12-002326 Thoroughbred Development, Inc., And Rodney Dessberg vs. Department Of Transportation Status: Closed Recommended Order on Monday, December 31, 2012.

Summary: Exemption from permit requirements ended when parcels were sold to individual buyers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOROUGHBRED DEVELOPMENT, INC., )

AND RODNEY DESSBERG , )

)

Petitioners , )

)

vs. ) Case No. 12 - 2326

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMENDED ORDER

On November 24, 2012, an administrative hearing in this case

was held by video tele conference in Sarasota and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCE S

For Petitioner: Robert K. Lincoln, Esquire

Icard, Merrill, Cullis, Timm,

Furen and Ginsburg, P.A.

Suite 600

2033 Main Street

Sarasota, Florida 34237 - 6093

For Respondent: Susan Schwartz, Esquire

Department of Tran sportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Transportation (Respondent) should approve the application filed

by Thoroughbred Development, Inc. , and Rodney Dessberg

(Petitioners) to permit an existing sign under the " grandfather "

provision set forth in s ection 479.105(1)(e), Florida Statutes

(2012) . 1/

PRELIMINARY STATEMENT

By Notice of Violation dated Januar y 31, 2012, the

Respondent notified the Petitioners that the sign at issue in

this proceeding was in violation of s ection 479.105 and that the

sign had to either be permitted or removed. The Petitioners

thereafter filed an application to obtain the permit .

By notice dated May 24, 2012, the Respondent denied the

application. The Petitioners filed a Petition for Administrative

Hearing that the Respondent forwarded to the Division of

Administrative Hearings (DOAH). DOAH scheduled and conducted the

formal hearing.

Prior to the hearing, the parties filed a Joint Pre - hearing

Stipulation , including a statement of admitted facts that have

been adopted and incorporated herein as necessary.

At the hearing, the Petitioners presented the testimony of

one witness and had Exhibits 1 through 8 admitted into evidence.

The Respondent presented the testimony of one witness and had

Exhibits 1 through 6 admitted into evidence. Joint E xhibits 1

through 5 were admitted by agreement of the parties.

The T ranscript of the h earing was filed on November 30,

2012. Both parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. The Respondent is the state agency charged with

regulation and permitting of certain outdoor advertising signs

placed on specified highways.

2. The Petitioners are the applicants for a sign permit,

application number 58806/58807. The Petitioners own the sign and

the property upon which the sign is located.

3. The sign and p roperty are located on U . S . 41, a federal

aid primary highway designated in 2003 as a " Scenic Highway. "

The relevant portion of U . S . 41 is also referred to as the

Tamiami Trail.

4. The sign at issue in this proceeding (the " 1964 sign " )

was erected in 1 964 by owner Blue Heron fruit shippers. The sign

has remained unpermitted, structurally unchanged , and

continuously maintained at the same location since installation.

5. The 1964 sign was built on a parcel of land (the " sign

parcel " ) located at 7450 T amiami Trail, Sarasota, Florida. A

small commercial building also occupied the parcel. The location

is within an unincorporated part of Manatee County.

6. The sign parcel has been zoned for commercial use since

the erection of the sign in 1964. The s ign is not located on

state right - of - way and is not a safety hazard.

7. When the 1964 sign was erected, it was used to promote

the Blue Heron fruit shipping business located on an adjacent

parcel at 7440 Tamiami Trail, Sarasota, Florida (the " Blue Heron

parcel " ).

8. At all times material to this case, the two parcels have

had separate legal descriptions. The parcels have separate

driveway connections to Tamiami Trail. For reasons unknown, the

addresses of the parcels were changed at some point, but the

legal descriptions of the parcels have not been amended.

9. Although the parcels were presumably commonly owned or

leased by the Blue Heron fruit business at the time the 1964 sign

was erected, the parcels were independently sold and owned

individua lly by separate purchasers.

10. The sign parcel is currently designated as 7851 North

Tamiami Trail, Sarasota, Florida. The commercial building

remains on the property. The Blue Heron parcel is currently

designated as 7849 North Tamiami Trail, Sarasota , Florida.

11. In October 1976, Kerry and Jane Kirschner purchased the

Blue Heron parcel and the fruit business thereon. The Kirschners

continued to operate the fruit business. The sign parcel was

owned by another individual.

12. Although there was n o written agreement between the

Kirschners and the owner of the sign parcel, Mr. Kirschner

testified at the hearing that he made a monthly payment to the

owner of the sign parcel so that he could continue using the sign

to promote the fruit business. It i s reasonable to presume that

the monthly payment was based upon an agreement between the two

owners. It would be unreasonable to assume that the payment was

a gift from Mr. Kirschner to the owner of the sign parcel.

13. In January 1978, the Kirschners p urchased the sign

parcel from the owner to whom Mr. Kirschner had been paying rent.

Mr. Kir s chner testified that the Kirschners bought the sign

parcel to obtain the commercial building and to continue using

the 1964 sign to promote the fruit business.

1 4. In October 1978, " Florida Outdoor, Inc. " filed an

application for a two - sided sign (the " 1978 sign " ) located on

Tamiami Trail, 444 feet to the north of the 1964 sign.

15. A sign permit application must identify the location of

regulated signs located nearby the site of the proposed sign.

Because the 1964 sign appeared to advertise an on - premises

business and was therefore not subject to regulation, the

applicant did not reference the 1964 sign.

16. The Respondent approved the application and issued a

permit (tag number AW881/AW882) to the applicant.

17. In November 1979, " Florida Outdoor, Inc. " filed an

application for a two - sided sign (the " 1979 sign " ) located on

Tamiami Trail, 150 feet to the south of the 1964 sign. Again,

the applicant did not reference the 1964 sign.

18. The Respondent approved the application and issued a

permit (tag number AW698/AW699) to the applicant.

19. Both the 1978 and 1979 signs remain at their permitted

locations.

20. The Kirschners never combined the two parcel s. They

sold the Blue Heron parcel in 1986 and sold the sign parcel in

1993.

21. The Notice of Violation dated January 31, 2012 , was the

first violation ever issued by the Respondent regarding the 1964

sign.

22. At the hearing, the Respondent acknowle dged that , had

the 1964 sign not been considered exempted from regulation as an

" on premises " sign, it could have been permitted prior to the

installation of the 1978 and 1979 signs.

23. Following the installation of the 1978 and 1979 signs,

the 1964 sig n could not have been permitted (absent the

" grandfather " provision) due to sign spacing regulations not at

issue in this proceeding.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matt er of this

proceeding. §§ 120.569 and 120.57, Fl a. Stat.

25. The Petitioners have the burden of establishing by a

preponderance of the evidence entitlement to the permit sought.

Fla. Dep ' t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981); § 120.57(1)(j). In this case, the burden

has been met.

26. Section 479.105 provides , in relevant part , as follows:

Signs erected or maintained without required

permit; removal. --

(1) Any sign which is located adjacent to

the right - of - way of an y highway on the State

Highway System outside an incorporated area

or adjacent to the right - of - way on any

portion of the interstate or federal - aid

primary highway system, which sign was

erected, operated, or maintained without the

permit required by s. 479 .07(1) having been

issued by the department, is declared to be a

public nuisance and a private nuisance and

shall be removed as provided in this section.

(a) Upon a determination by the department

that a sign is in violation of s. 479.07(1),

the departme nt shall prominently post on the

sign face a notice stating that the sign is

illegal and must be removed within 30 days

after the date on which the notice was

posted. However, if the sign bears the name

of the licensee or the name and address of

the nonli censed sign owner, the department

shall, concurrently with and in addition to

posting the notice on the sign, provide a

written notice to the owner, stating that the

sign is illegal and must be permanently

removed within the 30 - day period specified on

the posted notice. The written notice shall

further state that the sign owner has a right

to request a hearing, which request must be

filed with the department within 30 days

after the date of the written notice.

However, the filing of a request for a

heari ng will not stay the removal of the

sign.

* * *

(d) If, after a hearing, it is determined

that a sign has been wrongfully or

erroneously removed pursuant to this

subsection, the department, at the sign

owner ' s discretion, shall either pay just

c ompensation to the owner of the sign or

reerect the sign in kind at the expense of

the department.

(e) However, if the sign owner demonstrates

to the department that:

1. The sign has been unpermitted,

structurally unchanged, and continuously

maintained at the same location for a period

of 7 years or more;

2. At any time during the period in which

the sign has been erected, the sign would

have met the criteria established in this

chapter for issuance of a permit;

3. The department has not initiated a notice

of violation or taken other action to remove

the sign during the initial 7 - year period

described in subparagraph 1.; and

4. The department determines that the sign

is not located on state right - of - way and is

not a safety hazard, the sign may be

c onsidered a conforming or nonconforming sign

and may be issued a permit by the department

upon application in accordance with this

chapter and payment of a penalty fee of $300

and all pertinent fees required by this

chapter, including annual permit renewal fees

payable since the date of the erection of the

sign.

27. The parties have stipulated that: the sign has been

unpermitted, structurally unchanged, and continuously maintained

at the same location for a period of seven years or more; the

Respondent ha s not initiated a n otice of v iolation or taken other

action to remove the sign during the initial seven - year period

after erection ; and the sign is not a safety hazard or located on

state right - of - way.

28. The Respondent has acknowledged that the sign co uld

have been permitted had it not been thought to be exempt from

such permitting. The issue in the case is therefore whether at

some point after the sign was constructed, the exemption could

have been lost.

29. It is undisputed that when the 1964 sign was

constructed by the Blue Heron fruit business, Florida law

essentially exempted a sign from permitting regulations where the

sign was constructed by a business owner or lessee on land

belonging to such owner or lessee to promoting a business within

100 feet of the sign.

30. The statutory exemption remained law as of 1976, when

the Kirschners purchased the Blue Heron parcel, but the two

parcels were no longer under common ownership or lease. The sign

parcel was owned by a separate individual with no apparent

relationship to the Blue Heron fruit business and to whom

Mr. Kirschner made a monthly payment for use of the sign. The

evidence is sufficient to establish that as of 1976, the 1964

sign was no longer entitled to exemption from permitting

regulat ions.

31. The Respondent has acknowledged that the sign could

have been permitted had it not been thought to be exempt from

regulation. The parties have stipulated as to the remainder of

s ection 479.105(1)(e). Accordingly, the application filed by the

Pe titioners should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

enter a final order granting the application for the sign permit

referenced herein.

DONE AND ENTERED this 31st day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 31st day of December , 2012 .

ENDNOTE

1/ All statutory references are to Florida Statutes (20 12 ),

u nless otherwise indicated .

COPIES FURNISHED:

Ananth Prasad, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Gerald B. Curington, General Counsel

Department of Transporta tion

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0 450

Robert K. Lincoln, Esquire

Icard, Merrill, Cullis, Timm,

Furen and Ginsburg, P.A.

Suite 600

2033 Main Street

Sarasota, Florida 34237 - 6093

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Stre et

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.