15-004992 John Daddono vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, April 27, 2016.

Summary: Petitioner's application for an outdoor advertising sign located adjacent to a designated scenic highway should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN DADDONO,

Petitioner,

vs. Case No. 15 - 4992

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 23, 2016, by video teleconference at sites in

Tallahassee, Florida and West Palm Beach, Florida, before

E. Gary Early, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: James D. Ryan, Esquire

Ryan & Ryan Attorneys, P.A.

636 U.S. Highway 1 , Suite 110

North Palm Beach, Florida 33408

For Respondent: Austin M. Hensel, Esquire

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

The issue in this case is whether PetitionerÓs Outdoor

Advertising Permit Applications should be denied due to

application deficiencies, and because the sign s are located

adjacent to a designated scenic highway .

PRELIMINARY STATEMENT

On December 18, 2014 , t he Florida Department of

Transportation (Department) issued a Notice of Denied Outdoor

Advertising Permit Application for application Nos. 61203 and

61204 to Petitioner . The Department alleged that the outdoor

advertising sign permit application s should be denied because of

incorrect information in the application s in violation of

section 479.08, Florida Statutes, and because the proposed sign s

are located adjacent to a designated scenic highway, which is

not allowed pursuant to Florida Administra tive Code R ule 14 -

10.004(4)(c) .

On February 12, 2015, Petitioner requested an informal

hearing to contest the denial of the application . Although tha t

date is well beyond the 30 days allotted for the filing of a

petition, the Department did not allege t hat the petition was

not timely filed.

On August 28, 2015, t he Department entered an Order

Cancelling Hearing, which was based on the inability of the

parties to agree to material facts. As a result, the Department

determined that the case should be sent to the Division of

Administrative Hearings (DOAH). Thereafter, on September 4,

2015, the request for hearing was referred to DOAH .

The final hearing was scheduled for December 16, 2015. It

was convened and, due to PetitionerÓs illness, continued and

re scheduled for February 23, 2016.

The case was transferred to the undersigned on February 18,

2016, and the final hearing was conducted as scheduled.

The parties filed a Joint Pre - hearing Stipulation in which

they identified stipulated facts for which no further proof

would be necessary. The stipulated facts have been accepted and

considered in the preparation of this Recommended Order.

At the final hearing, Joint Exhibits 1 through 27 were

received in evidence . The parties stipulated that the var ious

governmental records, applications , and notices regarding the

sign s at issue are business records of the Department, and

therefore subject to the business records exception to the

hearsay rule .

Petitioner testified on his own behalf, and presented the

testimony of Eric Carl Fischer, a director of Town and Country

Leasing of Sebastian (ÐTown & Country RealtyÑ) , and Daniel E.

Taylor, a licensed real estate broker. Respondent presented the

testimony of Mark Johnson, RespondentÓs regional o ut door

a dvertising i nspector , and Kenneth Pye, RespondentÓs o utdoor

a dvertising f ield o perations s upervisor. RespondentÓs Exhibit 1

was received in evidence without objection.

A one - volume Transcript of the proceedings was filed on

March 1, 2016 . Respondent timely filed its P roposed R ecommended

O rder . Petitioner filed a motion for extension of time to file

his p roposed r ecommended o rder, based on his lack of knowledge

that the T ranscript had been filed. The motion was granted, and

Petitioner was given until April 21, 2016 , to file his p roposed

r ecommended o rder. Petitioner filed his Proposed Recommended

Order by the deadline, and both have been duly considered in the

preparation of this Recommended Order.

All citations are to the 201 5 Florida Statutes except as

otherwise indicated.

FINDINGS OF FACT

1. The Department of Transportation regulates outdoor

advertising signs located in proximity to the state highway

system, interstate highway system, and federal - aid primary

highway system .

2 . U.S. Highway 1 is a federal - aid primary highway that

runs in a generally north/south direction along the east coast

of Florida .

3 . In April l995, the Department issued outdoor

advertising sign permit tag number BK459 to Town & Country

Realty for a n outdoor advertising sign (the Ðoriginal signÑ).

The original sign was constructed adjacent to and on the west

side of U.S. Highway 1 in Sebastian, Florida (the ÐpropertyÑ) .

4 . Records maintained by the Department during the period

of the original signÓs existence, i.e., t he DepartmentÓs outdoor

advertising database from July 31, 2002, indicate that the

original sign was located at U.S. Highway 1 milepost 18.496.

That evidence, created contemporaneously with the signÓs

existence, a nd before any controversy regarding the sign arose,

is accepted as the most persuasive evidence of the precise

location of the original sign.

5 . Mr. Pye testified that outdoor advertising sign permits

are issued for a specific location , rather than for any location

on a parcel of property. Given the precise spacing requirements

for signs ( see , e.g. , section 479.07(9) and section 479.11 ), and

the permitting of signs to the thousandth s of a mile, Mr. PyeÓs

testimony is accepted.

6 . The original sign was located against a backdrop of

vegetation. The original sign was single - sided with a north -

facing sign face . As such, the original sign could normally be

seen only from vehicles traveling south bound on U.S. Highway 1.

7 . On June 13, 2000, U.S. Highway 1 , from milepost 14.267

to milepost 22.269 was designated as the Indian River Lagoon

State Scenic Highway. The scenic highway designation included

the stretch of U.S. Highway 1 on which the property fronts.

8 . On March 18, 2004, Henry Fischer & Sons, Inc. /Town &

Country Real t y sold the property and the original sign to

Petitioner.

9 . Daniel Taylor, a licensed real estate broker, worked on

the transaction that led to PetitionerÓs ownership of the

property. He indicated that the property was des irable because

it was clean, cleared, and demucked, and because it had the

permitted original sign as an attractive asset , since the sign

provided an income stream that could be used to pay property

taxes.

10 . Eric Fischer, who was a director of Town & Country

Realty, testified that, when the property was sold to

Petitioner, the original sign was intended Ðto go with the

property.Ñ

11 . Upon the sale of the property and the original sign,

Petitioner believed that Town & Country Realty would notify the

state of the sale of the sign , and that he would thereafter be

contacted by the state .

12 . Mr. Taylor testified that he and Petitioner called the

Department and determined that Petitioner Ð could just step into

the Fischer's shoes.Ñ

13 . Based on the testimony of Petitioner and Mr. Taylor,

Petitioner knew, or should have known, that the Department had

regulatory oversight over the sign.

14 . A n Outdoor Advertising Permit Transfer Request form is

required to be submitted to the Departme nt in order to transfer

a sign permit from one person to another . No Outdoor

Advertising Permit Transfer Request form was submitted for

permit tag number BK459 .

15 . Petitioner was never contacted by the state regarding

the sale of the sign. Nonethele ss, Petitioner continued to

lease the sign and, as detailed herein, to replace and move the

sign after the hurricanes of 2004.

16 . In September and October 2004, Hurricanes Frances and

Jeanne struck Sebastian, Florida, very badly damaging the

original sign. The wooden supports were flattened and no longer

usable , and the sign was Ðpretty demolished.Ñ

17 . Petitioner testified that he was told by an official

of Indian River County to relocate the original sign to keep it

from proximity of trees that co uld, in the event of a recurrence

of the 2004 storms, topple and destroy the sign. The testimony ,

which was intended to prove the truth of the matter asserted,

i.e., that Petitioner was directed by a governmental

representative to relocate the sign, was u ncorroborated by

evidence that would be admissible over objection in a civil

trial.

18 . Petitioner hired a person to rebuild a sign on the

property . When the sign was rebuilt, it was not replaced at its

original location at milepost 18. 496 . Rather, the Ð rebuilt

signÑ 1/ was moved to the cleared center of the property at

milepost 18.535 .

19 . Instead of a single - faced sign normally visible to

northbound traffic, the rebuilt sign was a double - faced sign,

with sides facing north and south. As such, the rebuilt sign

could be seen by vehicles traveling U.S. Highway 1 in either

direction.

2 0 . The original sign had four equally - spaced square

support posts. The rebuilt sign has three equally - spaced round,

and mor e substantial, support po les .

2 1 . The rebuilt sign has 11 horizontal stringers on each

face , with each stringer secured to the three support posts.

The stringers a re uniform in appearance . The photographs of the

rebuilt sign clearly show all of the stringers on one side, and

some of the stringers on the other. The stringers show no

evidence of having undergone storm damage , or of h aving been

secured to support posts at different points along the

stringers . The preponderance of the evidence supports a finding

that the stringers were -- as were the posts -- new , stronger,

intact materials when the rebuilt sign was constructed , and were

not materials salvaged from the remains of the original sign.

2 2 . The original plywood facing on the original sign was

replaced with vinyl facings on the rebuilt sign .

2 3 . As a result of the foregoing, a preponderance of the

evidence indicates that the rebuilt sign was a new sign erected

of entirely new materials, a nd was not established as a result

of maintenance or repair of the original sign .

2 4 . After the March 18, 20 0 4 , sale of the property and the

post - hurricane erection of the rebuilt sign , Town & Country

Realty continued to receive renewal billing from the Department

for the original sign , along with several other signs owned by

Town & Country Realty . Town & Country Realty , having sold the

property on which the original sign was located and having no

apparent interest in maintaining its other signs, did not pay

the renewal bills.

2 5 . On January 31, 2005 , the Department issued a Notice of

Violation and Order to Show Cause Non - Payment (ÐNOVÑ) to Town &

Country Realty . The NOV p rovided a grace period of 30 days

within which the license and permits could be renewed, subject

to a penalty. Town & Country Realty did not renew the license

or permits.

2 6 . On March 7, 2005, the Department issued a Final Notice

of Sign Removal, noting that Town & Country Realty had not made

payment for renewal or request an administrative hearing to

contest the NOV. As a result, Town & Country Realty was given

the option of either petition ing for reinstatement of the

license and permits, or remov ing the signs, including the sign

bearing permit tag number BK459 . Failure to exercise one of the

options within 90 days was to result in the removal and disposal

of the sign by the Department.

2 7 . On March 2 2 , 2005, a s a result of the continued

requests for payment , Town & Country Realty submitted an Outdoor

Advertising Permit Cancellation Certification form

(ÐCancellation CertificationÑ) to the Department for permit tag

number BK459 . The Cancellation Certification was received by

the Department on March 24, 2005.

2 8 . The Cancellation Certification was signed by Carl

Fischer, p resident of the permit holder, Town & Country Realty .

Mr. Fischer indicated that it was the permit holderÓs intent

Ðthat the above - referenced Permit(s) be cancelled , Ñ and that

Ðall entities wi th a right to advertise on the referenced sign

have been notified of the permit cancellation.Ñ

29 . In the ÐDate Sign RemovedÑ field of the form ,

Mr. Fisher wrote Ðsee below.Ñ In the bottom margin of the form,

Mr. Fischer noted that the sign had been destroyed by one of the

2004 hurricanes, and that Ðnew owner rebuilt sign and I removed

BK459 tag and enclosed it.Ñ The Cancellation Certification did

not provide any information regarding the rebuilt sign or

whether i t was a sign that required a permit from the

Department , 2 / nor did it provide the name, address, or other

identifying information regarding the Ðnew owner.Ñ

3 0 . It was not clear when Mr. Fischer removed permit tag

number BK459 , but it was nonetheless rem oved and returned to the

Department with the Cancellation Certification.

3 1 . The Cancellation Certification was not intended by

Mr. Fischer to affect PetitionerÓs rights or interest in the

rebuilt sign, but was a means of stopping renewal bills from

being sent to Town & Country Realty.

3 2 . A Cancellation Certification may be conditioned upon

issuance of a new sign permit, provided the C ancellation

C ertification is submitted along with an outdoor advertising

permit application.

3 3 . The Cancellation Certification gave no indication that

permit tag number BK459 was being conditionally canceled as a

requirement for issuance of a new permit , and was not

accompanied by an outdoor advertising permit application .

3 4 . On March 24, 2005, permit tag number BK459 was

cancelled.

3 5 . From 2005 until June 2014, the rebuilt sign remained

in place without inquiry from the Department , during which time

Petitioner continued to lease and receive income from the sign .

No transfer of or application for a sign permit for the rebuilt

sign was filed, and no payment of annual fees was made.

3 6 . No explanation was provided as to why the March 7,

2005, Final Notice of Sign Removal was not enforced, or why the

rebuilt sign, which ha s at all times been clearly visible from

U.S. Highway 1, w as allowed to remain in place for nearly a

decade despite having no affixed permit tag .

3 7 . On or about May 28, 2014, Mr. Johnson, who was on

patrol in the area, noticed that the advertising on the rebuilt

sign had been changed. Th e change caught his attention, so he

reviewed the DepartmentÓs outdoor advertising sign database to

determine whether the sign was permitted. H e confirmed that the

rebuilt sign was not permitted.

3 8 . On June 5, 201 4 , Mr. Johnson affixed a Ð30 - day green

noticeÑ to the rebuilt sign, which provided notice of the

DepartmentÓs determination that the sign was illegal, and was to

be removed within 30 days. Failure to remove the sign was to

result in the removal of the sign by the Department.

39 . On June 9, 2014, the Department issued a Notice of

Violation - Illegally Erected Sign (NOV) to Petitioner for the

rebuilt s ign.

4 0 . Petitioner did not submit a hearing request regarding

the N OV . Rather, Petitioner called the telephone number that

was listed on the NOV. He spoke with someone at the Department,

though he could not remember who he spoke with. Petitioner was

advised to file an application for the sign , a remedy that is

described i n the NOV .

4 1 . On December 1 , 2014, Petitioner submitted Outdoor

Advertising Permit Application No s . 61203 and 61204 for the

northward and southward faces of the Current Sign at m ile p ost

18.535. Petitioner subsequently submitted additional

information, including local government approval, in support of

the application.

4 2 . On December 18, 2014, the Department issued a Notice

of D enied Outdoor Advertising Permit Application for application

Nos. 61203 and 61204 (Ðnotice of denialÑ) to Petitioner . The

ba ses for the notice of denial were that the propertyÓs tax

identification numbers submitted in vario u s parts of the

application did not match, thus constituting Ðincorrect

informationÑ in the application, and that the rebuilt sign is

located on a designated scenic highway, thus prohibiting

issuance of the permit.

4 3 . In the P re - hearing S tipulation filed by the parties,

the Department, though referencing Ðincorrect informationÑ as a

basis for the December 18, 2014 , notice of denial, concluded its

statement of position by stating that Ð[i]n sum, the Department

properly denied [PetitionerÓs application] as the sign is

located on a scenic highway.Ñ That focus on th e scenic highway

issue in the P re - hearing S tipulation could, of itself,

c onstitute a waiver and elimination of other issues , including

that of incorrect information . See Palm Beach Polo Holdings,

Inc. v. Broward Marine, Inc. , 174 So. 3d 1037 (Fla. 4th DCA

2015). However, looking beyond the P re - hearing S tipulation, t he

issue o f incorrect information was not the subject of testimony

at the final hearing, finds no substantial support in the

documentary evidence, and made no appearance in the DepartmentÓs

Proposed Recommended Order. The record in this proceeding does

not support a finding that Petitioner provided Ðincorrect

information Ñ in his application, or that such Ðincorrect

i n formation Ñ supports a denial of the application.

4 4 . On February 12, 2015, Petitioner filed a request for

an informal administrative hearing with t he Department to

contest the notice of denial.

4 5 . The request for hearing included affidavits from

Petitioner and Henry A. Fischer, a vice - president of Town &

Country Realty , each of which provided that Town & Country

Realty Ð submitted to the governmental authorities included but

not limited to the Florida Department of Transportation notice

of the transfer of the prop erty and the sign permit to

Mr. Daddano as well as his correct mailing address of

15 Lakeside Lane, N. Barrington, IL 60010.Ñ It is not know n

whether the N. Barrington, I llinois , address was that of

Mr. Fischer or that of Petitioner. Regardless, no such notice

of transfer, or any other document bearing the referenced

address , was introduced in evidence or discussed at the fina l

hearing. The preponderance of the evidence indicates that the

March 22, 2005 , Outdoor Advertising Permit Cancellation

Certification , with the notation described in paragraph 30

above, was the only notice provided to the D epartment regarding

the disposit ion of permit tag number BK459 .

4 6 . By June 4 , 2015, the a dvertising copy that caught

Mr. JohnsonÓs attention had been removed and replaced with a

Ð This Sign For RentÑ covering.

4 7 . By no later than November 17, 2015, well a fter the

Department issued the notice of denial, and without any other

form of approval or authorization from the Department,

Petitioner had the rebuilt sign ÐpivotedÑ in roughly its

existing location, so that it is now parallel to U.S. Highway 1.

As such, only the side of the sign facing U.S. Highway 1 is

visible from the highway , making it a Ðone - way readerÑ as

opposed to a two - sided sign. Nonetheless, unlike the original

one - sided sign , which was perpendicular to the highway against a

backdrop of vegetation , the pivoted rebuilt sign can be seen by

traffic traveling in either direction on U.S. Highway 1. 3 /

CONCLUSIONS OF LAW

4 8 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this

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

Statutes.

49 . Section 479.02(1) provides that it is the duty of the

Department to Ð[a]dmi nister and enforce [chapter 479], the 1972

agreement between the state and the United States Department of

Transportation, Title 23 of the United States Code, and federal

regulations . Ñ As such, the Department has the authority to

regulate and to issue per mits for outdoor advertising signs

along state, interstate, and federal - aid primary highways

pursuant to chapter 479 .

5 0 . Section 479.07 provides, in pertinent part, that:

(1) Except as provided in ss. 479.105(1)

and 479.16, a person may not erect, operate,

use, or maintain, or cause to be erected,

operated, used, or maintained, any sign

. . . on any portion of the interstate or

federal - aid primary highway system without

first obtaining a permit for the sign from

the department and paying the ann ual fee as

provided in this section. As used in this

section, the term Ðon any portion of the

State Highway System, interstate highway

system, or federal - aid primary systemÑ means

a sign located within the controlled area

which is visible from any portion of the

main - traveled way of such system.

* * *

(6) A permit is valid only for the location

specified in the permit. Valid permits may

be transferred from one sign owner to

another upon written acknowledgment from the

current permittee and submittal of a

transfer fee . . . for each permit to be

transferred.

5 1 . Section 479.105 provides , in pertinent part, that:

(1) A sign that is located . . . 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 wi thout the permit required by

s. 479.07(1) having been issued by the

departm ent, is declared to be a public

nuisance and a private nuisance and shall be

removed as provided in this section.

5 2 . Petitioner owns both the rebuilt sign and the property

on which it was erected. As the permit applicant, Petitioner is

a Ðs pecifically named person [] whose substantial interests are

being determined in the proceeding ,Ñ pursuant to section

120.52(13)(a), an d thus has standing in this proceeding.

Maverick Media Gr p . v. DepÓt of Transp. , 791 So. 2d 491, 492 - 493

(Fla. 1st DCA 2001).

5 3 . As the party seeking to demonstrate his qualification

for licensure, Petitioner bears the burden of proving, by a

preponderance of the evidence, that he satisfied all of the

requirements for issuance of an outdoor advertising sign permit ,

including issues regarding reinstatement of a license, and was

entitled to receive the permit. Dep't of Banking & Fin., Div.

of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996); Fla. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d

778, 788 (Fla. 1st DCA 1981). ÐFindings of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .Ñ § 120.57(1)(j), Fla. Stat.

5 4 . T he Department has the burden to produce competent

substantial evidence to support the basis for the denial.

Comprehensive Med. Access, Inc. v. Off. of Ins. Reg . ,

983 So. 2d 45, 46 (Fla. 1st DCA 2008) . Nonetheless, Ðwhile the

burden of producing evidenc e may shift between the parties in an

application dispute proceeding, the burden of persuasion remains

upon the applicant to prove [ ] entitlement to the license .Ñ

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d

at 934.

Status of the Rebuilt Sign

5 5 . P ermit tag number BK459 was canceled in 2005 by the

permit holder, Town & Country Realty. That cancelation has not

been directly challenged in this or any other proceeding.

5 6 . I f the permit for the original sign had been

transferred to Petitioner, Petitioner would have been entitled

to rebuild the sign after its destruction in 2004, as long as it

was re placed at its original location.

5 7 . Upon its destruction in 2004 , t he original sign was

not rebuilt at its previous location at milepost 18.496 .

Furthermore, the sign was structurally altered from its previous

single - sided configuration . Thus , t he preponderance of the

evidence demonstrates that Petitioner constructed an entirely

new , structurally different, double - sided sign at milepost

18. 535 .

5 8 . The original sign was removed, and the rebuilt sign

constructed, well before the C ancellation C ertification for

permit tag number BK459 was filed, and the tag returned to the

Department. Even if permit tag number BK459 had been pulled

from the wreckage of the original sign and affixed to the

rebuilt sign, that act would not have constituted authoriz ation

for the rebuilt sign , as the construction of the rebuilt sign

was not a repair or replacement of a conforming sign in its

original location.

59 . The preponderance of the evidence demonstrates that

the rebuilt sign is a new outdoor advertising sign. Thus, the

permi t ting standards applicable to new sign construction are

applicable to the rebuilt sign.

Scenic Highway Standards

6 0 . The Department is required to administer and enforce

title 23 of the United States Code. § 479.02, Fla. Stat. In

pertinent part, 23 U.S.C. § 131(s) provides that:

If a State has a scenic byway program, the

State may not allow the erection along any

highway on the Interstate System or Federal -

aid primary system which before, on, or

after the effective date of this subsection,

is designated as a scenic byway under such

program of any sign, display, or device

which is not in conformance with subsection

(c) of this section.

6 1 . Rule 14 - 10.004(12)(c) provides that:

When a controlled road, or any portion of a

controlled road, is designated as a scenic

highway or scenic byway pursu ant to Section

335.093, F.S., new permits will not be

issued for signs visible from the portion of

the highway designated as a scenic highway

or byway.

6 2 . The property on which the rebuilt sign is located

fronts a portion of U.S. Highway 1 designated a s the Indian

River Lagoon State Scenic Highway. The rebuilt sign was erected

after the June 2000 designation date. Thus, the permits for the

rebuilt sign may not be issued.

Reinstatement Due to Error

6 3 . Petitioner argues that permit tag number BK459 was

canceled as a result of an error in the process of transferring

the permit by Town & Country Realty, and the failure of the

Department to discern Town & Country Realty Ós true intent behind

its March 24, 2005 , filing of the Cancellation Certification.

Thus, Petitioner argues that he is entitled to avail himself of

the relief authorized by section 479.07(8)(b), which provides

that:

if at any time before removal of the sign ,

the permittee demonstrates that a goo d faith

error on the part of the permittee resulted

in cancellation or nonrenewal of the permit,

the department may reinstate the permit if:

1. The permit reinstatement fee of up to

$300 based on the size of the sign is paid;

2. All other permit renewal and delinquent

permit fees due as of the reinstatement date

are paid; and

3. The permittee reimburses the department

for all actual costs resulting from the

permit cancellation or nonrenewal.

(emphasis added) .

6 4 . Rule 14 - 10.004 01 ( 4 ), provides that :

Pursuant to Section 479.07(8)(b), F.S., a

petition for reinstatement of permits

canceled, or not renewed, in error shall be

submitted to the State Outdoor Advertising

License and Pe r mit Office. The petition

must be in writing, list the affe cted

permit(s), and shall certify that:

(a) The permit was canceled, or not

renewed, in error by the permittee;

(b) The permit tag for the canceled or

expired permit was returned to the

Department or otherwise accounted for;

(c) The sign has not been disassembled; and

(d) The local government has not declared

the sign illegal or taken any other action

to have it removed.

If the Reinstatement Petition is denied by

the Department, a new permit may be issued

for a sign only if th e sign meets all

current permitting requirements. The

reinstatement fee is $ 3 00.00 per permitted

sign .

6 5 . The cancellation of permit tag number BK459 came well

after the destruction and removal of the original sign . The

failure to rebuild the original sign to its existing design and

location , and the erection of a new, rebuilt sign, took permit

tag number BK459 out of the ambit of section 479.07(8)(b) and

r ule 14 - 10.00401(4) .

6 6 . Since the original sign was removed, and since the

rebuilt sign is , under the statutes and rules of the Department,

a new ou tdoor advertising sign, permit tag number BK459 may not

be renewed as a result of its allegedly erroneous cancellation .

Permit ting as a Nonconforming Sign

6 7 . Despite th e determination that unpermitted outdoor

advertising sign s constitute a public nuisance, as established

in section 479. 105 (1), section 479.105(1)(c) provides, in

pertinent part, that:

However, the department may issue a permit

for a sign, as a conforming or nonconforming

sign , if the sign owner demonstrates to the

department one of the following:

* * *

2. If the sign does not meet the current

requirements of this chapter for a sign

permit and has never been exempt from the

requirement that a permit be obtained, the

sign owner may receive a permit as a

nonconforming sign if the department

determines that the sign is not located on

state right - of - way and is not a safety

hazard, and if the sign owner pays 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, and attaches to the

permit application package documentation

that demonstrates that:

a. The sign has been unpermitted,

structurally unchanged, and continuously

main tained at the same location for 7 years

or more;

b. During the initial 7 years in which the

sign has been subject to the jurisdiction of

the department, the sign would have met the

criteria established in this chapter which

were in effect at that time fo r issuance of

a permit; and

c. The department has not initiated a

notice of violation or taken other action to

remove the sign during the initial 7 - year

period in which the sign has been subject to

the jurisdiction of the department.

6 8 . T he rebuilt sign was erected as a new sign after the

June 2000 scenic highway designation , and did not meet the

criteria established at that time for issuance of a permit .

Furthermore, the more recent re configuration of the sign from

being perpendicular to U.S. High way 1 to being parallel to

U.S. Highway 1 is a structural change that provides an

additional and independent basis for the inapplicability of

section 479.105(1)(c) .

69 . Based on the foregoing, the rebuilt sign does not

qualify for permitting as a nonconforming sign pursuant to

section 479.105(1)(c) .

Estoppel

7 0 . The Department, in its Proposed Recommended Order, has

provided an analysis of the doctrine of estoppel as applied to

the facts of this c ase. However, the issue of whether the

D epartment should be estopped from denying PetitionerÓs outdoor

advertising sign permit applications was not identified as an

issue by Petitioner in the Pre - hearing Stipulation, either in

his statement of position or as an issue of fact or law that

remained to be litigated, and was not addressed in PetitionerÓs

Proposed Recommended Order. Thus, the issue is not before this

tribunal for disposition.

RECO MMENDATION

U pon consideration of the above Findings of Fact and

Conclusions of L aw, it is RECOMMENDED that the Florida

Department of Transportation enter a final order denying Outdoor

Advertising Permit Application Nos. 61203 and 61204 .

DONE AND ENTERED this 27th day of April , 201 6 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 27th day of April , 2016 .

ENDNOTES

1 / Each face of the rebuilt sign is considered to be a sign

requiring a separate permit. Though the rebuilt sign includes

two sign faces, the Ðrebuilt signÑ will be referred to in the

singular.

2 / Not all signs fall within the DepartmentÓs regulatory

jurisdiction. For example, s igns that are not visible to a

controlled roadway , and s igns that are considered Ð on premise Ñ

signs do not require permits . Other exempt signs are listed in

section 479.16.

3 / The ÐMulliganÓs Beach HouseÑ advertising copy that drew

Mr. JohnsonÓs attention in May 2014 was removed at some time

between August 5, 2014 , and June 4, 2015. As of June 4, 2015,

the rebuilt sign bore a ÐThis Sign for RentÑ covering. Despite

the fact tha t the sign remains unpermitted, b y November 17,

2015, during the pendency of this litigation, the sign was used

to support advertising for ÐRevolutionary Disc Herniation

Treatment.Ñ

COPIES FURNISHED :

Austin M. Hensel, Esquire

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

James D. Ryan, Esquire

Ryan & Ryan Attorneys, P.A.

636 U . S . Highway One , Suite 110

North Palm Beach, Florida 33408

(eServed)

Andrea Shulthiess , Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building

Mail Station 57

605 Suwannee Street

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.