STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This case was heard, pursuant to notice, on January 8, 2009, in Tallahassee, Florida, and continued on January 13, 2009, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Eleanor M. Hunter, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cynthia A. Henderson, Esquire

Cynthia A. Henderson, P.A.

411 Meridian Place Tallahassee, Florida 32303

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue is whether Petitioner is maintaining signs illegally as alleged in a Notice of Violation issued to Petitioner.

PRELIMINARY STATEMENT

On January 3, 2008, Respondent issued a Notice of Violation for signs erected on property in Florida City, Dade County, Florida. The Notice alleged violations of Sections 479.07 and 479.105, Florida Statutes (2008). On February 1, 2008, Respondent received a Petition for a Formal Administrative Hearing. On April 28, 2008, the case was referred to the Division of Administrative Hearings (DOAH) and assigned DOAH Case No. O8-2098.

A formal administrative hearing was scheduled for June 18, 2008, but counsel for the Petitioner filed a Notice of Appearance and a Motion for Continuance that day, and the case was continued and re-scheduled for July 23, 2008. Counsel for Petitioner filed a second Motion for Continuance on July 15, 2008, and the case was continued and re-scheduled for August 7, 2008. With the concurrence of the Petitioner, on August 8, 2008, Respondent filed a Motion for Remand to allow the case to proceed to an informal hearing. An Order Relinquishing Jurisdiction and Closing File was issued on August 6, 2008.

On October 22, 2008, Respondent filed a Motion to Reopen based on disputed issues of fact that arose during the informal hearing. The case was reopened and assigned DOAH Case No. 08- 5352, and set for a formal hearing on January 8, 2009.

The hearing began on January 8, 2009, and re-convened on January 13, 2009, to allow the testimony of a witness concerning

video and still pictures, to be presented by video teleconference. At the hearing, Respondent presented the testimony of Mack Barnes, Lynn Holschuh, and Mark Johnson. Respondent's Exhibits 1-14 were received into evidence.

Petitioner presented the testimony of Roy Dan Shiver, and Petitioner's Exhibits A, B, C, E, G, I, and J were received into evidence. In response to Petitioner's Motions for Judicial Notice, official recognition was taken of Chapters 290 and 479, Florida Statutes (2008), the Agreement between the United States Department of Transportation and the State of Florida dated

January 27, 1972, the Miami-Dade County Sign Ordinance, and the Florida House Staff Analysis of CS/CS/HB 985.

The two volumes of the Transcript were filed on January 21 and 27, 2009, respectively. Petitioner's Proposed Recommended Order was received on February 6, 2009. Respondent's Proposed Recommended Order was received on February 10, 2009.

FINDINGS OF FACT

1. Respondent, Department of Transportation (DOT), is the state agency that regulates outdoor advertising signs located within 660 feet of the State Highway System, interstate, or federal-aid primary system, as provided in Section 479.105, Florida Statutes (2008).

2. On January 3, 2008, DOT issued Notice of Violation T117MB alleging that eight signs on the Shiver Property (Shiver) in

   Florida City, Florida, were erected illegally, and requiring the owner to remove or to pay DOT to remove the signs. There is no dispute that the permits to erect the signs have not been issued by DOT.

3. The signs are mounted on top of the Shiver building located at 12 Northeast 3rd Street, Florida City, Dade County, Florida, and are from 16 to 27 feet apart from each other. The property is managed by Roy Dan Shiver (Mr. Shiver) who operates Shiver Glass and Mirror Company at the same location. Other tenants are the Frito Lay Company, a tax preparation service, and a real estate business.

4. One of the signs on the Shiver building advertises for "Captain Shon's Seafood Grill & Pub Fish and Chips MM 103 - Key Largo." Another sign reads "The Big Chill Waterfront Dining 24 miles to Sports Bar Tiki Bar Pool MM 104 - Key Largo - Bayside." A third sign advertises "Sunset - Seafood Marker 88."

5. Captain Shon's Seafood Grill & Pub Fish and Chips, Big Chill Waterfront Dinning, and Sunset - Seafood Marker 88 do not operate businesses on the Shiver property.

6. The remaining five signs are various advertisements for The Shell Man including the following:

   "The Shell M Windchi T-shirt 32 miles on left * 70 on" (with apparent damage cutting off some of the words);

   "The Shell Man Unique Gifts * Full Service * Gas Station * Free Shell Necklace 32 miles on left;"

   "The Shell Man Take Home A pet! Hermit Crabs

   32 miles on left * 70 miles on left;" "The Shell Man Come Blow A Conch Horn 32 miles on left;" and

   "The Shell Man Shark Necklaces Jaws & Gifts

   32 miles on left * 70 miles on left."

   
   

7. Mr. Shiver testified that The Shell Man has operated a business in the Shiver building for more than seven years, and currently operates in an office shared with Mr. Shiver after having moved from a separate office that is now occupied by a real estate company. His testimony regarding the length of time The Shell Man has operated a business at that location is not supported by the one lease he has with The Shell Man, dated January 1, 2008, with no other evidence of prior agreements. According to Mr. Shiver, The Shell Man operates a business by having brochures and samples of shells, that "they could sell" or "could give them away," in the Shiver office, but The Shell Man has no sign on the door and its owner comes and goes with no regular hours. Petitioner's claim that The Shell Man operates a business on the premises is not supported by the credible evidence.

8. In response to questions concerning the zoning and any special designations for the area in which the Shiver building is located, Mr. Shiver was "sure it's zoned commercial," believed it was part of a community redevelopment area, and

   testified that it was "very possible" that it is in an empowerment zone.

9. The signs on the Shiver building in Dade County all advertise for businesses located in Monroe County, and are oriented facing north to be seen by traffic heading south.

   Mr. Shiver testified that drivers on U.S. 1, a federal-aid primary highway, have to turn their heads and look back to see the signs on his building. A permitted billboard north of the Shiver property has two signs on it, one faces north and the other faces east.

10. Petitioner takes the position that, (1) the eight signs are not on U.S. 1 but on the Florida Turnpike off-ramp leading onto U.S. 1; (2) that the evidence does not clearly show that the signs are within 660 feet of and visible from a federal-aid primary highway or interstate; (3) that the signs are not too close together or to the nearest permitted billboard that has signs facing in different directions; (4) that the local government, not DOT, has the authority to regulate the signs under an agreement with the federal government; and (5) sign regulations are inapplicable in the "distressed area."

11. Mack Barnes, the DOT outdoor advertising inspector, who reported the possible sign violations to DOT testified that the signs are approximately 150 feet from the state right-of-way and are visible from U.S. 1. Mr. Barnes took a picture of the

    building with the signs to submit with his report. He could only submit one or two pictures with his report and to get the best vantage point, he took that picture from the Turnpike off ramp.

12. Mark Johnson, the DOT regional advertisement inspector, also photographed the signs on the Shiver building. Like Mr. Barnes, he took some photographs from the Turnpike ramp, but he took one, Respondent's Exhibit 7, while he was standing on southbound U.S. 1. That picture shows the Shiver building and five of the signs on top of it. Based on

    Mr. Johnson's measurements, the signs are from 16-to-27 feet apart, and the distance to the nearest permitted billboard, with tag numbers BC367 and CG754, is 445 feet. The measurements were taken with a Nightstar Distance Measuring Instrument and are more exact than an earlier DOT estimate of 491 feet based on the milepost locations. On December 31, 2007, Mr. Johnson checked each door of the Shiver building to see if any of the businesses advertised on the signs were operating on the premises and they were not. He did not go inside any of the offices.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

14 Respondent has the duty to regulate signs on designated highways, pursuant to Section 479.02, Florida Statutes (2008), and has the burden to prove that Petitioner, as charged, is maintaining illegal signs. See Florida Department of

Transportation v. J.W.C. Company, 396 So. 2d 778, 788 (Fla. 1st DCA 1981). The evidence of the acts alleged in the Notice of Violation must be clear and convincing. See Ferris v.

Turlington, 510 So. 2d 292 (Fla. 1987), holding that "in a case where the proceedings implicate the loss of livelihood, an elevated standard is necessary to protect the rights and interests of the accused." See also Department of Banking & Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

1. Respondent charged Petitioner with violating the provisions of Chapter 479, Florida Statutes (2008), including Section 479.105 that, in part, provides:

   Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section. (Emphasis added.)

   
   

2. There was no disagreement that U.S. 1 is a federal-aid primary highway. "On any portion of a federal-aid primary

   highway" is described in Subsection 479.07(1), Florida Statutes (2008), as follows:

   Except as provided in ss. 479.105(1 )(e) and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or 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 annual fee as provided in this section. For purposes of this section, "on any portion of the State Highway System, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system. (Emphasis added.)

   
   

3. There is no disagreement that a Turnpike off-ramp is not a "main-traveled way," as defined in Subsection 479.01(10), Florida Statutes(2008).

4. The evidence establishes clearly and convincingly that the signs at issues are 150 feet from the right-of-way of

   U.S. 1, or within a "controlled area," as that is defined in Subsection 479.01(4), Florida Statutes (2008), as follows:

   "Controlled area" shall mean 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 system and beyond 660 feet of the nearest edge of the right-of-way of any portion of the State Highway System, interstate, or federal-aid primary system outside an urban area.

5. The eight signs are clearly and convincingly "visible" as that term is defined by Subsection 479.01(26), Florida Statutes (2008):

   "Visible sign" means that the advertising message or informative contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity. the advertising message or informative contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity.

   
   

6. Although the best vantage point for seeing and photographing all of the signs is the Turnpike off-ramp, the evidence is clear and convincing that the signs are visible from

   U.S. 1 based on the statute and the applicable cases.

   
   

7. Petitioner relies on the Recommended Order in an earlier DOAH Case, 3M National Advertising Company v. State, Dep't. of Transportation, DOAH Case No. 85-3289 (R.O. 6/4/86), in which the hearing officer concluded that a sign was not "visible" because the message on it could not be read from the intersection with a controlled road. However, the hearing officer's legal conclusion was rejected by DOT in the final order at 3M National Advertising Company v. State, Dep't. of

   Transportation, 1986 Fla. Div. Adm. Hear. Lexis 1986, affirmed 513 So. 2d 1065 (Fla. 1st DCA 1987).

8. There is clear and convincing evidence that the signs on the Shiver building and the billboard do not face the same

   direction as the two permitted signs on the billboard. The Petitioner's reliance on the decision in Hancock Advertising Inc. v. Dep't of Transportation, 549 So. 2d 1086 (Fla. 3d DCA 1989), for the conclusion that signs must be oriented to the same audience for the spacing requirements to apply is not supported by the following statutory language:

   479.07(9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

   
   

   * * *

   
   

   2. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. (Emphasis added.)

   
   

9. The Hancock decision subsequently was repudiated as follows:

   That case involved a sign located at an intersection of an interstate highway and an expressway. The advertising message was directed at traffic on the expressway, although it was visible from the interstate, albeit drivers would have to turn their heads to read the message. The court held that the sign was not "on" the interstate and thus no permit from FDOT was needed for that sign.

   However, Hancock was decided when the 1987 version of section 479.07 was controlling.

   It contained no definition of "on." The statute was amended in 1991 by including the following language:

   For purposes of this section, "on any portion of the State Highway System, interstate, or federal-aid primary system"

   shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system. (Emphasis added.) 479.07, Fla. Stat.(1987).

   For appellate purposes, we must apply the current statutory law, even if we agreed with Hancock. The amended language clearly eliminates any continued reliance on the element of intent of the advertiser in these permit cases.

   
   

   Republic Media v. Dep't of Transportation, 714 So. 2d 1203, 1204 (Fla. 5th DCA 1998).

10. Similarly, the evidence is clear and convincing that the eight signs are spaced from 16-to-27 feet apart, not the required 1000 feet for separate signs, but Petitioner argues that the eight signs together are only one sign because they are connected at the base, and because they are a "wall mural" attached to a building, not a freestanding sign. For this interpretation, Petitioner cites Subsections 479.01(17) and (27), as follows:

    (17) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display or automatic changeable facing, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign,

    official marker, or specific information panel erected, caused to be erected, or approved by the department.

    
    

    (27) "Wall mural" means a sign that is a painting or an artistic work composed of photographs or arrangements of color and that displays a commercial or noncommercial message, relies solely on the side of the building for rigid structural support, and is painted on the building or depicted on vinyl, fabric, or other similarly flexible material that is held in place flush or flat against the surface of the building. The term excludes a painting or work placed on a structure that is erected for the sole or primary purpose of signage. (Emphasis added.)

    
    

11. The claim that the eight signs are a single sign must be rejected based on the evidence the separate panels must be no more that 15 feet apart to be considered a single sign. The claim that the signs are subject to local government regulation only and are exempt from DOT regulation as wall murals must be rejected based on the definition in Subsection 479.01(27) and the provisions of Section 479.156, Florida Statutes (2008), as

follows:

Notwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government. If a municipality or county permits wall murals, a wall mural that displays a commercial message and is within 660 feet of the nearest edge of the right-of-way within an area adjacent to the interstate highway system or the federal-aid primary highway system shall be located in an area that is zoned for industrial or commercial use and

the municipality or county shall establish and enforce regulations for such areas that, at a minimum, set forth criteria governing the size, lighting, and spacing of wall murals consistent with the intent of the Highway Beautification Act of 1965 and with customary use. A wall mural that is subject to municipal or county regulation and the Highway Beautification Act of 1965 must be approved by the Department of Transportation and the Federal Highway Administration and may not violate the agreement between the state and the United States Department of Transportation or violate federal regulations enforced by the Department of Transportation under s. 479.02(1). The existence of a wall mural as defined in s.

479.01(27) shall not be considered in determining whether a sign as defined in s. 479.01(17), either existing or new, is in compliance with s. 479.07(9)(a). (Emphasis added.)

See also Eller Media Company v. Department of Transportation, DOAH Case No. 00-1521 (R.O. 3/23/01, F.O. 6/1/01); and City Inn Hotel v. Department of Transportation, (R.O. 9/28/07, F.O.

12/26/07).

1. Petitioner suggests that the applicable spacing requirement is 500 feet and, alternatively, that DOT has no authority to regulate signs within the city limits, based on the

   U.S. Department of Transportation and the State of Florida Agreement regarding the regulation of Outdoor Advertising entered into in 1972. That argument has been rejected as follows:

   In Empire Outdoor Advertising v. Department of Transportation, 438 So.2d 851 (Fla. 1st

   DCA 1983), an advertising company appealed from an order of the DOT which directed the removal of an outdoor advertising sign. The First DCA affirmed and noted that there was competent substantial evidence to support the hearing officer's ruling that 27th Avenue (the location of the sign) in Miami was a federal aid primary highway. Thus, it seems implicit in the DCA's ruling that the DOT had authority over federal aid primary highways in Miami.

   
   

   In La Pointe Outdoor Advertising v. Florida Department of Transportation, 382 So.2d 1347 (Fla. 4th DCA 1980), the owner of an outdoor advertising sign near I-95 in Palm Beach County appealed from a final action of the DOT which ordered the removal of his sign.

   The DCA held that although the owner had received a building permit for the outdoor advertising sign from the county, the sign violated the spacing requirement of the DOT.

   
   

   Florida Department of Transportation v. E. T. Legg & Company, 472 So. 2d 1336 (Fla. 4th DCA 1985).

2. The cases also do not support Petitioner's contention that DOT may not impose regulations that are more strict than the federal regulations, or that federal regulations should control sign spacing requirements.

3. Because Respondent has presented clear and convincing evidence that the eight separate signs without permits are within the controlled area visible from a portion of the main- traveled way of U.S. 1, a federal-aid primary system highway, and are not "wall murals," the burden is shifted to Petitioner

   to demonstrate that the signs are exempt from the permitting requirement. Eller Media, supra.

4. Petitioner's assertion that the signs are exempt based on Section 479.16(1), Florida Statutes (2008), as advertisements for businesses on the premises is not supported by credible evidence.

5. Petitioner claims that an exception to the requirement for a permit applies, as provided in Section 479.105(1)(e), Florida Statutes (2008), as follows:

   However, if the sign owner demonstrates to the department that:

   1. The sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for a period of 7 years or more;

   2. At any time during the period in which the sign has been erected, the sign would have met the criteria established in this chapter for issuance of a permit;

   3. The department has not initiated a notice of violation or taken other action to remove the sign during the initial 7-year period described in subparagraph 1.; and

   4. The department determines that the sign is not located on state right-of-way and is not a safety hazard, the sign may be considered a conforming or nonconforming sign and may be issued a permit by the department upon application in accordance with this chapter and payment of a penalty fee of $300 and all pertinent fees required by this chapter, including annual permit renewal fees payable since the date of the erection of the sign.

      
      

6. The exception is inapplicable in this case. The evidence that the signs have been maintained more than seven

years was insufficient, and the eight signs never could have met the criteria for 1000 feet of space between each one of them.

1. Finally, Petitioner relies on Subsection 290.002(7), Florida Statutes (2008), to suggest that it is entitled to relief from having to comply with Chapter 479. In relevant part, Subsection 290.002(7) provides that:

   In order to provide the private sector with the necessary incentives to invest in such distressed areas, governments at all levels should seek ways to relax or eliminate fiscal and regulatory constraints and should seek to identify supportive actions that facilitate business investment in such distressed areas and overcome business objections to distressed area site locations.

   
   

2. The evidence was insufficient to demonstrate that the area surrounding the Shiver property is in a "distressed area" as intended by the Legislature, or that the result would be that DOT could not regulate the eight signs on the Shiver property.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Department of Transportation enter a

final order finding that the eight signs that are the subject of Notice of Violation T117MB are a public or private nuisance, and requiring that they be removed as provided in Subsection 479.105(1)(a), Florida Statutes.

DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 1st day of April, 2009.

COPIES FURNISHED:

Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A.

411 Meridian Place Tallahassee, Florida 32303

Kimberly Clark Menchion, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

James C. Myers, Agency Clerk Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephanie Kopelouso, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

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: 08-005352

Orders for Case No: 08-005352