14-004927 Department Of Transportation vs. I-10 Pecan House, Inc. Status: Closed Recommended Order on Monday, May 4, 2015.

Summary: 14-4926: Recommend removal of billboard identified in NOV 1487. 14-4927: Recommend reconsideration of application pursuant to pre-2014 version of 479.105. 14-4928: Removal of vegetation enhanced visibility of billboard; rec. $1k fine, no mitigation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. Case Nos. 14 - 4926

14 - 4927

I - 10 PECAN HOUSE, INC.,

Respondent.

_______________________________/

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. Case No. 14 - 4928

OLAN Q. NOBLES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administra tive Law Judge Edward T. Bauer he ld a final

hearing in this case in Tall ahassee, Florida, on January 9 and

February 13 , 2015 .

APPEARANCES

For Petitioner: Richard E. Shine, Esquire

Austin M. Hensel, Esquire

Department of Transportation

605 Suwan n ee Street, Mail Stop 58

Tallahassee, Florida 32399

For Respondent: Sherry D. Walker , Esquire

1804 Miccosukee Commons Drive, Suite 206

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

As to DOAH Case Nos. 14 - 4926 and 14 - 4927, the issues are

whether the billboards identified in the notice s 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 " provisio n 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.

PRELIMINARY STATEMENT

On or abou t December 17, 2012, Petitioner Department of

Transportation ("Department") issued a "Notice of Violation Î

Illegally Erected Sign" (number 1352) , which advised the

proprietor of I - 10 Pecan House, Olan Q. Nobles, that his

billboard (bearing advertising copy " Exit Now") l ocated at

milepost 17.554 of I - 10 was subject to removal. A second notice

of violation (number 1487) , likewise issued on December 17 ,

2012, informed Mr. Nobles that the Department intended to remove

his billboard (b earing advertising copy "Welcome to Big O's / We

Appreciate Your Business") located at milepost 17.339 of I - 10.

Mr. Nobles timely requested a formal administrative hearing with

respect to each notice of violation.

On April 14, 2013, prior to the referr al of the foregoing

matters to the Division of Administrative Hearings ("DOAH") , the

Department charged Mr. Nobles with a violation of section

479.106(7), Florida Statut es, which prohibits the unlicensed

removal, cutting, or trimming of vegetation . Subseq uently , on

May 16, 2013, Mr. Nobles submitted a timely request for a formal

hearing.

The parties thereafter engaged in extended settlement

negotiations, during which Mr. Nobles applied for outdoor

advertising permits in connection with the billboards ide ntified

in the December 17, 2012, notices of violation. The Department

ultimately denied the permit appli cations, prompting a renewed

request from Mr. Nobles to refer each case to DOAH .

The Department forwarded the matters to DOAH on October 20,

2014, which were assigned DOAH Case Nos. 14 - 4926, 14 - 4927, and

14 - 4928 ÏÏ relating, respectively, to notice of violation 1487,

notice of violation 1352, and the vegetation removal action.

Thereafte r, by order dated October 31, 2014, the three cases

were consolidated for further proceedings.

As noted above, the final hearing was held on January 9 and

February 13, 2015, during which the Department called three

witnesses (Morris Pigott, Bill Armstro ng , and Michael Green ) and

introd uced three exhibits, numbered 1 through 3. Mr. Nobles

testified on his own behalf, presented the testimony of three

other witnesses (Don Joiner, Michael McDougal , and Walton

Poppell ), and introduced ten exhibits, numbered 8, 9, 10, 11,

16, 17, 18, 19, 20, and 21. 1 / The parties also introduced s even

joint exhibits, numbered 1 through 7.

Transcripts of the January 9 and February 13 proceedings

were filed, respectively, on March 13 and February 23, 2015. 2 /

The parties thereafter submitted proposed recommended order s ,

which the undersigned has considered in the preparation of this

Recommended Order.

Unless otherwise indicated, all references to the Florida

Statutes are to the current codification .

FIND INGS OF FACT

I. DOAH Case Nos. 14 - 4926 & 14 - 4927

A. The Parties

1. 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 .

2. The Department is the state agency responsible, inter

alia, for the regulation of outdoor advertisi ng signs located

within 600 feet of, and visible from, interstate highways.

B. The Events

3. 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 proceedi ng. 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 interse ction of that roadway and I - 10.

4 . 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 advertis ed the open - air market and the related business

activities conducted on the third parcel.

5 . Th e 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 secon d 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 ÏÏ products the Walkers offered for sale at the

nearby open - air market. B y the end of 1976 , the Walkers also

c onstructed (upon the third parcel ) a billboard advertising the

open - air market and jelly/candy manufacture.

6. Alt hough the billboards referenced above were visible

from I - 10 and located within 600 feet of the roadway ÏÏ and, thus,

within th e Department's "controlled area" ÏÏ 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) und er 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.

7. For reasons that will soon be apparent, it is necessary

to inject a third billboard into this discussion: i n 1993, the

Walkers constructed on the third tract of land a "double - stack"

billboard, which is situated less than 200 fee t and 1000 feet,

respectively, from the signs erected in 1976 upon the third and

second tracts. Although the double - stack billboard would h ave

ostensibly satisfied the on - premises exemption, the Walkers

nevertheless applied for ÏÏ and were granted ÏÏ 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.

8 . In 1995 , Mrs. Walker transferred control of Pecan House

to Mr. Nobles, who until that tim e had assisted the Walkers on

an as - needed basis . Soon thereafter, Mr. Nobl es 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 t hird parcel).

9 . At or around that time, the L egislature amended the

definition of "premises" to include a contiguity requirement. 3 /

This is significant, for the second and third parcels ÏÏ the

locations of the two billboards at issue herein ÏÏ are not

contiguous to the first parcel but, rather, are separated by a

tract in which nei ther the Walkers nor Mr. Nobles holds a

leasehold or ownership interest. Further, there is no recorded

easement connecting Mr. Nobles' three parcels.

10. Thus, although th e two billboards constructed in 1976

lost their on - premises status in the mid - 1990 s , this fact

apparently went unnoticed by the Depar tment for roughly 13

years. Then, i n March of 2008, the Department issued notice s of

violation in connect ion with both billboards. Among other

things, the notices alleged that "outdoor advertising permit[s]

[were] required, but ha[d] not been i ssued" for the billboards,

which Mr. Nobles was instructed to remove within 30 days.

11. A short time thereafter, an inspector or other agent

of the Department conducted, in Mr. Nobles' presence, an

e xamination of the 1976 billboards and Pecan House's business

operations. At the conclusion of her insp ection, 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 exem ption and, thus, were exempt from licensure.

The reasonableness of this understanding was bolstered by the

fact that, subsequent to the inspection, Mr. Nobles heard

nothin g more from the Department concerning the March 2008

notices of violation. 5 /

12. More than four years later, on December 17, 2012, the

Department issued new notices of violation in c onnection 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 "E xit Now" );

and notice 1487 , relating to the billboard erected upo n the

second parcel , which presently reads "Welcome to Big O's / We

Appreciate Your Business" (hereinafter " Big O's " ) .

13. T he 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 th is argument, Mr. Nobles applied for an

outdoor adver tising permit for each billboard. The applications

were ultimately denied , prom pting the Department to refer the

matters to DOAH for further proceedings.

14. 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 u nless

the signs meet either the current statutory requirements for a

permit or, alternatively, the "grandfather" provisi on set forth

in section 479.105, which authorizes licensure if the billboards

satisfy earlier statutory criteri a and certain other conditions.

C. Eligibility for Licensure Î "Exit Now"

15. 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 me re 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.

16. As for the potential applicability of the grandfather

provision to the "E xit Now" billboard, it is critical to observe

that the Department's delay of nearly five years ( March of 2008

throu gh December of 2012) in pursuing removal has placed

Mr. Nobles at a significant disadvantage.

17. In particular, had the Department moved forward in

2008 ÏÏ 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 ÏÏ Mr. Nobles

likel y would have applied for a permit, 6 / which the Departmen t

would have evaluated pursuant to the version of the grandfather

pro vision 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

sit uations 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 dem onstrate that the billboard would have met the

c riteria for licensure in effect "[a]t any time during the

period in wh ich the sign has been erected." § 4 79.105(1)(e)2.,

Fla. Stat. (2013 )(emphasis added).

18. 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 add ed) . 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 whi ch the sign was subject to the

D epartment's jurisdiction. § 479.105(1)(c)2.b., Fla. Stat.

(2014).

19. As Mr. Nobles readily acknowledges , his effort to

obtain a permit for the "Exit Now" billboard i s a nonstarter

under the 2014 version of the grandfather provis ion, whose plain

language prohibits the issuance of a permit where, as here, the

sign was previously exempt from licensure . This does not end

the matt er, however, for the undersigned finds that the

Department's unjustified delay in pursuing removal ÏÏ along with

its agent's erroneous statement that the billboard was legal,

upon which Mr. Nobles relied ÏÏ 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.

2 0 . Pursuant to the pre - 2014 codification of section

4 79.105 , "grandfathering" was authorized if the owner could

demonstrate : 1) that the sign i n 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 p eriod 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 remo ve the sign

during the initial s even - 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 confor ming or nonconforming and

issue a permit.

21. 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 sev en - 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, t hereby satisfying the fourth prong. 7 /

22. 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 billb oard ÏÏ which ,

as noted previously, was issued a permit in 1993 and remains

licensed . Prior to 1993, h owever, there does not appear to be

any spacing conflict that would preclude licensure in this

instance. 8 /

23. 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 indu strial - unzoned areas."

24. Unfortunately, this issue cannot be resolved on the

instant record, for there is a dearth of persuasive evidence

conce rning the zoning designation of the third parcel (the

location of the "Exit Now" sign) during the critical p eriod 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, e v en 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 ÏÏ namely, the manufacture of candy and jelly and the sale

of pecans ÏÏ would s atisfy the use test at any time between 1976

and 1 993. 10 /

25. 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 - 2 014 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.

D. Eligibility for Licensure Î "Big O's"

26. 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

p rovision.

27. 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 di stinction is fatal to Mr. Nobles , as every codification

o f 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 n o 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.

28. 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 l icensure at any point in time .

Accordingly, the undersigned is constrained to recommend th e

sign's removal pursuant to section 479.105.

II. DOAH Case No. 14 - 4928

29. As noted earlier in this Order, DOAH Case No. 14 - 4928

involves an allegation that Mr. Nobles engaged in ÏÏ or benefitted

from ÏÏ the unpermitted removal, cutting, or trimming of

v egetation. The relevant facts are recounted below.

30. 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.

31. 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 t rouble 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.

32. In response, the Department requested one of its

contractors, Metric Engineering, Inc. ("Metric"), to conduct a

field inspection of the are a. The inspection was performed on

or about March 12, 2013, by Bill Armstrong, a certified arborist

employed by Metric.

33. During the course of his inspection, Mr . Ar mstrong

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 .

34. Imm ediately b eyond this 12 - foot zone, however,

Mr. Armstrong noticed evide nce of other activity that had

occurred much more recently. Specifically , Mr. Armstrong

observed , on the side of the fence immediately opposite

Mr. Nobles' truck, a n area 120 feet in length ( parallel to the

fence line) and approximately 25 feet in width that had been

cleared o f vegetation.

35. Within this 120 by 25 foot area, Mr. Armstrong

discovered 30 tree stumps, which, upon close examination,

exhibited signs of having been recen tly 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.

36. Several weeks later, Mr. Pigott conducte d 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

fu rther conclude d, 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. ) T o 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.

37. Thereafter, on April 14, 2013, Mr. Pigott cited

Mr. Nobles for violating sectio n 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 Depart ment

intended to assess mitigation in the amount of $8,304.25.

38. Mr. Nobles promptly denied any and all involvement i n

the removal, claiming that a road crew had cleared the

vegetation two years earlier. In response, Mr. Pigott contacted

Mr. Armstron g , disclosed Mr. Nobles' explanation, and asked that

a follow - up inspection be performed.

39. 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

in ternodes ÏÏ i.e., rings that denote grow th, 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 vegetati on had been cleared several years earlier. 13 /

40. 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 .0 57.

41. 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 the ir market value consists entirely

of hearsay. Indeed, the Department called no witness who

po ssessed 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 plu gged the averages into the formula .

42. 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 amo un t of mitigation ,

the Department was obligated to adduce at least some non - hearsay

evidence of the market values ÏÏ the starting point of the

calculations. Inasmuch as the record is devoid of such

evidence, the Department's request for mitigation must be

denied.

CONCLUSIONS OF LAW

I . Jurisdiction

43 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

II. DOAH Case Nos. 14 - 4926 & 14 - 4927

44. The undersigned returns now to the subject of the

"Exit Now" and "Big O's" billboards, which the Department

contends are subject to removal.

45. As a threshold matter, it is the Department's burden

to prove that the signs fall within the ambit of chapter 479

and, thus, require a permit. See Y oung v. Dep't of Cmty. Aff. ,

625 So. 2d 831, 833 (Fla. 1993)("The general rule is that, apart

from statute, the burden of proof is on the party asserting the

affirmativ e of an issue before an administrative tribunal.").

46. This question is easily resolved in the Department's

favor, as the evidence conclusively demonstrates that both signs

are visible from I - 10 and located within a "controlled area."

See § 479.07(1), Fla. Stat. (prohibiting, inte r alia, a person

from using or maintaining any sign that is visible from an

interstate highway and located within a controlled area , unless

a permit has been issued or the sign falls within one of the

exceptions enumerated in section 479.16); § 479.01(5), Fla.

Stat. (defining controlled area as "660 feet or less from the

nearest edge of the right - of - way of any portion of the State

Highway System, interstate, or federal - aid primary highway

system and beyond 660 feet of the nearest edge of the right - of -

way of any portion of the State Highway System, interstate

highway system, or federal - aid primary system outside an urban

area" ).

47 . With the Department having met its initial burden, it

is necessary next to determine if the signs are exempt from the

requirement that a permit be obtained. As to this issue, the

burden of proof falls on Mr. Nobles. Walker v. Dep't of

Transp. , 352 So. 2d 126, 127 (Fla. 1st DCA 1977).

48 . Although sectio n 479.16 enumerates various exemptions

from the permit requirement , only one ÏÏ the "on premises"

exemption ÏÏ is potentially applicable to Mr. Nobles' signs . As

the Department correctly o bserves, the relevant question is not

whether the signs formerly satisfied the on - premises exemption

(although they did, from 1976 through the mid - 1990s) but,

rather, whether the signs are presently exempt from licensure.

49. With this in mind, the current formulation of the on -

premises exemption is set forth in section 479.16(1), which

provides , in relevant part , that a permit is not required for:

Signs erected on the premises of an

establishment which consist primarily of the

name of the establishment or identify the

principal or accessory merchandise,

services, activities, or entertainment sold,

produced, manufactured, or furnished on the

premises of the establishment . . . .

50 . In turn, "premises" is defined as:

[A]ll the land areas u nder ownership or

lease arrangement to the sign owner which

are contiguous to the business conducted on

the land except for instances where such

land is a narrow strip contiguous to the

advertised activity or is connected by such

a narrow strip, the only v iable use of such

land is to erect or maintain an advertising

sign. If the sign owner is a municipality

or county , the term means all lands owned or

leased by the municipality or county within

its jurisdictional boundaries.

§ 479.01( 17), Fla. Stat. ( emphasis added).

51 . Mr. Nobles has failed to demonstrate that either of

the billboards presently satisfies the on - premises exemption,

for the record makes pellucid that the second and third parcels

of land ÏÏ the respective locations of the "Big O's" and "Exit

Now" signs ÏÏ are not contiguous to t he first parcel, upon which

Pecan House is situated. Inde ed, the second and third parcels

are completely separated from the first parcel (the location of

Pecan House) by a n intervening tract of land in which

M r. Nobles has no recorded ownership or leasehold interest.

52 . Mr. Nobles resis ts this conclusion, arguing that the

second and third parcels are contiguous to the first by virtue

of a "prescriptive easement" ÏÏ which, according to Mr. Nobles ,

consists of a dirt path that begins at the first parcel, runs

along the fence lin e of the interstate , extends over the

intervening tract, and ends at the third parcel .

53 . This contention is unpersuasive , as it is foreclosed

by the plain language of se ction 479.01(17) . First, e ven

assuming that the elements of a prescriptive easement are

satisf ied , 14 / Mr. Nobles neither "owns" nor "leases" the dirt

path that extends over the intervening tract; as such, the first

parcel is not contiguous to the second or third. § 479.01(17),

Fla. Stat. (defining "premises" as all the land areas "under

ownership or lease arrangement to the sign owner which are

contiguous to the business conducted on the land")(emphasis

a dded). Moreover, a finding of contiguity is preclud ed by the

fact that the dirt path serves no viable purpose except to

facilitate Mr. Nobles' maintenance of the billboards. Id.

(excluding from the definition of "premises" land areas

connected by " a narrow strip, the only viable use of such land

is to erect or maintain an advertising sign").

54 . As a backup argument, Mr. Nobles contends that the

"Exit Now" billboard satisfies the on - premises exemption because

it is located on the same parcel (the third) a s the concrete

structure ÏÏ a building utilized solely for storage since the mid -

1990s . This contention likewise fails, for the billboard's

advertising copy is not directing the attention of passersby to

the concrete structure on the third parcel but, rather, to the

Pecan House's retail establishment o n the first parcel. See

People ex rel. Dep't of Transp. v. Maldonado , 104 Cal. Rptr. 2d

66 , 70 - 71 (Cal. Ct. App. 2001)(concluding, under a statutory

provision analogous to section 479.16(1), that lessee of

billboard was not entitled to an on - premises exem ption;

advertising copy directed motorists not to the lessee's business

activities conducted at the site of the sign, but instead to

goods and services located on a diff erent parcel ).

55 . Finally, Mr. Nobles seems to suggest that the "Big

O's" billboard meets the on - premises exemption because, he

claims, the second parcel (upon which the billboard is situated)

"is combined under one parcel number" with the first parcel.

See Resp't PRO, p. 15. Howe ver, the credible testimony of

Mr. Nobles' own surveyor, William Poppell, establishes that the

parcels were "separated in the deed" and, thus, constitute

distinct tracts of land . 15 /

56 . For the reasons expressed above, neither of the

billboards at issue satisfies the on - premises exemption. As

such, the billboards are subject to removal unless they meet

either the current stat utory requirements for a permit or the

grandfather provision set forth in section 479.105 . Each

billboard is discussed separately below.

A. E ligibility for Licensure Î "Exit Now"

57 . As detailed in paragraph 15, supra , the "Exit Now"

sign cannot satisfy the current requirements for licensure due,

among other reasons, to its proximity (190 feet) to the

licensed, double - stack billboard situated upon the same parcel.

See § 479.07(9)(a)1., Fla. Stat. (providing that a sig n may not

be issued a permit unless it is located at least 1500 feet from

any other permitted sign on the same side of an interstate

highway).

58 . Nor does Mr. Nobles fare any better under the current

version of the grandfather provision ÏÏ wh ich took eff ect July 1,

2014 ÏÏ whose plain language excludes any sign , such as the "Exit

Now" billboard, which has previously been exempt from the

requirement that a permit be obtained. See § 479.105(1)(c)2.,

Fla. Stat.

59 . Ordinarily this would end the matter, for the general

rule is that an application should be evaluated pursuant to the

law in effect at the time of the ultimate decision ( i.e., the

entry of a fi nal order, which has not yet occurred ) , as opposed

to the law as it existed at the time the application was filed .

See Ag. for Health Care Admin. v. Mount Sinai Med. Ctr. , 690 So.

2d 689, 691 (Fla. 1st DCA 1997)("No final decision has yet been

rendered in the instant proceedings. Where there is a change in

law in a licensure matter, the law at the time of the decision,

rather than when the application was filed, determines whether

the license should be granted.") .

60 . But this rule, like virtually every other general

rule, admits of excepti ons. Significantly for present purposes,

one such exception inures in cases of undue agency delay. See

Atwood v. State , 53 So. 2d 101 (Fla. 1951). In Atwood , an out -

of - state pharmacist petitioned the state for a reciprocal

pharmacist's license. The Sta te Board of Pharmacy neglected to

act on the application for roughly 17 months, during which time

the relevant statute was amended to de lete the reciprocity

provision. Id. The Supreme Court of Florida ultimately held

that, in light of the agency delay, the application was properly

evaluated pursuant to the law in effect at the time of filing.

Id. ; see also Petty - Eifert v. Dep't of HRS , 1983 Fla. Div. Adm.

Hear. LEXIS 6088 , *17 - 18 (Fla. DOAH May 5, 1983)(citing Atwood

for the prop osition that "the law in effect a t the time of the

license application may be applied in certain situations, if

warranted by the particular facts of the case"), aff'd 443 So.

2d 266 (Fla. 1st DCA 1 983); see generally Ft. Myers Real Estate

Holdings, LLC v. Dep't of Bus. & Prof'l Reg. , 53 So. 3d 1158,

1163 (Fla. 1st DCA 2011).

61 . Returning to the facts at hand, it is evident that the

Department's handling of the "Exit Now" billboard has been less

than expeditious. First, as explained previously, the

Department inexplicably abandoned its initial enforcem ent action

in 2008 , only to revive the matter some four years later. To

make matt ers worse, the Department employee who inspected the

sign in 2008 advised M r. Nobles, erroneously, that it "looked

all right to her ," a statement Mr. Nobles reasonably took to

mean that th e sign did not require a permit . B ut fo r this

misadvice , Mr. Nobles likely would have app lied for a permit at

a much earlier time , which is significant given that the

previous version of the grandfather provision did not preclude

the licensure of formerly - exempt billboards. Finally, the

record reflects that the instant enforcement action, which

pre cipitated the filing of Mr. Nobles' permit application , was

not ref erred to DOAH until October 2014, approximately 21 months

after Mr. Nobles requested a formal hearing.

62 . In view of the foregoing , the "Exit Now" application

should be evaluated pursuant to the version of the grandfather

provision in effect prior to July 1, 2014 , which provided in

relevant part:

(1) Any sign which is located . . .

adjacent to the right - of - way on any portion

of the interstate or federal - aid pr imary

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

sect ion.

* * *

(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 duri ng 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 considered a conforming or

nonconforming sign and may be issu ed a

permit by the department upon application in

accordance with this chapter an d 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.

§ 479.105(1)(e), Fla. Stat. (2013) (emphasis added) .

63 . As detailed in paragraph s 21 through 24 , supra , the

only apparent impediment to licensure is section 479.111(2),

which at all relevant times has limited the issuance of permits

to signs located in "commercial - zoned and industrial - zoned areas

or commercial - unzoned or industrial - unzoned areas." However, as

also explained earlier, the record is insufficiently developed

to determine whether the billboard could have satisfied section

479.111(2) "at any time" from 1976 (when the sign was erected)

forward . Although such an absence of evidence would ordinarily

necessitate an adverse recommendation for the applicant, see

Antel v. Department of Professional Regulation , 522 So. 2d 1056,

1058 (Fla. 5th DCA 1988)(holding that the license applicant

bears the burden of proof), the unusual facts and posture of

this case require that the Department reevaluate the "Exit Now"

application. It is further recom mended that the Department

afford Mr. Nobles a reasonable opportunity to supplement his

application with additional evidence, should he so desire.

B. Eligibility for Licensure - "Big O's"

64 . The undersigned returns now to the "Big O's" sign,

which, like the "Exit Now" billboard, is unable to satisfy

c urrent licensing criteria due , inter alia , to its proximity to

the double - stack billboard . See § 479.07(9)(a)1., Fla. Stat.

(establishing a minimum spacing requirement of 1500 feet for

si g n s located on the same side of an interstate). Moreover , as

with the "Exit Now" billboard, the fact that the "Big O's" sign

was p reviously exempt from licensure renders it ineligi ble for

licensure under the current version of the grandfather

provision. See § 479.105(1)(c)2., Fla. Stat.

65 . However, the evidence de monstrates that, unlike the

"Exit Now" billboard, the "Big O's" sign is positioned within

500 feet of an interstate exit ramp and, thus, constitutes a

safety hazard . See Fla. Admin. Code R. 14 - 10.006(4)(d). This

distinction is absolutely fatal to the "Bi g O's" application,

for every codification of the grandfather provision has

prohibited the licensure of billboards presenting a safety

issue . See, e.g. , § 479.105(1)(e)4., Fla. Stat. (2013);

§ 479.105(1)(e)4., Fla. Stat. (2008); § 479.105(1)(e)5., Fla.

S tat. (1995). Thus, the application would have fared no better

even if the Department had moved forward expeditiously, which

obviates any further analysis under the pre - 2014 grandfather

provision .

66 . F or the reasons articulated herein , the "Big O's"

billboard requires a license; is not exempt from licensure; and

is unable to satisfy either the current requirements for

licensure or any version of the grandfather provision. As such ,

section 479.105 authorizes the Department to remove the sign.

III. DOAH Case No. 14 - 4928

67 . The undersigned turns finally to DOAH Case

No. 14 - 4928, wherein the Department alleges that Mr. Nobles

engaged or benefitted from the unauthorized removal, cutting, or

trimming of vegetation , contrary to section 479.106, Florida

Statutes.

68 . Inasmuch as an administrative fine is at issue, the

Department must prove the allegations by clear and convincing

evidence. S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC , 139

So. 3d 869, 873 (Fla. 2014)("[T]he clear and c onvincing evidence

standard is the requisite burden of proof in administrative

proceedings where administrative fines are sought . ").

69 . Section 479.106 provides, in relevant part, as

follows:

(1) The removal, cutting, or trimming of

trees or vegetation on public right - of - way

to make visible or to ensure future

visibility of the facing of a proposed sign

or previously permitted sign shall be

performed only with the written permission

of the department in accordance with the

provisions of this s ection.

* * *

(7) Any person engaging in removal,

cutting, or trimming of trees or vegetation

in violation of this section or benefiting

from such actions shall be subject to an

administrative penalty of up to $1,000 per

sign facing and required to mitigate for the

unauthorized removal, cutting, or trimming

in such manner and in such amount as may be

required under the rules of the department.

(Emphasis ad ded).

70 . As the foregoing language reflects , the Department was

not required to prove that Mr. Nobles (or someone at his behest)

removed the vegetation at issue; it was sufficient instead for

the Depa rtment to demonstrate, as it did , tha t the unauthorized

removal benefitted Mr. Nobles by improving the visibility of his

truck - mounted billboard . Mr. Nobles is therefore guilty of

violating section 479.106(7).

71 . As for the appropriate penalty, the undersigned agrees

that $1,000, the maxim um auth orized by statu t e, is warranted

under the circumstances.

72 . Finally, the Department contends that Mr. Nobles

should be ordered to pay mitigation costs of $8,304.25, a

figured derived from Mr. Armstrong's use of the formula

referenced in rule 14 - 10.057.

73 . The undersigned declines this invitation, for as

explained in paragraphs 41 and 42, supra , the Department failed

to adduce any non - hearsay evidence concerning the market value

of the tree s removed ÏÏ the very starting point of the mitigation

calculations. Indeed, the re cord contains nothing more than

Mr. Armstrong's hearsay testimony that he utilized price quotes

obtained over the telephone from three commercial nurseries. 16 /

See , e.g., Branker v. State , 650 So. 2d 195 , 196 (Fla. 4th DCA

1995)(explaining that when witness had no personal knowledge

concerning value of property, estimates obtained from experts

were hearsay and could not be used to establish the value for

purposes of r estitution). Such testimony, which would not be

admissible over objection in a civil action, is insufficient to

support a finding concerning the value of the removed trees.

See § 120.57(1)(c), Fla. Stat. (providing that hearsay evidence

is not sufficient in itself to support a finding unless it would

be admissible over objection in a civil action) . 17 /

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 e nter a

final order finding that the billboard identified in Not ice 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 o rder 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 dismissi ng Notice of

Violation 1352. In the event , however, the application is onc e

again denied, the Department should af ford 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 ENT ERED this 4th day of May , 201 5 , 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 .

ENDNOTES

1 / On the second day of he aring, Mr. Nobles introduced an

affidavit prepared by Erma Jean Walker, which was received in

evidence as Respondent's Exhibit 20 . Feb. ., p. 256. The

undersigned later realized, however, that Mr. Nobles had

previously introduced (during the first day of hearing) a series

of photographs under the same exhibit number . Jan . 9 Tr., p.

269. To avoid such duplication , Ms. Walker's affidavit has been

redesignated as Respondent's Exhibit 21.

2 / Although the transcript of the February 13 proceedings

comprises four volumes, the content of volumes III and IV is

identical to volumes I and II. As such, all transcript

references contained herein are to the first two volumes.

3 / The definition of "premises" was amended in 1994 to add the

requirement of contiguity. § 479.01(15), Fla. Stat. (1994)

(defining premises as "all the land areas under ownership or

lease arrangement to the sign owner which are contiguous to the

business condu cted on the land").

4 / Feb. ., p. 79. The Department employee also stated to

Mr. Nobles that the billboards "looked all right to her." Id . ,

p. 99. These statements have not been received for their truth

(i.e., that the billboards actually satisfied the on - premises

exemption), but instead to show that the statements, upon which

Mr. Nobles relied, were actually made. See Charles W. Ehrhardt,

Ehrhardt's Florida Evidence § 801.6, p p . 793 - 94 (2008 ed.)("When

words have inde pendent legal signific ance , evidence that they

were said is not hearsay. . . . Testimony that the words were

or were not spoken is offered to prove that the statements were

made, rath er than to prove their truth."); see also United

States v. Valencia , 957 F.2d 1189, 1199 (5th Cir. 1992)(holding

that statements were not hearsay because they were not offered

to prove the truth of their content, but to show that certain

conduct of the introducing party "was made in reliance on the

statements irrespective of t heir truth").

5 / Although the Department asserts that it possesses no records

concerning the disposition of the 2008 notices, see Feb. .,

p p . 184 - 85, the fact that the signs were never removed allows

for the reasonable inference that the Department abandoned its

prosecution of the notices following its inspector's examination

of the billboards.

6 / Feb. . , p. 99, ln 16 - 25.

7 / Feb. ., p . 114.

8 / Feb. ., p. 181.

9 / Feb. ., pp. 220; 229.

10 / To further complicate matters, the definition of "unzoned

commercial or industrial area" was substantially amended in

1984. Compare § 479.01(10), Fla. Stat. (1977)(defining "unzoned

commercial or industrial area" as an unzoned area "in which

there is located one or more industrial or commercial activities

generally recognized as commercial or industrial by zoning

authorities in this s tate")(emphasis added), with § 479.01(20),

Fla. Stat. (1984)(defining the same term as an area "in which

there are located three or more separate and distinct industrial

or commercial uses located within a 1,600 foot radius of each

other and generally reco gnized as commercial or industrial by

zoning authorities in this state")(emphasis added) .

Under either version, certain activities are expressly

excluded, including, inter alia, those that are not visible from

the main - traveled way. This is problematic, as the record is

silent concerning the visibility of the concrete structure (the

site of the jelly and candy manufacture) during the relevant

period.

11 / Feb. ., pp. 125 - 126.

12 / Mr. Pigott also ruled out the possibility that the 120 by 25

foot area was part of the Department's "free zone " ÏÏ the area

immediately adjacent to the edge of the interstate, which the

Department keeps clear of vegetation, loose impediments, and any

other object th at could pose a safety hazard . Jan. ., pp.

53 - 55.

13 / Jan . ., pp. 156; 232.

14 / To establish entitlement to a prescriptive easement, a

claimant must prove: 1) actual, continuous, and uninterrupted

use by the claimant or any predecessor in title for the

prescriptive period (20 years); 2) that the use was related to a

certain, limite d, and defined area of land; 3) that the use has

been either with the actual knowledge of the owner, or so open,

notorious, and visible that knowledge of the use must be imputed

to the owner; and 4) that the use has been adverse to the

owner, i.e. , "witho ut permission (express or implied) from the

owner, under some claim or right, inconsistent with the rights

of the owner, and such that, for the entire period, the owner

could have sued to prevent further use." Stackman v. Pope , 28

So. 3d 131, 133 (Fla. 5t h DCA 2010).

Although it appears that the first three prongs are

satisfied, Mr. Nobles has failed to prove that his use of the

path on the intervening parcel was without the express or

implied permission of that parcel's owner. Indeed , if any

co nclusion is to be drawn, it is that Mr. Nobles' u se of the

intervening parcel has been with the owner 's permission . As

Mr. Nobles readily admits, his access to the intervening parcel

has, at all relevant times, been gained through a gate that

features two locks (one belonging to Mr. Nobles, and the other

to the owner of the intervening parcel), the keys to which open

both locks :

Q For the last 20 years that you've been

driving around the fence, have you ever had

anybody t ell you to not access it there?

A No. They'll always come ask me could

they go there, you know like Î you know, to

look around, you know, because the land next

to me is for sale -- been for sale for a

good while.

Q And Î

A And I had Î I had a key to the gate, and

the man that had bought the land, he had a

key. But we had Î you know, we had two

locks, his licked [sic] into mine, mine

locked into his .

Feb. ., pp. 76 - 77 (emphasis added).

15 / Feb. ., p. 39, ln 5.

16 / It is of no moment that market values obtained over the

telephone were later recorded in the mitigation report. See

Harris v. Game & Fresh Water Fish Comm'n , 495 So. 2d 806, 808 - 09

(Fla. 1st DCA 1986)( "[T]he fact remains that the report would

still not fall within the [business records] exception because

the relevant information contained in the report is itself

hearsay.").

17 / This result is required notwithstanding the absence of a

hearsay objection. Scott v. Dep't of Bus. & Prof'l Reg. , 603

So. 2d 519, 520 (Fla. 1st DCA 1992).

COPIES FURNISHED:

Richard E. Shine, Esquire

Austin M. Hensel, Esquire

Department of Transportation

605 Suwan n ee Street, Mail Stop 58

Talla hassee, Florida 32399

(eServed)

Sherry D. Walker, Esquire

1804 Miccosukee Commons Drive, Suite 206

Tallahassee, Florida 32308

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwan n e e Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

Trish Parsons, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwan n ee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building

605 Suwan n ee Street, Mail Stop 57

Tallahassee, Florida 32399 - 0450

(eServed)

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.