The Issue This case arose upon the filing of a complaint against Dick Signs by J. H. Hobson, Outdoor Advertising Agent, Department of Transportation Right of Way Bureau. The case was thereafter referred to the Division of Administrative Hearings by the Department of Transportation for hearing to determine whether Dick Signs was in violation of Section 497.07, Florida Statutes, by erecting, using or maintaining advertising structures without acquiring and affixing to said structures the permits required by law. Counsel for the Department of Transportation moved for additional time to submit evidence of notice of the hearing and was granted leave to file with the Hearing Officer said notice not later than October 28, 1975. Having examined the notice, the Hearing Officer finds that notice was given in the manner and within the time prescribed by Chapters 120 and 79, Florida Statutes. James H. Hobson was called and his sworn testimony was received regarding the six signs charged to be in violation of Chapter 479, Florida Statutes, in the Administrative Complaint. Based upon his testimony the Hearing Officer makes the following findings:
Findings Of Fact The first sign referenced in the charges was located on S.R. 775 and ALT 45, 2.75 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 24' x 10', bore a 1972 permit with number 2485-6-72 issued to Dick Signs, bore a plague indicating it was owned by Dick Signs, and had an advertisement for First Federal on the date of inspection. The annual licensing fee is $6, and has not been paid for the years 1973, 1974 and 1975. The second sign referenced in the charges was located on S.R. 775 and ALT 45, 2.31 miles south of its junction with U.S. 41. This sign was inspected by the witness Hobson on June 18, 1975. This sign was 10'x 40' and was double faced, presenting advertising copy on two directions which could be seen from the highway. It bore a 1969 permit, number 4282-10-69 issued to Dick Signs and bore a plague indicating it was opened by Dick Signs on the date of inspection. The annual fee for said double faced sign is $20, and this fee has not been paid for 1970, 1971, 1972, 1973, 1974, and 1975. The third sign referenced in the charges was located on S.R. 775 and ALT 45, 2.59 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 10' x 40', bore a 1972 permit number 4195-10-72 issued to Dick Signs and bore a plague indicating it was owned by Dick Signs on the date it was inspected. The annual fee for this sign is $10, and this fee had not been paid for the years 1973, 1974, and 1975. The fourth sign referenced in the charges was located on S.R. 775 and ALT 45, 1.10 miles south of its junction with U.S. 41. It was inspected by the witness Hobson on June 18, 1975. This sign was 10' x 24' and bore a plague indicating it was owned by Dick Signs. It did not have any permit. The annual fee for said sign is $6. The fifth sign referenced in the charges is located on S.R. 775 and ALT 45, 1.10 miles south of its junction with U.S. 41. It was personally inspected by the witness Hobson on June 18, 1975. This sign bore a 1972 permit number 2076-4-72 issued to Dick Signs and a plague indicating it was owned by Dick Signs on the date of inspection. The size of this sign requires an annual fee of $6 and had not been paid in 1973, 1974, and 1975. The sixth sign referenced in the charges was located on S.R. 775 and ALT 45, 1.68 miles south of its junction with U.S. 41. It was personally inspected by the witness Hobson on June 18, 1975. On the date of inspection it bore a 1972 permit issued to Dick Signs and a plague indicating it was owned by Dick Signs. The annual fee for this sign is $10 and it had not been paid in 1973, 1974, and 1975. The witness testified that Dick Signs was a licensed outdoor advertiser holding License No. 18233, valid for 1975. The witness further testified that in the course of his duties be would receive any applications for renewal of the permits of the signs identified above, and these applications had not been received prior to the hearing.
Findings Of Fact The outdoor advertising sign which is the subject of this proceeding has been erected on a small parcel of land located approximately one-quarter of a mile west of First Street on Rockland Key, next to the southbound lane of U.S. 1, in Monroe County, Florida. This location is outside the city limits of any municipality. On approximately October 1, 1983, Mr. Frank Toppino, who is not a party to this proceeding and who was not presented as a witness at the hearing, leased the subject property to the Pier House Inn and Beach Club for one year. Under the terms of this lease, the Pier House Inn received the right to use the property for an outdoor advertising structure which the parties to the lease contemplated would be constructed there. The Pier House agreed to pay the sum of $950 to Mr. Toppino as rent for the year. In addition, the Pier House agreed to undertake construction of the sign on the land for the benefit of Mr. Toppino, the lessor, after the lease expires. The PIER House received the right to use this land for one year, and the right to place advertising copy of its choice on the face of the outdoor advertising structure for one year. The lease between Mr. Toppino and the Pier House Inn covering the subject property was received in evidence. This lease, and the testimony of the general manager of the Pier House Inn who executed it as lessee, which is detailed above, supports a finding of fact that Mr. Frank Toppino and not the Pier House was the owner of the outdoor advertising structure which is the subject of this proceeding on October 1, 1983. Subsequently, when the Department's Outdoor Advertising Administrator made his inspection of the subject sign, there was no state outdoor advertising permit affixed thereto, and the Department has not issued any permit for this structure. The sign was erected between two other permitted signs, and it is closer than 500 feet to both of these existing and permitted structures. The sign which is the subject of this proceeding is located adjacent to a federal- aid primary highway outside any incorporated city or town. It is visible from U.S. 1, and it is within 660 feet of the edge of the pavement of this highway. The Department's Outdoor Advertising Administrator made a determination that the Pier House Inn was the owner of the sign in question based upon information contained in a Monroe County Building Permit application, and based upon the hearsay information received during telephone conversations. However, this information is controverted by the direct testimony of the general manager of the Pier House Inn which is itself corroborated by the lease between Mr. Toppino and the Pier House which is in evidence. Thus, the testimony received from the Department's witness is not of sufficient quality to support a finding of fact that the Pier House Inn is the owner of the sign in question. Moreover, the Department has the burden of proof on this issue, and the quantity and quality of the evidence presented on the matter of ownership of the subject sign does not carry this burden.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the violation notice issued on December 12, 1983, to the Pier House Inn and Beach Club, be dismissed, without prejudice to the reinstitution of proceedings in which the violation notice is directed to the actual owner of the sign in question. THIS RECOMMENDED ORDER entered this 23rd day of August, 1984, 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 August, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
Findings Of Fact This proceeding was initiated when the Department notified the Respondent, Headrick Outdoor Advertising, that its permits numbered AD089-10 and AD090-10 were being revoked because the Respondent no longer had permission of the property owner to maintain a sign there, as required by Section 479.07(7), Florida Statutes. Permits numbered AD089-10 and AD090-10 authorized an outdoor advertising sign on U.S. 98, 100 feet west of Hickory Avenue in Bay county, Florida. The record owner of the property where the above permits authorized the Respondent to locate a sign is E. Clay Lewis III, Trustee, who took title by deed in 1977. By letter dated August 9, 1985, the property owner notified the Respondent that the subject property was being sold, and that the Respondent had 30 days to remove the sign from the property and cancel the outdoor advertising permits for this sign. By letter dated October 17, 1985, the property owner advised the Department that the Respondent no longer had a valid lease for the site where the subject permits authorized a sign, and that the signs had been removed. Documents marked Exhibits 1-3 reflect the foregoing, as does the testimony of the Department's outdoor advertising inspector. This evidence was received without objection from the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AD089-10 and Ad090-10 held by the Respondent, Headrick Outdoor Advertising, be revoked. THIS RECOMMENDED ORDER entered this 31st day of July, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 William G. Warner, Esquire P. O. Box 335 Panama City, Florida 32402 Bobbie Palmer, Esquire P. O. Box 12950 Pensacola, Florida 32576 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. 8palla, Esquire General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue Whether the permit Harbor Woods seeks should be denied lest effluent from a sewage treatment plant enter the proposed basin? Whether the proposed project will cause odors and degradation of water quality in contravention of DER standards and rules, as a result of stormwater runoff?
Findings Of Fact On Merritt Island in Brevard County, Harbor Woods owns an 80-acre parcel on the western shore of Newfound Harbor. From the north, Sykes Creek flows into Newfound Harbor, which opens into the Banana River to the south. The parties stipulated that Newfound Harbor, which is navigable, contains Class III waters. Paralleling the northern boundary of the Harbor Woods property is a ditch through which 800,000 gallons or more of effluent from a sewage treatment plant operated by Brevard County pours into Newfound Harbor daily, at a point about 400 feet north of the proposed flushing channel. A mile or so south of the proposed flushing channel is the nearest boundary of the Banana River Aquatic Preserve. PETITIONER'S INTEREST Robert B. Sampson, Carl Seidel and Betty Holcombe have all been boating in Newfound Harbor and expect to use the waters of Newfound Harbor in the future. Ms. Holcombe is an avid angler and has fished those waters often. MAN vs. MOSQUITO At one time an arm of Newfound Harbor extended onto the property Harbor Woods now proposes to develop. As a means of mosquito control, the authorities caused a dike to be built along the eastern edge of the property, wailing off the shallows and interdicting the tidal flow. The impoundment was then filled with fresh water in an effort to keep the bottom covered. The idea was to deprive mosquitoes of mud they need for depositing eggs. The effort was not completely successful, and the area continues to be sprayed with insecticides. The mosquitoes that now breed in the vicinity of the impounded fresh water are capable of transmitting encephalitis and other diseases and constitute a more serious problem than the mosquitoes whose larvae formerly hatched on the salt mud flats. The area of the original impoundment was reduced some time after 1967 by filling in conjunction with development to the north of the Harbor Woods property. PARTIAL RESTORATION PROPOSED Barber Woods, which owns the bottom landward of the dike, proposes to drain the fresh water to an unspecified upland site, uproot some seven and a half acres of cattails, remove the muck, and fill with clean sand so as to reshape the perimeter of the impoundment and its bottom contours; and consolidate four small islands into a single "recreational" island within the newly formed basin, which would only then be connected to Newfound Barber by dredging a flushing channel through the dike. Unplugging the dike would entail removal of about a quarter acre of productive wetlands, mainly mangroves, which would be transplanted inside the basin. The project would improve the property aesthetically and result in more land area for the "mid-rise" condominium buildings Barber Woods intends to erect. Although the project would not restore the site to its precise pro-impoundment state, the proposed basin is designed, in part, to fill the ecological role the pristine embayment once played. The level bottom of the new basin would lie at 1.5 feet NGVD; once the dike was breached, saltwater would fill the basin to a uniform depth of one and one half feet, and spill over to submerge five acres of cordgrass (Spartina alterniflora) which would be planted along the northern and southern shores of the basin. The unplanted bottom of the basin would comprise another five acres. After removing 330 feet of the dike, and in order to insure the movement of water in and out of the basin, a channel 150 feet wide would be dug out into Newfound Harbor 92 feet waterward of the mean high water line. Turbidity curtains would be used during dredging. If the cordgrass and the mangroves, which are to be planted in the same area, take hold and flourish, white mangroves would dominate in five years' time, and the quarter acre strip along the dike which would be lost would then have been replaced by an area twenty times as large. Eventually red mangroves should become dominant. The uncontroverted evidence was that, because of all the new vegetation proposed, the project would ameliorate water quality in Newfound Harbor and provide a new food source, habitat and nursery area for various organisms, including mosquitophagous fish. AMBIENT POLLUTION The objectors raised the question whether any plantings in the new basin could be expected to survive in light of the poor water quality in Newfound Harbor. The waters of Newfound Barber do not meet minimum standards for Class III waters now, and would not be brought up to those standards by any project like the one proposed. Brevard County's Fortenberry Sewage Treatment Facility, the source of the effluent pouring into Newfound Harbor, has been the object of administrative proceedings in which DER has alleged that the facility is discharging excessive amounts not only of nutrients like phosphorous but also of copper, mercury, lindane, and malathion. Petitioners Exhibit No. 4. Excess nutrients in the water would foster, not retard, the growth of submerged plants, but some of the substances DER itself claims are being introduced into Newfound Harbor could be lethal to plants. DER has alleged in a notice of violation that effluent from the Fortenberry Sewage Treatment Facility "is acutely toxic." Petitioners' Exhibit No. 4. Reese Kessler, a DER employee, noted "a six inch layer of black ooze" along the Newfound Barber side of the dike in September of 1981, which, he reported, "Presumably resulted from a recent heavy discharge of sewage effluent." DER's Exhibit No. 2. If constructed as proposed, the basin would exchange waters with Newfound Barber, primarily under the influence of the wind. Southeast winds predominate at the site. When the wind blows from the southeast, a clockwise gyre in Newfound Barber takes the effluent due east from the mouth of the ditch and away from the proposed flushing channel, but a northeast wind would result in sewage effluent entering the basin, if it blew hard enough. Runoff entering the basin from upland would also be a motive force, as would the ebb and flow of the tide, to a lesser extent; the tidal range in the area is on the order of one-tenth of a foot. Ninety percent of the water in the basin would leave it and enter Newfound Barber in 30 days' time, even without any wind. The flushing channel is fairly wide and not much deeper than the surrounding bottom; natural circulation should be enough to keep it clear of siltation. Because water quality in Newfound Harbor is so bad, the water in the proposed basin would also fall below minimum standards for Class III waters. According to uncontroverted testimony, however, the new basin would not cause or aggravate water quality standard violations. The new vegetation would be protected from most boat traffic by being planted in shallow beds. The experts unanimously predicted it would thrive and ameliorate a bad situation. STORMWATER RUNOFF The dike not only keeps the waters of Newfound Harbor out; it also prevents any additional pollution of Newfound Harbor from upland source. Harbor Woods intends to construct parking lots, in conjunction with the multi-story condominium buildings it plans to build around the proposed basin. The precise location and dimensions of the buildings and parking lots have not been decided upon but it is clear that rainwater draining over the parking lots would make its way to the proposed basin and, eventually, to Newfound Harbor. Harbor Woods has proposed to encircle the new basin with grassy swales large enough to hold the first half inch of rain that would otherwise drain directly into the basin. Water overflowing the swales could reach the basin only by passing through a sand filter, which would remove all oil. Gasoline is not ordinarily split in most parking lots and quickly evaporates, in any case. But rain washing over parking lots picks up oils, greases and heavy metals. Bow badly water traversing a parking lot Is polluted depends principally on what the parking lot surface is. The optimal parking surface is concrete block, which allows for some percolation. The first inch of rainfall washes off 90 percent of the substances that pollute runoff The evidence was uncontroverted that the runoff would meet Class III standards before it entered the proposed basin. PROPOSED FINDINGS CONSIDERED Respondent DER filed proposed findings of fact, conclusions of law and recommended order. DER's proposed findings of fact have been considered and in large measure adopted, in substance. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, irrelevant, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant petitioner's application on the conditions proposed and on the additional condition that any parking lots over which draining water would eventually reach Newfound Harbor be paved with concrete block. DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of November, 1983. COPIES FURNISHED: Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Carl Seidel c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Betty Holcombe c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether the Outdoor Advertising Permits AG820-2 and AG821-2 issued to Respondent, Headrick Outdoor Advertising, (Headrick) should be revoked because Headrick no longer has the permission of the property owner to maintain the subject sign at that location. The Department of Transportation (DOT) presented the testimony of Jack Culpepper and Phillip N. Brown, together with four exhibits admitted into evidence. Headrick presented the testimony of James K. Baughman and had one exhibit admitted into evidence. At the conclusion of the proceedings, the parties agreed that their proposed orders would be filed ten (10) days following filing of the transcript. The transcript was filed on April 22, 1982. Both parties have failed to file proposed orders within ten days following filing of the transcript. Accordingly, this Recommended Order is entered without consideration of any proposed findings of fact or conclusions of law proposed by the parties.
Findings Of Fact Headrick Outdoor Advertising is the holder of permits AG820-2 and AG821-2 located on U.S. 29, three miles north of Alternate 90, in Escambia County, Florida. These permits were originally issued to Western Gate Sign Company in 1982. The permits were subsequently purchased by Headrick Outdoor Advertising. On November 20, 1985, DOT received a letter from Frances E. Hampton, the owner of the property on which the signs had been placed, indicating that the lease with Western Gate Sign Company was signed by an unauthorized person and that a subsequent lease dated October, 1984, had been entered into with Franklin Sign Company. Upon receipt of this letter, DOT wrote a letter to Headrick Outdoor Advertising, giving Headrick thirty days to show cause why its permits should not be revoked because they did not have the continuing permission of the owner. In response to that letter, Headrick requested this formal administrative hearing. Headrick did not present any evidence to DOT prior to this proceeding or in this proceeding which established any continuing permission of the owner. Headrick did introduce a document entitled Land Lease Agreement between Frances E. Hampton and Headrick to erect a sign in the subject location. However, this document contained no date and it therefore cannot be determined when the lease was entered into and the time periods covered by the lease. By Mr. Baughman's own admission, Headrick does not currently have permission of the landowner, having released the landowner from all leases during the pendency of this case. The lease agreement which Headrick introduced was admittedly not signed until some time in 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits AG820-2 and AG821-2 be revoked. DONE AND ENTERED this 11th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of May, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 James K. Baughman, Sr. Headrick Outdoor, Inc. 808 Brainerd Street Pensacola, Florida 32503 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility under law of regulating and controlling outdoor advertising signs such as the one at issue in these proceedings. The Respondent, Marcent Florida, Inc., maintains or controls an outdoor advertising sign located at the intersection of Sandlake Road (State Road 482) and Interstate 4. The sign is located on property belonging to Grenada N.V. but Respondent has permission to maintain the sign at the location. The sign is approximately 14 feet by 48 feet, is 30 feet above ground, and, according to Respondent, "looks similar to a standard roadside billboard." At all times material to this case, the above-described sign did not have a valid DOT sign permit. At all times material to this case, the above-described sign contained language advertising lakefront, lakeview, homesites at North Bay. Additionally, the sign advertised a development known as Park Terrace. Both of the referenced developments are off-site and not immediately adjacent to the subject property. At all times material to this case, the above-referenced sign was located two hundred feet west of the center line of Sand Lake Road. Further, the sign was fifteen feet back from the right-of-way. The subject sign was erected in approximately 1985 or 1986 and is within 1500 feet of a DOT permitted sign. After Respondent received the notice of alleged violations, it made efforts to alter the language of the sign so that it would only advertise the availability of the property on which it is placed. To the date of the hearing, such changes had not been completed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding the subject sign to be in violation of Chapter 479 as set forth above. DONE and ENTERED this 21st day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 4 are accepted. Paragraph 5 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 6 and 7 are accepted. Paragraph 8 is rejected as irrelevant or argument. Paragraphs 9 and 10 are accepted. Paragraph 11 is accepted. Paragraph 12 is rejected as irrelevant or argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 9 are rejected as irrelevant, argument or fact not supported by the weight of the evidence. COPIES FURNISHED: Jay O. Barber Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas M. Ramsberger Akerman, Senterfitt & Eidson Firstate Tower 255 Orange Avenue Post Office Box 231 Orlando, Florida 32802-0231 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue As stated by the Administrative Law Judge in her Recommended Order, the issue presented is: "Should certain outdoor advertising signs owned by Respondent Whiteco Metrocom (now known as Chancellor Media Whiteco Outdoor Corporation) and Respondent Chancellor Media Whiteco Outdoor Corporation (Chancellor) be removed as a result of notices of violations brought by Petitioner Department of Transportation (the Department) against Chancellor?"
Findings Of Fact After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact contained in paragraphs 1 through 3, 5 through 17, and 19 through 20 of the Recommended Order are supported by the record and are accepted. Findings of Fact contained paragraph 4 regarding the lack of evidence regarding the designated land use for the areas in which the signs are located are rejected and deleted as not supported by competent substantial evidence. The Findings of Fact contained in paragraph 4 as herein modified are adopted and incorporated by reference as if fully set forth herein. Finding of Fact No. 18 is modified as hereinabove corrected, and as modified is adopted and incorporated by reference as if fully set forth herein.
Conclusions This proceeding was initiated by Requests for Formal Administrative Hearing filed by Respondent, WHJTECO METROCOM, and Respondent, CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION (hereinafter collectively CHANCELLOR), on January 14, 1999 and January 25, 1999. The requests for administrative hearing were filed in response to Notices of Violation issued by Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), for CHANCELLOR'S sign structures located on US 1 and Interstate 95, in Volusia County, Florida. The Notices were issued because CHANCELLOR reerected its nonconforming outdoor advertising signs which were destroyed by fire. The matter was referred to the Division of Administrative Hearings (hereinafter DOAH), and DOAH issued its Initial Orders assigning the cases to Stephen F. Dean, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. On April 20, 1999, Judge Dean issued an order consolidating the cases and setting the matters for hearing on August 27-29, 1999. On August 25, 1999, Suzanne F. Hood, a duly appointed Administrative Law Judge to whom these matters were reassigned, issued an "Order Canceling Hearing and Requiring Joint Stipulation." In her order, Judge Hood ordered the parties to file a "Joint Stipulation of Facts as to the status of the subject billboards as conforming or nonconforming and the reasons therefore" and a "Joint Stipulation of Record Evidence, listing specific testimony and exhibits from the consolidated cases beginning with DOAH Case Nos. 99-0486T, 99-0903T, and 99-0659T." The parties entered into and filed a Joint Stipulation dated August 25, 1999, which is attached hereto and incorporated by reference. Thereafter, DOAH issued an order severing several of the originally consolidated cases and closing the files on those cases. On September 20, 1999, the DEPARTMENT filed its "Notice of Submitting Record." On September 22, 1999, CHANCELLOR submitted its Proposed Recommended Order, and on September 28, 1999, the DEPARTMENT filed its Proposed Recommended Order. On October 28, 1999, the Administrative Law Judge issued her Recommended Order. On November 5, 1999, the DEPARTMENT filed its exceptions to the Recommended Order, and on November 10, 1999, CHANCELLOR submitted its exceptions to the Recommended Order. On November 15, 1999, CHANCELLOR filed responses to the DEPARTMENT'S exceptions and on November 18, 1999, the DEPARTMENT filed responses to CHANCELLOR'S exceptions.
Appeal For This Case THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULED OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Peter Wright District Five ODA Administrator 719 South Woodland Boulevard DeLand, Florida 32721-0057 Aileen M. Reilly, Esquire Livingston & Reilly, P.A Post Office Box 2151 Orlando, Florida 32802-2151 Juanice Hagan Assistant State Right of Way Manager for Operations Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 22 Tallahassee, Florida 32399-0450 Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Attachment STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION, Petitioner, vs. DOAH CASE NOS.: 99-0904T 99-0905T WHITECO METROCOM DOT CASE NOS.: 99-0022 99-0023 Respondent. / DEPARTMENT OF TRANSPORTATION, Petitioner, DOAH CASE NOS.: 99-0982T 99-0984T vs. DOT CASE NOS.: 99-0029 99-0031 CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION Respondent. / JOINT STIPULATION The parties, by and through their undersigned counsel, submit the following Joint Stipulation pursuant to the order vacating the Final Hearing scheduled in this matter for August 26 and 27, 1999, and respectfully request that the above captioned matters be decided on the basis of the matters stipulated to herein, together with the records identified herein.
Findings Of Fact On February 9, 1982, George King, Sign Inspector for the Department of Transportation, observed and checked a sign located approximately three-tenths of a mile east of the Hendry County line on state Road U.S. 27, in Palm Beach County, Florida. State Road U.S. 27 is a federal-aid primary highway which is open and utilized by the traveling public. The sign in question, which is visible from U.S. 27, advertises "Cape Realty" and is located approximately two feet off of the right-of-way line, outside the city limits in an area zoned agricultural. At the time the sign was inspected on February 9, 1982, there was no state permit attached to the sign. An examination of the photograph of the subject sign taken by the inspector on December 14, 1982, at the same location, shows no state permit affixed to the structure. Additionally, by timely failing to answer admissions requested by Petitioner, the Respondent is deemed to have admitted ownership and that the subject sign was erected without a state permit in an unpermittable zoning area, outside any incorporated city of town, adjacent to and visible from the main traveled way of U.S. 27.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Department of Transportation finding that the sign in question is in violation of applicable rules and statutes and should be removed. DONE and ORDERED this 8th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration 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 8 day of March, 1983. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Mrs. Flora Elena Caso c/o Cape Investment Realty, Inc. 417 West Sugarland Highway Clewiston, Florida 33440 John Beck, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of the sign depicted in Exhibit 1 located on the west side of U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. No permit has ever been issued for this sign. DOT is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. U.S. 19 is a federal aid primary highway. The sign in issue is an outdoor advertising sign as that term is defined in Section 479.01(14), Florida Statutes (1989). On April 4, 1975, Palmetto County issued Respondent a building permit to erect a sign in the same general location as the existing sign. Bay Colony had maintained a large billboard at this approximate location sometime before 1969. By 1975, the lumber and timbers in the billboard had rotted and required replacement. No evidence was presented that a state permit was ever issued for the original billboard. The existing sign was removed by county officials when a drain line was placed under U.S. 19 and replaced with a strengthened base when the work was completed. On one occasion during the last few years, the sign was demolished by vandals and replaced at a slightly different location. The sign is on private property owned by a Van Hoogen who lives in New Hampshire. The property owner's permission for the use of this site is not an issue in these proceedings. There exists a permitted sign some 570 feet from Respondent's sign located on the same side of U.S. 19 and visible from the same direction as Respondent's sign.
Recommendation It is recommended that a final order be entered requiring Respondent to remove its sign along U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS 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 4th day of May, 1990. COPIES FURNISHED: Frank J. Seiz 481 Palmetto Point Road Palmetto, FL 34221-9721 Rivers Buford, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
