The Issue As to DOAH Case Nos. 14-4926 and 14-4927, the issues are whether the billboards identified in the notices of violation are located on the premises of Respondent's business and, thus, exempt from licensure; and, if not, whether the billboards are eligible for licensure pursuant to section 479.07, Florida Statutes, or, alternatively, the "grandfather" provision set forth in section 479.105, Florida Statutes. With respect to DOAH Case No. 14-4928, the issue is whether Respondent engaged in, or benefitted from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact I. DOAH Case Nos. 14-4926 & 14-4927 The Parties The Respondent in these proceedings is I-10 Pecan House, Inc. ("Pecan House"), an entity currently owned and managed by Olan Q. Nobles. As discussed in greater detail below, Pecan House is a small country store that has conducted business in Jefferson County, Florida, for nearly 40 years. The Department is the state agency responsible, inter alia, for the regulation of outdoor advertising signs located within 600 feet of, and visible from, interstate highways. The Events In or around 1976, Erma Jean Walker (Mr. Nobles' sister) and her husband, Lyman Walker, III, purchased three tracts of land that are relevant to this proceeding. The first such parcel, upon which the Walkers quickly constructed an open- air market, comprises one acre and is located on State Road 257, immediately north of the intersection of that roadway and I-10. The second relevant parcel, .18 acres in size and located a short distance to the southeast of the first tract, is situated adjacent to the westbound lanes of I-10. Upon their acquisition of this parcel, the Walkers constructed a billboard that advertised the open-air market and the related business activities conducted on the third parcel. The third parcel, which is roughly 2.3 acres in size and likewise adjoins the westbound lanes of I-10, is located less than 1000 feet to the east of the second tract. It is upon this tract that, in mid-to-late 1976, the Walkers built a concrete structure to be used for the purpose of manufacturing candy and jelly——products the Walkers offered for sale at the nearby open-air market. By the end of 1976, the Walkers also constructed (upon the third parcel) a billboard advertising the open-air market and jelly/candy manufacture. Although the billboards referenced above were visible from I-10 and located within 600 feet of the roadway——and, thus, within the Department's "controlled area"——the Walkers did not apply for outdoor advertising permits. This is because, as the Department concedes, the billboards were exempt from licensure from 1976 until the mid-1990s (or perhaps later, as Mr. Nobles asserts) under the "on premises" exemption set forth in section 479.16, Florida Statutes. Under the definition of "premises" in effect during that period, the land upon which a sign was located did not need to be contiguous to the advertised business in order for the exemption to apply. For reasons that will soon be apparent, it is necessary to inject a third billboard into this discussion: in 1993, the Walkers constructed on the third tract of land a "double-stack" billboard, which is situated less than 200 feet and 1000 feet, respectively, from the signs erected in 1976 upon the third and second tracts. Although the double-stack billboard would have ostensibly satisfied the on-premises exemption, the Walkers nevertheless applied for——and were granted——an outdoor advertising permit. For all that appears, the Department has never initiated any proceedings to revoke the permit, which remains valid to this day. In 1995, Mrs. Walker transferred control of Pecan House to Mr. Nobles, who until that time had assisted the Walkers on an as-needed basis. Soon thereafter, Mr. Nobles upgraded the open-air market (on the first parcel) to a secure building and, of particular relevance here, ceased all manufacturing activities at the concrete building (on the third parcel). At or around that time, the Legislature amended the definition of "premises" to include a contiguity requirement.3/ This is significant, for the second and third parcels——the locations of the two billboards at issue herein——are not contiguous to the first parcel but, rather, are separated by a tract in which neither the Walkers nor Mr. Nobles holds a leasehold or ownership interest. Further, there is no recorded easement connecting Mr. Nobles' three parcels. Thus, although the two billboards constructed in 1976 lost their on-premises status in the mid-1990s, this fact apparently went unnoticed by the Department for roughly 13 years. Then, in March of 2008, the Department issued notices of violation in connection with both billboards. Among other things, the notices alleged that "outdoor advertising permit[s] [were] required, but ha[d] not been issued" for the billboards, which Mr. Nobles was instructed to remove within 30 days. A short time thereafter, an inspector or other agent of the Department conducted, in Mr. Nobles' presence, an examination of the 1976 billboards and Pecan House's business operations. At the conclusion of her inspection, the Department employee erroneously opined that, in fact, there was "no problem"4/ with the billboards in question, which Mr. Nobles reasonably took to mean that the signs continued to satisfy the on-premises exemption and, thus, were exempt from licensure. The reasonableness of this understanding was bolstered by the fact that, subsequent to the inspection, Mr. Nobles heard nothing more from the Department concerning the March 2008 notices of violation.5/ More than four years later, on December 17, 2012, the Department issued new notices of violation in connection with the 1976 billboards: notice 1352, relating to the billboard constructed upon the third parcel, which presently reads "Exit Now" and bears a Shell gasoline logo (hereinafter "Exit Now"); and notice 1487, relating to the billboard erected upon the second parcel, which presently reads "Welcome to Big O's / We Appreciate Your Business" (hereinafter "Big O's"). The parties thereafter engaged in settlement negotiations, in the course of which Mr. Nobles' counsel struggled mightily to convince the Department that the billboards continued to satisfy the on-premises exemption. When the Department rejected this argument, Mr. Nobles applied for an outdoor advertising permit for each billboard. The applications were ultimately denied, prompting the Department to refer the matters to DOAH for further proceedings. Based upon the evidence adduced at final hearing, it is evident that the billboards in question no longer meet the on-premises exemption and, thus, are subject to removal unless the signs meet either the current statutory requirements for a permit or, alternatively, the "grandfather" provision set forth in section 479.105, which authorizes licensure if the billboards satisfy earlier statutory criteria and certain other conditions. Eligibility for Licensure – "Exit Now" Beginning first with the "Exit Now" billboard, the record makes pellucid that the current statutory requirements for licensure cannot be satisfied. Among other things, the sign is located a mere 190 feet from the permitted, double-stack billboard erected in 1993, a distance far less than the minimum spacing requirement of 1500 feet. See § 479.07(9)(a)1., Fla. Stat. As for the potential applicability of the grandfather provision to the "Exit Now" billboard, it is critical to observe that the Department's delay of nearly five years (March of 2008 through December of 2012) in pursuing removal has placed Mr. Nobles at a significant disadvantage. In particular, had the Department moved forward in 2008——instead of inexplicably abandoning the action, which, along with the statements of its inspector, led Mr. Nobles to believe, incorrectly, that no permit was required——Mr. Nobles likely would have applied for a permit,6/ which the Department would have evaluated pursuant to the version of the grandfather provision in effect at that time. This is significant, for the 2008 codification of the grandfather provision, which remained unchanged until July 1, 2014, did not preclude licensure in situations where a billboard had previously enjoyed on-premises status or some other recognized exemption from the permitting requirement. Further, the pre-July 1, 2014, grandfather provision was quite favorable in that it allowed a potential licensee to demonstrate that the billboard would have met the criteria for licensure in effect "[a]t any time during the period in which the sign has been erected." § 479.105(1)(e)2., Fla. Stat. (2013)(emphasis added). The current version of the grandfather provision is quite a different animal. For one thing, grandfather status can only be granted if the billboard at issue "has never been exempt" from permitting. § 479.105(1)(c)2., Fla. Stat. (2014) (emphasis added). For another thing, the current grandfather provision looks not at "any" time in which the sign has been erected but, rather, at the criteria in effect during the initial seven years in which the sign was subject to the Department's jurisdiction. § 479.105(1)(c)2.b., Fla. Stat. (2014). As Mr. Nobles readily acknowledges, his effort to obtain a permit for the "Exit Now" billboard is a nonstarter under the 2014 version of the grandfather provision, whose plain language prohibits the issuance of a permit where, as here, the sign was previously exempt from licensure. This does not end the matter, however, for the undersigned finds that the Department's unjustified delay in pursuing removal——along with its agent's erroneous statement that the billboard was legal, upon which Mr. Nobles relied——requires that the "Exit Now" application be evaluated under the version of the grandfather provision that was in effect from 2008 until July 1, 2014. Pursuant to the pre-2014 codification of section 479.105, "grandfathering" was authorized if the owner could demonstrate: 1) that the sign in question had been unpermitted, structurally unchanged, and continuously maintained at the same location for at least seven years; 2) that, at any time during the period in which the sign has been erected, the sign would have satisfied the criteria established in chapter 479 for issuance of a permit; 3) that the Department did not file a notice of violation or take other action to remove the sign during the initial seven-year period in which the sign was unpermitted, structurally unchanged, and continuously maintained at the same location; and 4) that the sign is not located on a state right-of-way and is not a safety hazard. § 479.105(1)(e), Fla. Stat. (2013). Upon such a showing, the Department was authorized to treat the sign as conforming or nonconforming and issue a permit. Turing to the merits, the first prong is easily satisfied, as the "Exit Now" sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for 39 years, far longer than the seven-year period the statute requires. The third prong is also met, for the record makes clear that the Department took no action to pursue removal during the initial seven-year period, i.e., 1976 through 1983, in which the sign was unpermitted, structurally unchanged, and continuously maintained. In addition, the Department stipulates that the sign neither poses a safety hazard nor is located upon a state right-of-way, thereby satisfying the fourth prong.7/ This leaves only the second prong, which asks if the sign would have met the criteria for licensure at any time after it was erected. The selection of any time period subsequent to 1993 would surely doom the application, as the sign would be unable to satisfy the minimum spacing requirement due to its close physical proximity to the double-stack billboard——which, as noted previously, was issued a permit in 1993 and remains licensed. Prior to 1993, however, there does not appear to be any spacing conflict that would preclude licensure in this instance.8/ With the spacing concern resolved (and the relevant period of inquiry narrowed to "any" time between 1976 and 1993), the undersigned turns to the only other criterion for licensure that appears to be in dispute: section 479.111(2), Florida Statutes, which authorizes the issuance of a permit only if the sign is located in "commercial-zoned and industrial-zoned areas or commercial-unzoned or industrial-unzoned areas." Unfortunately, this issue cannot be resolved on the instant record, for there is a dearth of persuasive evidence concerning the zoning designation of the third parcel (the location of the "Exit Now" sign) during the critical period of inquiry. Indeed, the record contains only the Department's speculative assumption that, because the area is presently unzoned, it therefore must have been unzoned at all times in the past.9/ Further, even accepting the Department's assumption at face value, it is impossible to determine whether the business activities conducted on the parcel from 1976 until the mid- 1990s——namely, the manufacture of candy and jelly and the sale of pecans——would satisfy the use test at any time between 1976 and 1993.10/ Under ordinary circumstances, such an absence of evidence would necessitate an adverse result for the permit applicant. Owing, however, to the unusual history and posture of this case, as well as the undersigned's conclusion that the pre-2014 grandfather provision should govern, it is recommended that the Department reevaluate Mr. Nobles' application to determine if the third parcel could have satisfied the requirements of 479.111(2) at any point between 1976 and 1993. Eligibility for Licensure – "Big O's" The undersigned turns next to the "Big O's" sign, which, like the "Exit Now" billboard, is unable to satisfy current licensing criteria due, among other reasons, to its close proximity to the double-stack billboard.11/ Further, as with the "Exit Now" billboard, the fact that the "Big O's" sign was previously exempt from licensure (owing to its on-premises status from 1976 through the mid-1990s) renders it ineligible for licensure under the 2014 codification of the grandfather provision. However, in sharp contrast to the "Exit Now" billboard, the "Big O's" sign is positioned within 500 feet of an interstate exit ramp, thereby constituting a safety hazard. This distinction is fatal to Mr. Nobles, as every codification of the grandfather provision from the mid-90s (when the sign lost its on-premises status) onward has prohibited the licensure of billboards that present a safety issue. The short of it, then, is that the sign was no more eligible for licensure in the past than it is today, which obviates the need for any further analysis under the pre-2014 version of the grandfather provision. For the reasons articulated above, Mr. Nobles has failed to prove that the "Big O's" sign is exempt from licensure by virtue of the "on-premises" exception. Further, the evidence conclusively demonstrates that, due to safety concerns, the sign would not have been eligible for licensure at any point in time. Accordingly, the undersigned is constrained to recommend the sign's removal pursuant to section 479.105. II. DOAH Case No. 14-4928 As noted earlier in this Order, DOAH Case No. 14-4928 involves an allegation that Mr. Nobles engaged in——or benefitted from——the unpermitted removal, cutting, or trimming of vegetation. The relevant facts are recounted below. On January 21, 2013, Mr. Nobles executed a lease agreement with Michael McDougal, who owns a parcel of land adjacent to the eastbound lanes of I-10, approximately .6 miles from County Road 257. In relevant part, the terms of the lease authorized Mr. Nobles to place on the property a pickup truck, attached to which was a billboard that advertised the I-10 Pecan House. Shortly thereafter, in late January 2013, Mr. Nobles relocated the truck to a position on Mr. McDougal's property a short distance to the south of the fence line that separates the parcel from the Department's right-of-way. But trouble soon followed: in late February or early March, the Department received several reports of unusual vegetation removal in the general area of Mr. Nobles' truck sign. In response, the Department requested one of its contractors, Metric Engineering, Inc. ("Metric"), to conduct a field inspection of the area. The inspection was performed on or about March 12, 2013, by Bill Armstrong, a certified arborist employed by Metric. During the course of his inspection, Mr. Armstrong observed, first, an area that the Department had previously cleared to facilitate the installation of a new fence, which had yet to be installed. This particular area, which ran along the length of the fence line and had been cleared within the preceding six months, had a width (as measured from the fence toward the roadway) of approximately 12 feet. Immediately beyond this 12-foot zone, however, Mr. Armstrong noticed evidence of other activity that had occurred much more recently. Specifically, Mr. Armstrong observed, on the side of the fence immediately opposite Mr. Nobles' truck, an area 120 feet in length (parallel to the fence line) and approximately 25 feet in width that had been cleared of vegetation. Within this 120 by 25 foot area, Mr. Armstrong discovered 30 tree stumps, which, upon close examination, exhibited signs of having been recently cut. Such indications included the presence of sawdust; the fact that the stumps were bright in color and relatively clean; and the observation of fresh debris at both ends of the swath. These findings were recorded in a report dated March 25, 2013, which Metric promptly forwarded to Morris Pigott, the Department's Project Manager of Vegetation and Resource Management. Several weeks later, Mr. Pigott conducted his own site visit, during which he examined the particular area that had concerned Mr. Armstrong. Consistent with the findings contained in Metric's report, Mr. Pigott observed, within the 120 by 25 foot area, numerous, freshly-cut tree stumps. Mr. Pigott further concluded, quite reasonably, that this activity had not been performed by the Department or one of its contractors, for the stumps had not been cut to ground level, the vegetation immediately to the east and west of the area was "very dense," and the area had not been "grubbed."12/ (As explained during the final hearing, "grubbing" involves the removal of the top six inches of surface material, an action designed to prevent regrowth.) To cinch matters, Mr. Pigott observed that the selective clearing of the 120 by 25 foot area had enhanced the visibility of Mr. Nobles' truck-mounted billboard for eastbound traffic. Thereafter, on April 14, 2013, Mr. Pigott cited Mr. Nobles for violating section 479.106(7), which provides that any person who engages in or benefits from the unauthorized removal of vegetation shall be subject to an administrative penalty. Mr. Pigott further notified Mr. Nobles that, pursuant to Florida Administrative Code Rule 14-10.057, the Department intended to assess mitigation in the amount of $8,304.25. Mr. Nobles promptly denied any and all involvement in the removal, claiming that a road crew had cleared the vegetation two years earlier. In response, Mr. Pigott contacted Mr. Armstrong, disclosed Mr. Nobles' explanation, and asked that a follow-up inspection be performed. Mr. Armstrong conducted his second inspection on August 8, 2013. At that time, Mr. Armstrong observed that Mr. Nobles' truck-mounted billboard was still present, and that the stumps within the 120 by 25 foot area had sprouted and grown to a height of two to three feet. Samples of the sprouts were collected, which Mr. Armstrong later examined for evidence of internodes——i.e., rings that denote growth, with one ring forming during each growing season. Due to the absence of internodes, Mr. Armstrong concluded that the stumps were in their first growing season, thereby eliminating any possibility that the vegetation had been cleared several years earlier.13/ Finding that the evidence proves clearly and convincingly that Mr. Nobles benefitted from the unauthorized vegetation removal, the undersigned turns finally to the question of mitigation. As noted above, the Department seeks mitigation in the amount of $8,304.25, a figure derived from Mr. Armstrong's use of the formula referenced in rule 14-10.057. It is at this juncture that the Department's case falters. Although Mr. Armstrong offered credible testimony concerning the number and species of trees (water oaks, Florida maples, and the like) that were removed from the area, the record evidence regarding their market value consists entirely of hearsay. Indeed, the Department called no witness who possessed any firsthand knowledge as to the market value of the trees; instead, it presented only the testimony of Mr. Armstrong, who explained that he had telephoned three nurseries, obtained price quotes over the phone, averaged the three figures, and plugged the averages into the formula. To be clear, the undersigned has no quarrel with either the formula or Mr. Armstrong's initial reliance upon the price quotes. The problem is that, in the absence of a stipulation from Mr. Nobles concerning the amount of mitigation, the Department was obligated to adduce at least some non-hearsay evidence of the market values——the starting point of the calculations. Inasmuch as the record is devoid of such evidence, the Department's request for mitigation must be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: DOAH Case No. 14-4926 RECOMMENDED that the Department of Transportation enter a final order finding that the billboard identified in Notice of Violation 1487 ("Big O's") is illegal and subject to removal pursuant to section 479.105, Florida Statutes. It is further recommended that the Department enter a final order denying the related application for an outdoor advertising permit. DOAH Case No. 14-4927 RECOMMENDED that the Department of Transportation take no further action on Notice of Violation 1352 until such time that it reevaluates (under the pre-July 1, 2014, codification of section 479.105) the related application for an outdoor advertising permit. If the application is granted, the Department should enter a final order dismissing Notice of Violation 1352. In the event, however, the application is once again denied, the Department should afford Respondent a point of entry into the administrative process. DOAH Case No. 14-4928 RECOMMENDED that the Department of Transportation enter a final order finding Respondent guilty of violating section 479.106, Florida Statutes, and imposing an administrative fine of $1,000.00 DONE AND ENTERED this 4th day of May, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2015.
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice. The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441. U.S. 17/92/441 is a federal-aid primary highway. Kaley Avenue is a non-controlled road. 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. In March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding. By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required. Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue. There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue. The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1981, but which had not been issued. It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 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 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. 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 =================================================================
Findings Of Fact Respondent, San Ann Food Stores, is the owner of an outdoor advertising sign located 5.89 miles east of the Hillsborough County Line, on the east side of Interstate 4 in Polk County. More specifically, the sign is east of the U.S. 98 and I-4 intersection which lies just north of the City of Lakeland. The sign is two-sided, with one side facing eastward, and the other facing westward. It sits on top of two poles which are approximately sixty feet high. The parties have stipulated that the sign is visible from I-4, although just barely, and lies within five hundred feet of that highway. They have also stipulated that no permit has ever been issued by petitioner, Department of Transportation (DOT), authorizing its use. The sign does not lie within the corporate limits of a city; however, this is immaterial to the resolution of these cases. On an undisclosed date, a DOT inspector observed the sign while conducting an inspection of another sign and found no display of a current valid permit tag. After checking his records, he found that no permit had ever been issued authorizing its erection and use. It was also determined, without contradiction, that the sign is within five hundred feet of the interchange of I-4 and U.S. 98. Such an intersection is classified as a restricted interchange. According to Rule 14 10.06(2)(b)2. and state law, no signs are permitted within five hundred feet of such an interchange. The sign in question was erected by Sun Oil Company around 1967 or 1968 when no permit was required. Respondent purchased the property on which the sign is located in April, 1978. It assumed that Sun Oil had obtained all necessary permits from the state to maintain and use the sign. It did not learn that Sun had failed to obtain a sign permit until the Notice of Violation was issued by DOT in February, 1985. It is willing to repay all fees owed during prior years if DOT will allow the sign to remain.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's sign (facing east and west) be found in violation of the statutes and rules cited in the conclusion of law portion of this order, and that it be removed. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
The Issue Whether the sign of Petitioner, White Advertising International, should be removed by the Respondent, Department of Transportation, for violation of Section 479.07(1) and Section 479.11(2), Florida Statutes, and the rules and regulations promulgated thereunder.
Findings Of Fact A notice of violation was sent by the Respondent, Department of Transportation, to the Petitioner, White Advertising International, on March 21, 1977, citing an outdoor advertising sign owned by the Petitioner located 1.97 miles west of U.S. #1, State Road 50 E/B with copy "Real Estate Service." The violation noted that the sign violated Section 479.071(1), Florida Statutes, and Rule 14ER77-09 (now Rule 14-10.04) and Section 479.11(2), Florida Statutes, and Rule 14ER77-10, 11 (now Rule 14-10.05 and 14-10.06). There is no dispute as to the location or copy or ownership of the subject sign. It is not in a zoned business, commercial or industrial area and is outside an urban area. The sign does not conform to the current setback requirements. The sign has a permit tag dated 1971, the only permit tag on the sign. No application was alleged to have been made for permit or annual fee paid or offered subsequent to 1971 until the application noted in 4, infra. A sign permit application and annual renewal was processed by White Advertising International dated January 21, 1977. The application was an annual renewal for the year of "19 72-1976." The printed application form stated that, "The signs listed above meet all requirements of Chapter 479, Florida Statutes. Respondent, by its outdoor advertising section administrator, refused to grant the permit on the grounds that the sign which had been erected prior to the enactment of the current setback regulations and probably in the year 1967 had had no application for permit or annual fee paid since 1971 and therefore having become an illegal sign, no permit could be issued. The Petitioner sign company introduced into evidence a letter dated February 28, 1977, from Respondent, Department of Transportation, through its property management administrator which indicated that the State had previously contended the subject sign was built on an unplatted street and had to be removed without compensation but that it was discovered such was not the case and that the State then offered to reimburse Petitioner for relocation costs. Petitioner did not remove the sign and the letter states that the current position of the Respondent State is: That the sign is on the right of way, contrary to Section 339.301, Florida Statutes; Has no current permit; contrary to Section 479.07(1), F.S. Violates Section 479.13, Florida Statutes, as having been constructed, erected, operated, used and maintained without the written permission of the owner or other person in lawful possession or control of the property on which the sign is located; and The sign therefore is an illegal sign and must be removed by Petitioner without compensation. Respondent contends: that the sign is illegal, having failed to be permitted since the year 1971; that it has one pole of the sign pole on the right of way contrary to Section 339.301; that it has no lease contract as required by Section 479.13; that Respondent has no authority to renew delinquent permits; that once a sign becomes illegal a new permit cannot reinstate its nonconforming status. Petitioner, White Advertising International, contends: that it should be granted a permit inasmuch as permits for some signs had been granted by the Respondent although the annual permit fee was not timely made.
Recommendation Remove subject sign if the same has not been removed within thirty (30) days from the date of the Final Order. DONE and ORDERED this 6th day of July, 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: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire White Advertising International Post Office Box 626 Titusville, Florida
The Issue Whether the signs of Respondent should be removed for violating the spacing requirements of Florida Statutes and State Laws, Rules and Regulations.
Findings Of Fact An application for a permit was filed by the Respondent, Lamar-Citrus Outdoor Advertising, for a location and construction of a billboard sign. The application designated U.S. 41 not within the city limits in the county of Lee. The nearest highway intersection was designated as Bonita Beach Enterance, Highway 865 and 1200 feet North from the intersection. The permit was approved May 13, 1976, and the approval designated the sign location as "Sec 309N 01.32 15R f/s." The direction that the sign would face was checked. The lighted block was not checked. Thereafter a 12 x 25 double-face lighted sign was erected by the Respondent on the West side of United States Highway 41, a four-lane highway. On May 2, 1977, the Petitioner, Department of Transportation, issued an "alleged violation of Chapter 479, Florida Statutes, and Notice to Show Cause." The violation notice stated "Signs were approved in this section, but they were for 309 North, not South." Petitioner requested an administrative hearing. Petitioner contends: he properly constructed his signs pursuant to his application and the permit issued by the Respondent. He contends that the spacing problem is caused by another outdoor advertising sign and not his own. Petitioner further contends that the application forms have been changed to clarify the location of signs since his application was filed and his permit was granted. Respondent contends: that Petitioner failed to locate his sign in the location for which he applied and for which the permit was issued; that because of the failure to properly locate his sign, his sign is in an unpermitted location and is an unpermitted sign; that Petitioner's sign is in violation of the spacing requirements of Section 479.02(2) inasmuch as a properly permitted sign is within 200 feet of Petitioner's sign; that the Petitioner has been applying for and has been granted permits for outdoor advertising along the highways of the State of Florida for at least nine and a half years and that the same method of describing the location for the construction of billboards has been used by the Respondent and has been used by the Petitioner and that it is a logical and practical way to describe a permitted location for a sign along a highway; that it is true that new forms are being used to further clarify the position of signs but that the application form used by the Petitioner when applying for the sign and obtaining a permit for the subject sign is clear on its face and the method of location has been well known to the Petitioner for many years. Upon observing the demeanor of the Petitioner and Respondent and listening to the testimony of the witnesses and argument of counsel, the Hearing Officer further finds 1) the Petitioner knew or should have known that the area in which he was permitted to erect a sign was East of the highway inasmuch as the location and construction form expressly stated that the nearest highway intersection was Number 865 and that the direction from the intersection was North. The permit states Sec. 309 North and indicated the sign faces South. A driver of a vehicle going North from the intersection must be in the right hand two lanes of U.S. 41 and that to proceed 1200 feet a sign would be on the right hand or the East side of the four lane highway. The "modus operandi" for location of signs is statewide and well known to the Petitioner as well as the Respondent. To ascertain a location on the West side opposite the area in which the Respondent approved for Petitioner's sign would have required a vehicle to travel North in the South bound lanes of U.S. 41 in order to drive the distance from the stated intersection to the location. Throughout the state the sections are usually designated on the permits so that they show the direction in which to drive, North, South, East or West. The signs are located on the right side of the highways as the vehicle travels.
Recommendation Require the Petitioner to remove the subject sign or remove it at the expiration of appeal time. DONE and ENTERED this 12th day of January, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 E. Snow Martin, Esquire Post Office Box 117 Lakeland, Florida 33802
Findings Of Fact Respondent's sign located on U.S. 92, 4.7 miles east of U.S. 19 has no current tag and is located 414 feet west of a validly permitted sign. U.S. 92 is a federal-aid primary highway. Notice of Hearing was mailed to Walter Collany, owner, Snug Harbor, on February 23, 1979 at the address on the letterhead on which an administrative hearing was requested by Mr. Collany.
The Issue Whether a sign owned by Respondent and located on the southbound side of I- 95 north of Pembroke Road in Broward County, Florida, violates Chapter 479, Florida Statutes, as alleged in the notice dated August 8, 1991; and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes. Chapter 479 regulates outdoor advertising structures along the state highway system. Respondent is the owner of a sign located adjacent to the southbound side of Interstate 95 ("I-95") near Pembroke Road in Broward County, Florida. Respondent maintains the sign on the side of the trailer portion of a so-called 18 wheel tractor-trailer (an "18 wheeler") in a stationary position. No truck or tractor is affixed to the trailer. The sign and 18 wheeler were situated on property owned by Air Stern. Air Stern is an air conditioning company. Petitioner's Outdoor Advertising Inspector (the "inspector") first observed the sign in August, 1991. The sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary location. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. The advertising message was clearly visible from I- 95. A light facing the sign was affixed to the ground and positioned to illuminate the sign on the side of the 18 wheeler at night. An expired 1990 Florida license plate was affixed to the back of the trailer. Grass had grown up around the tires of the trailer and the trailer had been in its same position for several months. The inspector issued a Notice of Violation by physically attaching it to the trailer on August 8, 1991. The inspector determined that the printed advertisement on the trailer's side was an unpermitted sign that violated Section 479.07(1), Florida Statutes. The inspector based his determination upon his observation of the trailer on the premises, its position in relation to I- 95, and the type and content of the message printed on the side. Another copy of the Notice of Violation was mailed to Respondent. After more than 30 days had elapsed with no action by Respondent, Petitioner had the first sign removed by Sal's Towing on September 23, 1991. The sign was stored at Petitioner's maintenance facility in Ft. Lauderdale, Florida. On November 9, 1991, Respondent paid the towing charge for removal of the sign and then returned the sign to its original location adjacent to I-95 near Pembroke Road in Broward County, Florida. In addition to placing the sign in its original location, Respondent placed a second sign next to the first sign. The second sign was substantially similar to the first sign. The second sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary position with no truck or tractor attached. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. A sign permit has not been applied for by Respondent nor issued by the Department for either of the signs located adjacent to I-95.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent shall have ten days from the date of the Final Order to comply with Notice of Violation No. 4-369 by removing the sign or be subject to the cost of removal and imposition of an administrative fine. DONE and ENTERED this 6th day of April 1992, in Tallahassee, Florida. DANIEL MANRY 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 6th day of April 1992.
Findings Of Fact The facts here involved are not in dispute. In 1966 Petitioner leased the property adjacent to Cypress Street in Tampa and erected a structure thereon on the 1-275 3.6 miles west of 1-4, containing signs facing both east and west. By application dated 20 October 1977 (Exhibits 1 and 2) Petitioner applied for permits for these signs. The applications were disapproved because of spacing. Likewise, on 20 October 1977, Petitioner submitted application for a permit for a sign on the 1-4 2.9 miles east of U.S. 41 with a copy of the lease dated 1967. This sign is located in Tampa and the application was also disapproved because of spacing. Both of these locations are zoned commercial and are within the corporate limits of Tampa, Florida. The structure on which the signs shown on Exhibits 1 and 2 were erected was built in 1968 and the sign involved in Exhibit 3 was built in 1967. The signs for which a permit was requested in Exhibits 1 and 2 is located 325 feet north of a permitted structure owned by Tampa Outdoor Advertising, Inc. on the same side of the street and facing in the same direction. The sign for which a permit was requested in Exhibit 3 is 275 feet west of a permitted sign facing the same direction and on the same side of the street which is owned by Foster and Kleiser. No appeal was taken from these disapprovals, but by applications dated June 19, 1979, Petitioner in Exhibits 4, 5 and 6 reapplied for permits for the same signs that had been disapproved in 1977. These applications were also disapproved because of spacing. The I-4 and the I-275 are part of the Interstate Highway system.
