STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMUNITY SIGN SERVICE, INC., AND LEON FRANKLIN,

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 07-1850

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RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Tallahassee, Florida, on September 11, 2007. The appearances were as follows:

APPEARANCES

For Petitioner: Leon Franklin, pro se

336 Mills Bayou Drive Milton, Florida 32583

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner's timely filed a Petition challenging the

voiding of an outdoor advertising permit and whether the Department properly denied a resulting application for issuance of a new permit for the subject outdoor advertising structure.

PRELIMINARY STATEMENT

This cause arose with the filing of a request for formal administrative hearing by the Petitioner, Leon Franklin, in his individual capacity and as President and sole stockholder of Community Sign Service, Incorporated. He sought to challenge a notice of outdoor advertising permit voiding, issued

December 14, 2006, by the Department of Transportation (Department). The request for formal proceeding was filed on February 21, 2007. On April 9, 2007, the Petitioner submitted an Amended Petition challenging both the December 14, 2006, voiding of the permit and the Department's denial, on February 15, 2007, of the new permit application. The matter

was referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge for formal proceeding and hearing. The Petition, in due course, was scheduled for hearing.

The cause came on for hearing as noticed on September 11, 2007, before the undersigned. The Department called three witnesses at the hearing, Billy Wayne Strickland, Lisa Jane Adams, and Lynn Holschuh. The Department also presented seven exhibits, which were admitted into evidence. The Petitioner,

Leon Franklin, testified on his own behalf and on behalf of his corporation, Community Sign Services, Inc. The record was left open by agreement of the parties and Order of the undersigned, until September 20, 2007, for the submission of an additional photograph by the Petitioner. That photograph has not been submitted. A Transcript of the proceedings was thereafter filed, and an extended briefing schedule was authorized for proposed recommended orders. The Proposed Recommended Orders have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Community Sign Service, Inc. (Community) received permits numbered 54510 and 54511 from the Department on February 8, 2006, authorizing erection of a two-sided billboard in Lanark Village along U.S. Highway 98 in Franklin County, Florida. That permit included a statement that a completed outdoor advertising sign must be erected within 270 days of issuance of the permit or else the permit would become void.

2. The Petitioner, Community, erected a sign structure consisting of a "monopole" structure at the permitted location. It has two rectangular "wind frames" surrounded by a catwalk on top. The Petitioner, Mr. Franklin, intended attaching a vinyl wrap to the structure with the advertising copy or an "available for rent" message, but that had not been accomplished as of December 4, 2006. On December 4, 2006, the Department, through

   an inspection by a Department contractor, inspected the site and determined that the sign had not been completed because the face and message were not on it. Therefore, on December 14, 2006, the Department issued a notice advising the Petitioners that the permit was void, the sign illegal, and it needed to be removed because the completed outdoor advertising sign had not been erected at the site within 270 days of the date of permit issuance. The notice to the Petitioners notified them that they could elect to challenge the action by requesting an administrative proceeding within 30 days of the date of the notice, in accordance with the notice of appeal rights on the reverse side of the notice form. The reverse side of the form stated that any petition must be filed with the clerk of agency proceedings by 5:00 p.m. no later than 30 days after the Petitioners received the notice.

3. Several other notices of violations for failure to post Department-issued "tags" on signs were issued to Mr. Franklin. The Department tags were required to be posted on signs within

   30 days of their issuance, and on November 16, 2006,

   
   

   Mr. Franklin received two notices that outdoor advertising permits were void, for failure to display advertising copy on two sign structures in Gulf County, Florida.

4. Mr. Franklin met with Ms. Holschuh of the Department in late 2006 or early 2007, to discuss the notices that he had

   received from the Department and to show her several photographs, taken on his digital camera, of several signs. One of the photographs he alleged showed the Franklin County sign with a "for rent" sign or message, with a phone number at the base of one of the wind frames on the sign structure. This is referred to in the industry as "the apron." The camera did not display the date of the photograph in the picture, but

   Mr. Franklin stated that he took the picture on December 20, 2006. Ms. Holschuh asked him to provide her with a copy of the photograph but he did not return with a copy because he could not get one to print from his camera with a date on it.

5. Mr. Franklin was given until September 20, 2007, after the hearing, to present the photo as a late-filed exhibit, with the Department accorded an opportunity to submit a counter exhibit, but the photograph exhibit was never filed. In any event, the condition which resulted in the void notice was observed by the contractor inspector on December 4, 2006, and the notice of void permit was issued on December 14, 2006.

6. After he was unable to resolve the void permit issue with the Department, Mr. Franklin submitted a new application under his own name, for a permit for the sign structure at issue, on February 15, 2007. He submitted it in his own name because Section 479.07(5)(a), Florida Statutes, provides that an entity whose permit has been voided may not be eligible for a

   new permit at the same location for 270 days after the date on which the permit became void. Therefore, Mr. Franklin submitted the application for a new permit in his own name so it would not be the same entity applying.

7. The application for advertising permits for the same location in Franklin County was denied by the Department on the same day, with an explanation that U.S. 98 in Franklin County had recently been declared a "scenic byway" and under the law pertaining to that status, no new permits could be issued. On February 21, 2007, Mr. Franklin submitted a letter to the Department's clerk challenging the voiding of the original permit and stating "this sign had a phone number and for rent sign posted to the apron as there was no sign face to attach the sign to." An Amended Petition challenging both the voiding of the prior permit and the denial of the application for a new permit was submitted to the Department on April 9, 2007.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

9. The Department has jurisdiction to regulate outdoor advertising and to issue permits for outdoor advertising signs located along interstate and federal aid primary highways pursuant to Chapter 479, Florida Statutes, and Florida

   Administrative Code Chapter 14-10. The relevant sign location was within 660 feet of U.S. highway 98, a federal aid highway, and therefore required a state permit in accordance with Section 479.07(1), Florida Statutes.

   Denial of February 2007 Application

   
   

10. Florida Administrative Code Rule 14-10.004(5)

    
    

    provides:

    
    

    When a controlled road or any portion of a controlled road is designated as a scenic highway or scenic byway pursuant to Section 335.093, Florida Statutes, new permits will not be issued for outdoor advertising signs visible from a portion of the highway designated as a scenic highway or byway.

    
    

11. Section 479.02, Florida Statutes, requires the Department to administer and enforce the provisions of the Highway Beautification Act of 1965. See 23 U.S.C. Section 131(2), which provides in pertinent part:

    If a state has 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 . . .

    
    

    Subsection (c) authorizes limited signage for tourists directional signs, signs to sale or lease property, on premise signs, landmark signs, and signs for free coffee.

12. The Petitioners did not present evidence or testimony suggesting that the February 2007 application was improperly denied. The Department established that U.S. 98 was designated a scenic byway in November 2006, and therefore, the application submitted in February 2007, was properly denied under the above- referenced legal authority.

    Challenge to Permit Voiding-Equitable Tolling

    
    

13. The Petitioners challenge the Department's

    
    

    December 14, 2006, Notice voiding the outdoor advertising permit for the subject sign. That notice clearly informed the Petitioner that he had 30 days from the date of the notice to request an administrative hearing. In accordance with Section 120.569(2)(c), Florida Statutes, a petition "shall be dismissed if . . . it has been untimely filed." The failure to timely file a petition, where a clear point of entry has been afforded, constitutes a waiver of any rights assertable by such a Petition. See Whitting v. Department of Law Enforcement, 849 So. 2d 1149, 1151 (Fla. 5th DCA 2003).

14. Excusable neglect is not recognized in an administrative proceedings to prevent the dismissal of an untimely petition. Cann v. Department of Children and Family Services, 813 So. 2d 237, 238-239 (Fla. 2nd DCA 2002).

15. Section 120.569(2)(c), Florida Statutes, provides equitable tolling as a defense to the untimely filing of a

    petition. The Doctrine of Equitable Tolling only applies, however, "when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights in the wrong forum." Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). The fact that the Petitioners were negotiating a resolution in good faith with the Department representatives did not serve to toll the time allowed for filing of an administrative petition or appeal. In Dickerson v. Rose, 398 So. 2d 922 (Fla. 1st DCA 1981), the court determined that informal oral discussions between an agency and an aggrieved party would not serve to override the clear intent and effect of a letter providing administrative appeal rights. In this case, the Department witnesses testified that Mr. Franklin had several conversations with them, and while they were open to considering any additional evidence, they never stated or implied that the 30 days to file an administrative appeal or petition was extended. The Petitioners have not established that they were misled or lulled into inaction or was preventing from timely filing his petition. The Petitioners, through inaction within the time period provided simply waived the opportunity to challenge the voiding of the permit.

16. Even if the Petition had been timely filed, the Petitioners did not establish that the Department's action was

    improper in voiding the permit. Section 479.07(5)(a), Florida Statutes, provides in pertinent part:

    If the permitee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void, and the Department may not issue a new permit to that permitee for the same location for 270 days after the date on which the permit became void.

    
    

17. Florida Administrative Code Rule 14.10.0011(1)(c) provides:

    'Completed sign' for purposes of Section 479.07(5)(a), Florida Statutes, means an erected sign structure with attached facing, and a posted message.

    
    

18. The permit granted the Petitioner on February 8, 2006, put them on clear notice that the permits would become void if the sign was not completed in 270 days. On November 16, 2006, the Petitioners received notices voiding three signs in Gulf County for failure to complete a sign with a posted message. The Petitioners were therefore on clear and actual notice of how strictly and in what way the Department applied the rule

referenced above. They had an opportunity to react by attaching facing and a message to the subject Franklin County sign before it was inspected and before the time for voidance of it arrived. The Petitioners took no such action, however, and the permits were, in due course, properly voided for failing to have an

attached facing, as well as a posted message, within 270 days of the permit for the sign being issued.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida Department of Transportation denying the Petitioner's applications for state outdoor advertising permits, based on the scenic highway designation referenced hereinabove, and dismissing the challenge to the voiding of the permit as untimely filed and directing consequent removal of the subject sign in accordance with the provisions of Section 479.105, Florida Statutes (2006).

DONE AND ENTERED this 10th day of December, 2007, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings this 10th day of December, 2007.

COPIES FURNISHED:

Leon Franklin

336 Mills Bayou Drive Milton, Florida 32583

Susan Schwartz, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

James C. Myers

Clerk of Agency Proceedings Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Interim Secretary Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 57

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

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.

Docket for Case No: 07-001850

Orders for Case No: 07-001850