Hearing Officer finds that both of the signs which are the subject of this hearing and herein described are in fact "signs." The second described sign painted on the side of a trailer is a "sign" within the standard definition "a lettered board or other display used to identify or advertise a place of business," Webster's New Collegiate Dictionary, Copyright 1974 by G. and C. Merriam Company.
Recommendation Remove both of the subject signs within ten (10) days of the issuance of the Final Order unless said signs have been previously removed by the Respondent. DONE and ORDERED this 1st day of February, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Tallahassee, Florida 32304 Russell A. Cole, Jr., Esquire 123 North Oklahoma Street Bonifay, Florida 32425 Mr. Glen E. Rich Rich Oil Company U.S. 90 West Bonifay, Florida 32425 Mr. J. E. Jordan District Sign Coordinator Post Office Box 607 Chipley, Florida 32428
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 3115 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
