STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MALIBU LODGING INVESTMENTS, LLC, )
)
Petitioner, )
)
vs. ) Case No. 09-1524
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on June 19, 2009, by video teleconference at sites in Miami and Tallahassee, Florida.
APPEARANCES
For Petitioner: Paul Sexton, Esquire
Williams, Wilson and Sexton, P.A.
215 South Monroe Street Tallahassee, Florida 32301
For Respondent: Susan Schwartz, Esquire
Assistant General Counsel Department of Transportation
Haydon Burns Building, Mail Stop 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUE
Whether the mural on the east exterior wall of the City Inn Hotel is an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes.
PRELIMINARY STATEMENT
On August 20, 2008, the Department of Transportation (Department) issued Notice of Violation-Illegally Erected Sign Number T144MB (Notice Number T144MB), advising Petitioner that the Department considered a mural (then advertising Bud Light) on the east exterior wall of Petitioner's City Inn Hotel (located at 660 Northwest 81st Street in Miami) to be an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes. Notice Number T144MB warned that if the sign was not removed within 30 days, it would "be removed and disposed of by the Department without further notice" and "all costs associated with the removal [would] be assessed against the sign owner."
On September 17, 2008, Petitioner filed a Request for Administrative Hearing with the Department. It subsequently, on December 5, 2008, filed an Amended Request for Administrative Hearing. The matter was referred to DOAH on March 20, 2009, "to arrange for an administrative hearing pursuant to Sections
120.569 and 120.57(1), Florida Statutes, in accordance with [Petitioner's request]."
On May 11, 2009, the parties filed a Joint Pre-Hearing Stipulation, which contained the following "Statement of Each Party[']s Position," "Admitted Facts," and "Agreed Issues of Law":
Statement of Each Party[']s Position Petitioner
The wall mural on the City Inn Hotel is [a] point of sale advertisement of accessory merchandise sold on the premises of the establishment, exempt from the requirement to obtain a Department permit pursuant to Section 479.16(1), Florida Statutes. The Department's construction of Section 479.16(1), Florida Statutes, is an unadopted rule, which cannot be applied to determine Malibu Lodging's substantial interests in this case.
The Department's enforcement of Section 479.07(1), Florida Statutes, against the wall mural on the City Inn Hotel is the result of selective enforcement. The Department has continued to pursue removal of the wall mural on the City Inn Hotel in spite of the fact that there are many other wall murals that have existed in Miami-Dade County for years without enforcement and removal, and the Department has apparently ceased effective enforcement regarding wall murals in the Miami-Dade County area. It is arbitrary and capricious for the Department to agree to put existing cases "on hold" and cease enforcement against other wall murals simply on a request by their owners, while continuing to pursue removal of the wall murals on the City Inn Hotel, particularly when other wall murals do not meet Department regulatory requirements. The Department has not established that the amendment to Miami-Dade County Ordinance
§33-80 could supersede the Department's
authority to regulate outdoor advertising. In fact, the Department has consistently argued that the amendment to Miami-Dade County Ordinance §33-80 does not supersede the Department's authority, and that argument was affirmed in Van Wagner Communications and Fuel Miami v. Department of Transportation, DOAH Case Nos. 08-1811RP, 08-1824RP.
There has been no adjudication of facts regarding the current wall murals on the City Inn Hotel. Notably, the Recommended Order in City Inn Hotel v. Department of Transportation, DOAH Case No. 06-3683 (recommended order 9/28/07), DOT Case No. 05-396 (final order dated 12/21/07), which
was adopted in the Department's Final Order, contained no findings of fact regarding the wall mural on the east side of the City Inn Hotel. Therefore, there has been no adjudication regarding that wall mural.
Because of the various ways that a sign can be exempted from regulation under Section 479.16, Florida Statutes, a determination regarding the exemption of one sign does not necessarily apply to another sign at the same location. Moreover, the amendment to Section 120.57(1)(e), Florida Statutes, effective January 1, 2009, precludes a prior adjudication based on an unadopted rule from being applied in any proceeding subsequent to that date. Thus, none of the findings or rulings of the Department in the prior case can serve as a basis for a claim of res judicata or collateral estoppel.
Respondent
Section 479.07, Florida Statutes, provides that with a few exceptions, a person may not maintain a sign within 660 feet of an interstate or federal-aid primary highway without a Department permit. Issuance of permits is limited to commercial and industrial areas and must meet size, lighting, and spacing requirements.
Petitioner has never received a permit to display advertising on its property, the City Inn Hotel adjacent to Interstate 95 at Northwest 81st Street, in Miami[-]Dade County, Florida. The August 20, 2008 Notice of Violation-Illegally Erected Sign was therefore properly issued.
Petitioner exhausted all administrative remedies previously in City Inn Hotel v. Department of Transportation, DOAH Case No. 06-3683 (recommended order 9/28/07), DOT Case No. 05-396 (final order dated 12/21/07), and this Petition should be dismissed under the doctrine of res judicata and collateral estoppel. Petitioner has not presented any facts to distinguish the instant proceeding involving a mural covering the entire east side of the City Inn Hotel, from the prior proceedings.
Petitioner also has not established that the Department lacks jurisdiction over the subject sign. In 2007, the Florida legislature enacted [Section] 479.156, Florida Statutes, authorizing local municipalities to regulate wall murals within areas it designated, however, if the murals were within 660 feet of an interstate or federal-aid primary highway, regulation would need to comply with federal regulations and could not violate the 1972 federal state agreement.
While the Department began developing Rule 14-10.025, to explain the department process for approval of murals adjacent to federal roadways, Miami-Dade County adopted an amendment to Ordinance §33-80 allowing a limited number of wall murals within the City of Miami's urban core. The urban core has a northern boundary of Northeast 18th Street and southern boundary of Southwest 8th Street. Petitioner was not located within this boundary.
Sign owners with murals located within the urban core requested that the administrative challenges to their notices of violation be deferred while they challenged proposed rule 14-10.025. The rule was upheld under challenge in Van Wagner Communications and Fuel Miami v. Department of Transportation, DOAH Case Nos. 08-1811RP, 08-1824RP (Final
Order dated 2/9/09) and is currently on appeal in the First District Court of Appeal. Petitioner has not established that the City Inn Hotel is being treated differently from others, as the City Inn Hotel is not subject to any local authority which could supersede the Department's authority to regulate outdoor advertising.
* * * Admitted Facts
A wall mural covers the east wall of the City Inn Hotel.
The advertisement for Landshark Lager is commercial advertising.
The advertisement can be seen without visual aid by motorists of normal visual acuity traveling on I-95.
The wall mural is within 660 feet of the edge of the right-of-way for I-95.
Petitioner has not applied for any permits from FDOT for the display of outdoor advertising.
Agreed Issues of Law
DOAH has jurisdiction over the parties and the matters presented herein.
Malibu Lodging has timely filed its petition in response to Notice of Violation 100505La [sic].
Malibu Lodging has standing to file a petition in response to Notice of Violation 100505La [sic].
As noted above, the final hearing in this case was held on June 19, 2009.2 Three witnesses testified at the hearing: Judah
Burstyn, Petitioner's President; Jose Cancela, who is working as a consultant for Petitioner; and Lynn Holschuh, the Department's Outdoor Advertising Administrator. In addition to the testimony of these three witnesses, 37 exhibits (Joint Exhibit 1, Petitioner's Exhibits 1 through 22, and Respondent's Exhibits 1 through 14) were offered and received into evidence. Joint Exhibit 1 was a transcript of the deposition of Mark Johnson, a Regional Inspector with the Department, which was offered in lieu of Mr. Johnson's live testimony.
During his testimony at the final hearing, Mr. Burstyn asserted that Petitioner had removed the wall mural on the east exterior wall of the City Inn Hotel. In light of this assertion (which was unrebutted), the undersigned directed the parties to file, no later than July 8, 2009, memoranda addressing the question of whether the undersigned should return the instant matter to the Department with the recommendation that the Department enter a final order dismissing Notice Number T144MB on the ground of mootness.
On July 8, 2009, Petitioner and the Department timely filed their memoranda, both arguing that the instant case was not
moot. In addition, on July 21, 2009, they filed a Joint Post- Hearing Stipulation, which read as follows:
Respondent, Department of Transportation, and Petitioner, Malibu Lodging Investments, LLC, by and through undersigned counsel, hereby jointly stipulate and agree to the following facts:
In a Joint Pre-Hearing Stipulation submitted May 11, 2009, the parties agreed that a wall mural covers the east wall of the City Inn Hotel and the advertisement for Landshark Lager is commercial advertising.
At hearing on June 19, 2009, Judah Burstyn, as corporate representative for Malibu Lodging Investments, LLC, testified that the Landshark Lager wall mural had been removed on June 17, 2009.
The wall mural on the east side of the City Inn Hotel, previously advertising Landshark Lager was replaced with an advertisement for Beck's Beer on or about June 24, 2009.
The attached photograph is an accurate depiction of the wall mural as it currently exists at the City Inn Hotel.
Both Landshark Lager and Beck's Beer are products of the Anhe[u]ser-Busch company.
The parties agree that the change to the advertisement does not render the issues presented moot and seek a recommended order on the merits of this case.
On July 22, 2009, the undersigned issued an Order Concerning Proposed Recommended Orders, which provided, in pertinent part, as follows:
In view of the facts stipulated to by the parties in their Joint Post-Hearing Stipulation, the undersigned will not return the instant matter to the agency without issuing a recommended order.
The parties are reminded that the deadline for the filing of proposed recommended orders in the instant case is as follows:
25 days from the date that the transcript of the final hearing was filed with the Division of Administrative Hearings (DOAH). Inasmuch as the hearing transcript was filed with DOAH on July 20, 2009, proposed recommended orders shall be filed no later than August 14, 2009. . . .
On August 14, 2009, Petitioner and the Department timely filed their Proposed Recommended Orders.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, including the parties' factual stipulations, the following findings of fact are made:
Pursuant to federal law (specifically, 23 U.S.C.
§ 131(b) of the Highway Beautification Act of 1965), a state's share of federal-aid highway funds may be reduced by ten percent if the state has failed to maintain "effective control" of outdoor advertising "along the Interstate System and the primary system."
What constitutes "effective control," as that term is used in 23 U.S.C. § 131(b), is explained as follows in 23 U.S.C.
§ 131(c):
Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located,
signs, displays, and devices including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located,
signs lawfully in existence on
October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a
donation may be made, but is not required.
An exception to the restrictions imposed on outdoor advertising by 23 U.S.C. § 131(c) is found in 23 U.S.C.
§ 131(d), which allows the placement of signs in commercial and industrial areas "consistent with customary use," as "determined by agreement between the several States and the Secretary [of the federal Department of Transportation]."
Florida is a signatory to such an agreement. The agreement was entered into on January 27, 1972, by the Administrator of the Federal Highway Administration, acting on behalf of the federal Department of Transportation, and the Governor of the State of Florida, acting on behalf of the State (1972 Agreement).
Section II. of the 1972 Agreement is entitled, "Scope of Agreement," and it reads as follows:
This agreement shall apply to the following areas:
All zoned and unzoned commercial and industrial areas within six hundred sixty (660) feet of the nearest edge of the right- of-way of all portions of the Interstate and Federal-aid Primary Systems within the State of Florida in which outdoor advertising signs may be visible from the main-traveled way of either or both of said systems.
Section III. of the 1972 Agreement is entitled, "State Control," and it reads, in pertinent part, as follows:
The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria:
In zoned commercial and industrial areas, the State may notify the Administrator that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply.
In all other zoned and unzoned commercial and industrial areas, the criteria set forth below shall apply:
SIZE OF SIGNS
The maximum area for any one sign shall be twelve hundred (1,200) square feet with a maximum height of thirty (30) feet and maximum length of sixty (60) feet, inclusive of any border and trim but excluding the base or apron, supports, and other structural members.
The area shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof which will encompass the entire sign.
The maximum size limitations shall apply to each side of a sign structure; and signs may be placed back-to-back, side-by-side, or in V-type construction with not more than
two displays to each facing, and such sign structure shall be considered as one sign.
SPACING OF SIGNS
Interstate and Federal-aid Primary Highways.
Signs may not be located in such a manner as to obscure, or otherwise physically interfere with the effectiveness of an official traffic sign, signal, or device, obstruct or physically interfere with the deriver's view of approaching, merging, or intersecting traffic.
Interstate Highway.
a. No two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction.
* * *
Federal-aid Primary Highways.
No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction.
Explanatory Notes.
Official and "on premise" signs, as defined in Section 131(c) of Title 23, United States Code, and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements.
The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the
highway and shall apply only to structures located on the same side of the highway.
LIGHTING
Signs may be illuminated subject to the following restrictions:
Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.
Signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of the Interstate or Federal- aid Primary Highway and which are of such intensity or brilliance as to cause glare or to imp[air] the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited.
No sign shall be so illuminated that it interferes with the effectiveness of, or obscures an official traffic sign, device, or signal.
All such lighting shall be subject to any other provisions relating to lighting of signs presently applicable to all highways under the jurisdiction of the State.
At any time that a bona fide county or local zoning authority adopts regulations which include the size, lighting, and spacing of outdoor adverting, the State may so certify to the Administrator and control of outdoor advertising in the commercial or industrial zones within the geographical jurisdiction of said authority will transfer to subsection A of this section.
* * *
Section IV. of the 1972 Agreement is entitled, "Interpretations," and it reads as follows:
The provisions contained herein shall constitute the standards for effective control of signs, displays, and devices within the scope of this agreement.
In the event the provisions of the Highway Beautification Act of 1965 are amended by subsequent action of Congress or the State legislation is amended, the parties reserve the right to renegotiate this agreement or to modify it to conform to any amendment.
The 1972 Agreement has not been modified, pursuant to the provisions of Section IV., at any time subsequent to its execution in 1972.
The Florida Legislature has delegated to the Department the responsibility of administering and enforcing the 1972 Agreement, as well as Chapter 479, Florida Statutes, which regulates "outdoor advertising."
As the Department's Outdoor Advertising Administrator, Lynn Holschuh is responsible for overseeing the Department's discharge of this responsibility. She has delegated to the Regional Inspectors under her charge (including Mark Johnson, the lone Regional Inspector whose territory includes Miami-Dade County) the authority to post notices of violations on all illegal signs, without restriction.
Among the provisions in Chapter 479, Florida Statutes, is Section 479.156, Florida Statutes, which was originally effective July 1, 2007, and provides that, "[n]otwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government," provided it does so within the parameters prescribed by the statute.
The City of Miami has an ordinance (Miami Ordinance) permitting a limited number of wall murals in certain geographic areas of the city (wall mural districts3) that meet specified size, lighting, and spacing requirements. Among the Miami Ordinance's "Whereas" clauses is the following:
WHEREAS, it is determined that the prominent display of large outdoor advertisements in the commercial and industrial Urban Core areas of Miami, as defined by Miami-Dade County, was a predominant and customary use up to and including 1972, and that permitting wall murals as designated in this ordinance is consistent with such customary use and the intent of the Highway Beautification Act of 1965.
Sometime after May 1, 2009, the City of Miami sent to the Department a written request that it be "certified for local control over wall murals" pursuant to Section III. of the 1972 Agreement. The request read as follows:
Request from the City of Miami to the Florida Department of Transportation to be certified for local control over wall murals pursuant to 23 U.S.C. § 131, 23 C.F.R.
The City of Miami has passed Ordinance No. 12983 creating Sections 62-601 through 62- 618 of the Code of the City of Miami, on May 10, 2008, permitting and regulating wall murals. An amendment to that ordinance was subsequently adopted, which confirms that wall murals were a customary use as of 1972 and thereafter. Copies of the ordinance and amendment are enclosed.
This ordinance was adopted with the intent to permit art or graphics on buildings and existing walls in certain commercial and industrial areas "in order to aesthetically enhance otherwise blank walls and unoccupied buildings." The funds from permitting these activities is to be utilized "to ensure quality of life and prevention of visual clutter or blight."
It is estimated that nearly $2 million dollars of new local revenue is being generated from the permitting process. In these difficult economic times, this revenue is even more vital and the City is appreciative of both the State of Florida's and the Federal government's mutual assistance in helping create this stimulus.
The ordinance is consistent with the intent of the Highway Beautification Act, the 1972 Federal-State agreement, and with federal regulations, federal policy, as well as with
§ 479.156, F.S. and Fla. Admin. [Code] R. 14-10.025. The ordinance and this submission are also consistent with the amendment to § 479.156, F.S., passed on May 1, 2009 by the Legislature in HB 1021.
The City of Miami's request for certification is still pending. The Department is "awaiting [supporting] documentation
from the City of Miami," which it has yet to receive. When it receives such documentation, it will refer the matter "for [the Federal Highway Administration's] determination."
The Department has several "open cases" (the oldest dating back to 2006) each involving one or more allegedly illegal wall murals located in a wall mural district created by the Miami Ordinance.5 The Department has decided not to refer these "open cases" to DOAH for hearing, nor to take any other action with respect to these cases (including removal of the wall murals in question), until after a determination is made by the Federal Highway Administration as to whether the Miami Ordinance "effectively controls" outdoor advertising in the wall mural districts described in the ordinance in a manner "consistent with the intent of the Highway Beautification Act of 1965 and with customary use," as required by the 1972 Agreement.
The City Inn Hotel (Hotel) is located at 660 Northwest 81st Street in Miami.
It is not within any of the wall mural districts created by the Miami Ordinance.
There presently is no local government ordinance comparable to the Miami Ordinance permitting wall murals in the area in which the Hotel is located, although Petitioner is engaged in efforts to convince the Miami-Dade County Commission that it should pass such an ordinance.
Petitioner has owned the Hotel since July 2000.
The Hotel is a revenue producing property. Petitioner rents out space inside the Hotel (hotel rooms, apartments, offices, and facilities for banquets and worship services); on the roof of the Hotel (for the placement of cellular towers); and on the exterior walls of the Hotel (for the display of wall murals).6
There have been "wall murals on the [exterior of the] building since [Petitioner] bought the property."
At no time has Petitioner ever requested or obtained from the Department a sign permit for any of these murals.
By issuance of Amended Notice of Violation-Illegally Erected Sign Number 1005005La (Amended Notice Number 1005005La) on June 23, 2006, the Department notified Petitioner that murals on the north, south, and east exterior walls of the Hotel were "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes," and that these murals had to be "removed [by Petitioner] within thirty days" or else they would be "removed and disposed of by the Department without further notice" at Petitioner's expense. Petitioner requested an administrative hearing, and the Department forwarded the matter to DOAH for the assignment of an administrative law judge. The case was docketed as DOAH Case No. 06-3683.
The final hearing in DOAH Case No. 06-3683 was held on June 5, 2007, before Administrative Law Judge Patricia M. Hart.
Judge Hart issued her Recommended Order in DOAH Case No. 06-3683 on September 28, 2007.
Judge Hart's Recommended Order contained the following Findings of Fact:
The Department is the state agency responsible for regulating outdoor advertising and for issuing permits for signs located along interstate and federal aid primary highways pursuant to Chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10. See 479.02, Fla. Stat.
Judah Burstyn is the president of Malibu Lodging LLC, which owns the City Inn Hotel, a 200-room hotel located at 660 Northwest 81st Street, Miami, Florida. Mr. Burstyn describes the business of Malibu Lodging Investments/City Inn Hotel as a mixed-used real estate project.
Malibu Lodging Investments/City Inn Hotel rents hotel rooms and apartments in the City Inn Hotel property; it rents rooftop space on top of the City Inn Hotel to cellular telephone companies; it owns a used car lot located at 8028 Northwest 6th Court, Miami, Florida, adjacent to the hotel property; it rents meeting space in the hotel to a church; it rents the hotel banquet room and parking lot for special events; it rents office space and storage space in the City Inn Hotel; and it rents the use of portions of the City Inn Hotel property to tenants and the public for special events.
In Plain Sight Media, a Nevada corporation, is principally engaged in the
business of advertising and marketing its clients' products. In Plain Sight Media is a full-service media company that, among other things, designs, prints, installs, and removes outdoor advertising for its clients. The outdoor advertising primarily consists of images printed on large sheets of self- adhesive vinyl that are affixed to the exterior walls of buildings. In Plain Sight Media also designs and distributes promotional materials for its clients and assists its clients in direct sales of the clients' products. It does not, however, engage in actual direct sales of its clients' products.
Pursuant to a lease executed March 1, 2007, by Malibu Lodging Investments/City Inn Hotel and In Plain Sight Media, In Plain Sight Media leases office and other space in the City Inn Hotel property from Malibu Lodging Investments/City Inn Hotel for rent totaling $21,750.00 per month. The lease provides that In Plain Sight Media has the right to "place advertising signage on the [City Inn Hotel] premises at [In Plain Sight Media's] discretion" and that In Plain Sight Media "shall use the Property as a media, marketing and advertising company for products having to do with Volkswagen, Vitamin Water and other clients represented by [In Plain Sight Media], whose clients['] promotional products and services are available on the [Malibu Lodging Investments/City Inn Hotel] premises."
In Plain Sight Media employs an individual who is in the office located in the City Inn Hotel from time to time, on an as-needed basis. She is responsible for answering the telephone, responding to inquiries from the public about the products of In Plain Sight Media's clients, organizing special promotional events, and performing general office work.
Malibu Lodging Investments/City Inn
Hotel and In Plain Sight Media also executed a Lease Agreement for Wallspace at or about the end of January 2007, in which In Plain Sight Media agreed to pay Malibu Lodging Investments/City Inn Hotel the greater of
$21,750.00 per month or 50 percent of In Plain Sight Media's monthly ad revenue for the right to install and maintain wall signage advertisements or displays on each of the north and south exterior walls of the City Inn Hotel property at 600 [sic] Northwest 81st Street in Miami, Florida, for a minimum total monthly rent of $43,500.00.
According to the testimony of Mr. Burstyn and of Marc Caldera, President of In Plain Sight Media, the March 1, 2007, lease covering office, storage space, and the use of other space in the City Inn Hotel and the adjacent parking lot and used car lot operated to void the Lease Agreement for Wallspace.
On June 23, 2006, when the Amended Notice of Violation-Illegally Erected Sign was issued, large wall murals were attached to the north, east, and south exterior walls of the City Inn Hotel property advertising Heineken beer, Krieger watches, and a "Read to Achieve" program promoted by the Miami Heat basketball team. At the time of the final hearing in this case, these wall murals had been replaced with two larger wall murals on the north and south exterior walls, each approximately 60 feet wide and
65 feet high.[7] One wall mural featured a picture of a Volkswagen automobile with the slogan, "Woe isn't you. Dare to be happy," located on the south exterior wall of the City Inn Hotel, and the other featured a picture of a bottle of Vitamin Water and Shaquille O'Neal with the slogan "diesel power it works . . . for shaq," on the north exterior wall. Both of the banners were created, installed, and maintained by In Plain Sight Media.
Guests at the City Inn Hotel sometimes purchase an automobile from the used car lot located adjacent to the City Inn Hotel and owned by Malibu Lodging Investments/City Inn Hotel. Volkswagen automobiles are, from time to time, available for rent or for sale on this car lot.
In Plain Sight Media sells Vitamin Water from a vending machine inside the City Inn Hotel property, and Malibu Lodging Investments/City Inn Hotel receives a percentage of the revenue from the vending machine sales. If anyone asks about Vitamin Water at the In Plain Sight Media office in the City Inn Hotel, during the time the office is staffed, information about the product and promotional material is available.
The wall murals installed on the north and south exterior walls of the City Inn Hotel property have generated inquiries to In Plain Sight Media from persons interested in its advertising and/or marketing services, and Mr. Burstyn believes that the wall murals have increased foot traffic in the City Inn Hotel.
Both of the wall murals installed on the exterior walls of the City Inn Hotel are visible from Interstate 95 and are located within 660 feet of the right-of-way for that federal highway.
Neither In Plain Sight Media nor Malibu Lodging Investments/City Inn Hotel has applied to the Department for, or obtained, outdoor advertising permits for these wall murals.
The wall murals on the exterior walls of the City Inn Hotel property are signs that advertise Volkswagen automobiles and Vitamin Water. As such, they cannot be displayed without an outdoor advertising permit.
The wall murals do not advertise In Plain Sight Media or the City Inn Hotel, nor do they identify any merchandise or service offered as part of the principal business activity of either In Plain Sight Media or the City Inn Hotel.
There is currently no agreement explicitly giving Malibu Lodging Investments/City Inn Hotel the right to receive rental income attributed to outdoor advertising attached to the exterior walls of the City Inn Hotel. The March 1, 2007, lease gives In Plain Sight Media the right to "place advertising signage" on the City Inn Hotel property, and it is reasonable to infer that a portion of the $21,750.00 per month rent paid to Malibu Lodging Investments/City Inn Hotel by In Plain Sight Media includes rent for the use of the exterior walls of the City Inn Hotel for advertising signage. This inference is supported by the terms of the lease executed in January 2007, which provided for In Plain Sight Media to pay Malibu Lodging Investments/City Inn Hotel a minimum of
$43,500.00 in rent for nothing more than the right to affix advertising wall murals on the exterior surfaces of the north and south walls of the City Inn Hotel.
Wall murals have been attached to the exterior walls of the City Inn Hotel since at least the early 1990's.
Malibu Lodging Investments/City Inn Hotel elicited evidence from the Department's witnesses relating to the withdrawal of a notice of violation for an illegal, unpermitted wall mural advertising "Continuum II." The notice of violation was withdrawn by the Department because it determined that the sign advertised a project that was to be developed on the site where the wall mural was displayed. When the "Continuum II" wall mural was replaced
with a wall mural advertising Fiji water, a notice of violation was issued for that unpermitted sign.
In her Recommended Order, Jude Hart made the following Conclusions of Law, among others:
24. Based on the findings of fact herein, the Department has proven by a preponderance of the evidence that the wall murals attached to the north and south exterior walls of the City Inn Hotel are signs that are visible from and within 660 feet of a federal interstate highway and that the signs were erected and are maintained without a permit.
* * *
Based on the findings of fact herein, Malibu Lodging Investments/City Inn Hotel has failed to carry its burden of proving that the wall murals advertising Volkswagen automobiles and Vitamin Water fall within the exemption set forth in Section 479.16(1), Florida Statutes. The principal business activity of In Plain Sight Media is marketing and promotion, including the design, erection, and maintenance of wall murals, and the principal business activity of Malibu Lodging Investments/City Inn Hotel is an income-producing, mixed-use real estate venture. Volkswagen automobiles and Vitamin Water are neither principal nor accessory products or services "sold, produced, manufactured, or furnished" on the premises of the City Inn Hotel but are, at best, products incidental to the principal business activity of these companies. The fact[] that, from time to time, Volkswagen automobiles are available for sale or rent on the used car lot owned by Malibu Lodging Investments/City Inn Hotel; that Vitamin Water is sold from a vending machine in the City Inn Hotel; and that the wall murals have generated interest in the advertising
services provided by In Plain Sight Media and have increased the foot-traffic in the City Inn Hotel are not sufficient to establish that these wall murals advertise products or services that are the principal business activity of Malibu Lodging Investments/City Inn Hotel or In Plain Sight Media.
Furthermore, based on the findings of fact herein, it is reasonable to infer that part of the rental income Malibu Lodging Investments/City Inn Hotel receives from In Plain Sight Media is for the right to use the hotel's exterior walls to display wall murals, so the wall murals [displayed by] Malibu Lodging Investments/City Inn Hotel [are] not entitled to the exemption in Section 479.16(1), Florida Statutes.
Finally, based on the findings of fact herein, Malibu Lodging Investments/City Inn Hotel has failed to prove that the wall murals advertising Volkswagen automobiles and Vitamin Water are conforming or nonconforming signs for which a permit may be issued pursuant to Section 479.105(1)(e), Florida Statutes. There was no showing that wall murals have been continuously maintained on the exterior walls of the City Inn Hotel for the past seven years. The wall murals must, therefore, be removed.
"Based on [her] Findings of Fact and Conclusions of Law," Judge Hart recommended that the Department "issue a final order finding that the wall murals attached to the exterior walls of the City Inn Hotel property violate[d] Section 479.07(1), Florida Statutes, and ordering that the wall murals be removed."
In her Recommended Order, Judge Hart did not address
the issue of whether the wall mural that had been attached to the east exterior wall of the Hotel, but had been removed prior to the final hearing, had been illegally erected and maintained, as had been alleged in Amended Notice Number 1005005La. Neither did she discuss the issue of whether the Department was guilty of engaging in selective enforcement.
In the Final Order that it issued on December 21, 2007, the Department adopted Judge Hart's Findings of Fact and Conclusions of Law and ordered the following, "[b]ased upon [these] Findings of Fact and Conclusions of Law":
ORDERED that Malibu Lodging Investments, LLC, d/b/a City Inn Hotel, shall remove the wall murals attached to the exterior walls of the City Inn Hotel property identified in the Department of Transportation's Notice of Violation-Illegally Erected Sign and Amended Notice of Violation-Illegally Erected Sign, Notice No. 100505La [sic], within 30 days of this final order. It is further
Petitioner currently has a lease agreement with Anheuser-Busch (Lease Agreement), pursuant to which it receives rental income for displaying murals advertising Anheuser-Busch products on the exterior of the Hotel.9
This is a critical revenue source for Petitioner.
According to Petitioner's President, Judah Burstyn, without the wall mural revenue it receives, Petitioner would have to close the Hotel and file for bankruptcy.
As part of the Lease Agreement, Anheuser-Busch has "occupie[d] space in the [Hotel]." Initially, the space it occupied was used just for "storage."10 Subsequently, it set up a "satellite [office] location" at the Hotel.
The record is devoid of any persuasive competent substantial evidence that any Anheuser-Busch product, including Bud Light, Landshark Lager, or Beck's Beer, is now, or was at any time material to the instant case, sold, produced, manufactured, or furnished on the premises of the Hotel.
At the time of the issuance of Notice Number T144MB, a mural advertising Bud Light covered the east exterior wall of the Hotel. This mural was replaced (on or before April 22, 2009) by a mural advertising Landshark Lager, which, in turn, was taken down (on June 17, 2009) and replaced (on or about
June 24, 2009) by the mural now covering the east exterior wall. This mural advertises Beck's Beer. Like its predecessors, it is unpermitted, is within 660 feet of the edge of the right-of-way of I-95, and can be seen without visual aid by motorists of normal visual acuity traveling on I-95.
The Department has not carried out the threat it made
in Notice Number T144MB that, if the mural on the east exterior wall of the Hotel was not removed by Petitioner within 30 days of August 20, 2008, the mural would "be removed and disposed of by the Department without further notice" and "all costs associated with the removal [would] be assessed against the sign owner." More than a full year has passed since the issuance of Notice Number T144MB and an unpermitted mural (albeit one advertising a different Anheuser-Busch product) still covers the east exterior wall of the Hotel.
CONCLUSIONS OF LAW
Chapter 479, Florida Statutes, regulates "signs in areas adjacent to state highways."
A "sign," as that term is used in Chapter 479, Florida Statutes, is defined in Section 479.01(17), Florida Statutes, as follows:
"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.
A "wall mural" is "a sign [as defined in Section 479.01(17), Florida Statutes] 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." § 479.01(27), Fla. Stat.
The regulatory program established by Chapter 479, Florida Statutes, involves the Department's permitting of "signs" that meet established requirements.11
Section 479.07, Florida Statutes, is entitled, "Sign permits." Subsection (1) of the statute provides as follows:
Except as provided in ss. 479.105(1)(e)[12] 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 urban area, as defined in s. 334.03(32), 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. As used in this section, the term "on any portion of the State Highway System, interstate, or
federal-aid primary system" means a sign located within the controlled area which is visible from any portion of the main- traveled way of such system.
"Controlled area," as that term is used in Section 479.07(1), Florida Statutes, and elsewhere in Chapter 479, Florida Statutes, is defined in Section 479.01(4), Florida Statutes, 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 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."
"Main-traveled way," as that term is used in Section 479.07(1), Florida Statutes, and elsewhere in Chapter 479, Florida Statutes, is defined in Section 479.01(10), Florida Statutes, as "the traveled way of a highway on which through traffic is carried."
A "sign" within the "controlled area" is "visible" from the "main-traveled way" if "the advertising message or informative contents of [the] sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity." § 479.01(26), Fla. Stat.
The Beck's Beer "wall mural" now on the east exterior wall of the City Inn Hotel (Mural) is such a "visible sign" and is therefore subject to the permitting requirements of Section 479.07(1), Florida Statutes, unless exempted therefrom by Section 479.16, Florida Statutes.
Section 479.16, Florida Statutes, describes "[s]igns for which [Department] permits are not required." Pursuant to Subsection (1) of the statute,13 which provides as follows, they include on-premises signs:
The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter but are required to comply with the provisions of s. 479.11(4)-(8):
Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which comply with the lighting restrictions under department rule adopted pursuant to s. 479.11(5),[14] or signs owned by a municipality or a county located on the premises of such municipality or such county which display information regarding government services, activities, events, or entertainment. For purposes of this section, the following types of messages shall not be considered information regarding government services, activities, events, or entertainment:
Messages which specifically reference any commercial enterprise.
Messages which reference a commercial sponsor of any event.
Personal messages.
Political campaign messages.
If a sign located on the premises of an establishment consists principally of brand name or trade name advertising and the merchandise or service is only incidental to
the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection.
The burden is on the party claiming entitlement to the "on premises" exemption provided for in this statutory
provision--in this case Petitioner--to prove such entitlement. See Henderson Sign Service v. Department of Transportation, 390 So. 2d 159, 160 (Fla. 1st DCA 1980)("[T]he burden of proving entitlement to any exceptions of [Chapter 479's] advertising requirements is upon appellants, not the Department."); and Walker v. Department of Transportation, 352 So. 2d 126, 128 (Fla. 1st DCA 1977)("The burden of proving entitlement to the statutory exemption [set forth in Section 479.16(2), Florida Statutes) was on petitioner ").
Petitioner, in the instant case, failed to present sufficient evidence to support its contention (as stated in its Proposed Recommended Order) that the Mural "is exempted under Section 479.16(1), Florida Statutes, because it identifies the principal or accessory merchandise, services or activities furnished on the premises of the establishment." No showing was made that the Anheuser-Busch product "identifie[d]" on the Mural is being "sold, produced, manufactured, or furnished on the premises" of the Hotel. Moreover, even if such a showing had been made, there would be no entitlement to an "on premises"
exemption inasmuch as the evidentiary record affirmatively establishes that Petitioner, the Hotel owner, "receives rental income from the [Mural]."
The undersigned rejects as being without merit Petitioner's claim that the only way the Department can find that there is no "on premises" exemption in the instant case is if it relies on an "unadopted rule," which it is prohibited from doing by Section 120.57(1)(e), Florida Statutes. According to the argument made by Petitioner (as set out in its Proposed Recommended Order):
The Department consistently interprets the exemption language of Section 479.16(1), Florida Statutes, so that, even though a sign may identify the princip[al] or accessory merchandise, services or activities furnished on the premises, per the first paragraph of subsection (1), the Department will not consider it to meet the terms of the exemption under the statute if the sign also consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, per the last paragraph of subsection (1).
The Department's application of the exemption language of Section 479.16(1), Florida Statutes, is a "rule" under [Section] 120.52(16), Florida Statutes, because it is an agency statement of general applicability that implements or interprets law, and has not been excluded by the terms of Section 120.52(16)(a)-(c), Florida Statutes. It is an unadopted rule under Section 120.52(20), Florida Statutes,
because the Department has not adopted a rule that reflects its interpretation of the language of Section 479.16(1), Florida Statutes.
Petitioner is correct that, pursuant to Section 120.57(1)(e), Florida Statutes, except under circumstances not present in the instant case, "[a]n agency . . . may not base agency action that determines the substantial interests of a party on an unadopted rule" (which is defined in Section 120.52(20), Florida Statutes, as "an agency statement that meets the definition of the term 'rule,' but that has not been adopted pursuant to the requirements of [Section] 120.54, [Florida Statutes]").
The undersigned, however, cannot agree that the Department's "consistently" interpreting Section 479.16(1), Florida Statutes, as providing that no exemption is available under that subsection if the sign in question "consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign," constitutes an "unadopted rule," as that term is used in Chapter 120, Florida Statutes. Such an interpretation "simply reiterates the [L]egislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in
and of itself purport[s] to create rights, or require compliance, or to otherwise have the direct and consistent effect of the law." It therefore "is not an [unadopted] rule, and actions based upon such an interpretation are permissible without requiring [the Department] to go through rule making." St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351, 1355 (Fla. 1st DCA 1989); see also National Foundation to Prevent Child Sexual Abuse, Inc. v. Department of Law Enforcement, No. 07-4898RU, 2007 Fla. Div. Adm. Hear. LEXIS 648 *40 (Fla. DOAH November 27, 2007)(Summary Final Order)("Significantly, the Challenged Statement does not, by its own terms, establish any new fee requirements or procedures. Rather, it attempts merely to summarize, for the benefit of interested members of the public, existing requirements and procedures that have been established elsewhere . . . ."); Reynolds v. Board of Trustees of the Internal Improvement Trust Fund, No. 03-4478RU, 2004 Fla. ENV LEXIS 222 *15-16 (Fla. DOAH February 20,2004)(Final Order)("Lastly, regarding the first statement challenged, the history surrounding driving on the beach and regulation by the BOT indicates that the Legislature has limited BOT's jurisdiction to regulate driving on the beach by Section 161.58, Florida Statutes. The challenged statement is [a] re-statement of the scheme of statutory regulation, and not a statement of
BOT policy."); RHC and Associates, Inc. v. Hillsborough County School Board, No. 02-3138RP, 2002 Fla. Div. Adm. Hear. LEXIS 1517 *57 (Fla. DOAH October 11, 2002)(Final Order)("Rules are not intended to simply repeat statutory language; they are intended to implement and interpret statutes by 'fleshing out' or filling gaps in the statutory directives and by providing [more] detail than the statutes."); Aloha Utilities, Inc. v.
Public Service Commission, No. 97-2485RU, 1998 Fla. Div. Adm. Hear. LEXIS 5497 *29 (Fla. DOAH March 9, 1998)(Final Order)("Statements simply reiterating statutory or rule requirements also are not rules under Sections 120.52(15) and 120.74(1)(d), Florida Statutes (1997)."); and § 120.545(1)(c), Fla. Stat. ("As a legislative check on legislatively created authority, the [Joint Administrative Procedures] [C]ommittee shall examine each proposed rule, except for those proposed rules exempted by s. 120.81(1)(e) and (2), and its accompanying material, and each emergency rule, and may examine any existing rule, for the purpose of determining whether: The rule reiterates or paraphrases statutory material."). To interpret Section 479.16(1) in any other way than the Department consistently has would effectively read out of the statute the language in its closing paragraph, a result obviously not intended by the Legislature and therefore beyond the Department's power to accomplish. See Murray v. Mariner Health,
994 So. 2d 1051, 1061 (Fla. 2008)("[A] statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision."); In re Estate of Ratliff, 188 So. 128, 133 (Fla. 1939)("[W]e cannot read out of the statute the plain language and obvious meaning of the words 'Then the dower shall be limited to the portion of the estate of the decedent to which the widow is entitled under the law of descent and distribution, to-wit, a child's part.' Perhaps the legislature did not fully contemplate the effect of this language, as applied to cases like the one here before us; we cannot tell just what was in the legislative mind on this subject; but the fact remains that they used this language and that its meaning is obvious and definite and that it construes itself. . . . [W]e cannot see our way clear to change the language of the statute or give it a strained meaning and construction which do[es] violence to the obvious meaning and effect of the language used."); Craig v. School Board of Broward County, 679 So. 2d 1219, 1223 (Fla. 4th DCA 1996)("Any other construction would give no effect at all to subsection (3).
There would be no reason to create a separate subsection of the statute for school buses if they were treated the same as all other vehicles, which were entitled to rely on posted speed signs."); and City Center Motel, Inc. v. Florida Hotel and Restaurant Commission, 134 So. 2d 856, 858 (Fla. 1st DCA
1961)("To support petitioner's contention would require that the court ignore and read out of the statute the salutary provision which requires that all figures and letters appearing on rate signs in front of public lodging establishments shall be of similar size and prominence. It was the prerogative of the legislature to make such requirement, and the court would be guilty of invading the province of the legislature if it attempted to ignore it.").
In any event, even if the last paragraph of Section 479.16(1), Florida Statutes, were to be ignored by the Department (as Petitioner, in effect, argues it should be pursuant to Section 120.57(1)(e), Florida Statutes), the outcome of the instant case would still be the same inasmuch as the record evidence fails to establish that the Mural meets the requirements for an exemption set out in Section 479.16(1)'s first paragraph (that is, either (1) "consist[s] primarily of the name of the establishment"; (2) "identif[ies] the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which compl[ies] with the lighting restrictions under [D]epartment rule adopted pursuant to [Section] 479.11(5), [Florida Statutes]"; or (3) is "owned by a municipality or a county," is "located on the premises of such municipality or such county," and "display[s] information
regarding government services, activities, events, or entertainment").
Further in its defense, Petitioner claims that it is the victim of the Department's "selective enforcement," arguing that there are "numerous other murals that have been allowed to remain for years along interstate and federal aid primary highways in Miami-Dade County" and that, given "th[is] widespread non-enforcement of Chapter 479, [Florida
Statutes], . . . the Department should dismiss its Notice [Number] T144MB."
"The doctrine of selective enforcement is one involving [constitutional] equal protection rights." Department
of Transportation v. G and J Management Company, Inc., No. 01- 1430T, 2001 Fla. Div. Adm. Hear. LEXIS 3081 *9 (Fla. DOAH
October 24, 2001)(Recommended Order). "To establish a defense of selective enforcement, there must be more than a mere failure to [enforce the law against] all offenders; the selective enforcement must be deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification [of an invidious nature]." Polk County v.
Mitchell, 931 So. 2d 922, 926 (Fla. 2d DCA 2006). "[T]he key issue in an equal protection claim alleging selective enforcement [is] impermissible motive." Jennejahn v. Village of Avon, 575 F. Supp. 2d 473, 482 (W.D. N.Y. 2008).
It is true, as Petitioner contends, that there are "other murals" that the Department has identified as being in violation of Section 479.07(1), Florida Statutes, but has "allowed to remain" displayed; however, it is also true that the Department has taken no action to remove any mural of Petitioner's. As a result, Petitioner's murals have been "allowed to remain" displayed (just like the "other murals" Petitioner points to in making its "selective enforcement" argument).
This has occurred notwithstanding that the Legislature, through Section 479.105, Florida Statutes, has delegated to the Department the specific power and duty to remove "[s]ign[s] . . . erected, operated, or maintained without the permit required by [Section] 479.07(1), [Florida Statutes] having been issued by the [D]epartment." Section 479.105, Florida Statutes provides, in pertinent part, as follows,
Upon a determination by the department that a sign is in violation of s. 479.07(1),
the department shall prominently post on the sign face a notice stating that the sign is illegal and must be removed within 30 days after the date on which the notice was posted. However, if the sign bears the name of the licensee or the name and address of the nonlicensed sign owner, the department shall, concurrently with and in addition to posting the notice on the sign, provide a written notice to the owner, stating that the sign is illegal and must be permanently removed within the 30-day period specified on the posted notice. The written notice shall further state that the sign owner has a right to request a hearing, which request must be filed with the department within 30 days after the date of the written notice.
However, the filing of a request for a hearing will not stay the removal of the sign.
If, pursuant to the notice provided, the sign is not removed by the sign owner within the prescribed period, the department shall immediately remove the sign without further notice; and, for that purpose, the employees, agents, or independent contractors of the department may enter upon private property without incurring any liability for so entering.
For purposes of this subsection, a notice to the sign owner, when required, constitutes sufficient notice; and notice is not required to be provided to the lessee, advertiser, or the owner of the real property on which the sign is located.
If, after a hearing, it is determined that a sign has been wrongfully or erroneously removed pursuant to this subsection, the department, at the sign owner's discretion, shall either pay just compensation to the owner of the sign or reerect the sign in kind at the expense of the department.
* * *
(3) The cost of removing a sign, whether by the department or an independent contractor, shall be assessed against the owner of the sign by the department.
Pursuant to the plain meaning of Section 479.105, Florida Statutes, the Department is required to "immediately" remove an illegal, unpermitted sign if it has not been "permanently" removed by the sign owner "within 30 days after the date on which notice was posted," regardless of whether the sign owner has requested an administrative hearing during that time period.16 Although Notice Number T144MB was issued more than a year ago, the Department, in derogation of its statutory responsibility, has refrained from exercising its enforcement authority under the statute to remove any of the murals (advertising different Anheuser-Busch products) that have been on the east exterior wall of the Hotel since the issuance of the notice. In light of the Department's failure to take such removal action (which is the only tool available to it to enforce violations of Section 479.07(1), Florida Statutes), what we have in the instant case is, not selective enforcement as Petitioner claims, but actually no enforcement at all. Compare
with Dawson v. City of New York, No. 97 Civ. 5347 (TPG), 2001
U.S. Dist. LEXIS 6503 *13 (S.D. N.Y. May 17, 2001)("Neither of these incidents can constitute selective enforcement because no enforcement action was taken against plaintiff.").
That is not to say that the Department has not responded differently to the mural display by Petitioner on the east exterior wall of the Hotel (which is the subject of the instant case) than it has to other wall murals in Miami-Dade County that it has determined preliminarily, through its investigatory process, to be in violation of Section 479.07(1), Florida Statutes. In fact, there has been such differential treatment--the Department has referred the instant case to DOAH for an administrative hearing and continues to actively litigate the issues raised in Notice Number T144MB, whereas it has not made any such referrals in the "open cases" involving the wall murals located in wall mural districts created by the Miami Ordinance, opting instead to stay these "open cases" indefinitely pending an "effective control" determination by the Federal Highway Administration.17 It has not been shown, however, that this differential treatment is the product of any invidious motivation on the part of the Department. Absent such a showing, no equal protection violation can be found.
But even if Petitioner had established that it is the victim of impermissibly motivated disparate treatment, the appropriate response from the Department to such a showing would be, not to dismiss Notice Number T144MB and take no action against the Mural, but to equalize the situation by vacating the stay in the other cases and taking enforcement action against
the murals involved in those cases. To do otherwise would ignore and thwart the will of the Legislature, as clearly expressed in Section 479.105, Florida Statutes, that signs "erected, operated, or maintained without the permit required by [Section] 479.07(1), [Florida Statutes] having been issued by the [D]epartment, . . . shall be removed." See Divosta and Company, Inc. v. Department of Transportation, No. 98-5401, 1999 Fla. Div. Adm. Hear. LEXIS 5372 *17 (Fla. DOAH May 12, 1999)(Recommended Order)("[An administrative agency] has an obligation to not repeat its previous mistakes and to carry out the Legislature's will and intent, as expressed in the statute. To hold otherwise would, in effect, give the agency authority it should not have: the authority to vitiate an enactment of the Legislature by its actions.").
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department of Transportation issue a Final Order finding that the Mural on the east exterior wall of the City Inn Hotel is an illegal sign subject to removal pursuant to Section 479.105, Florida Statutes.
DONE AND ENTERED this 25th day of August, 2009, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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
Filed with the Clerk of the Division of Administrative Hearings This 25th day of August, 2009.
ENDNOTES
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2009).
2 The final hearing was originally scheduled for May 21, 2009, but was continued at Petitioner's request.
3 There are three such districts: the Design District, the Health District, and the CBD District.
4 Proposed Florida Administrative Code Rule 14-10.025, which purported to implement the version of Section 479.156, Florida Statutes, in effect prior to the statute's amendment in 2009, was withdrawn by the Department on August 7, 2009, before ever becoming effective.
5 The wall murals cited in these cases are on the north and east exterior walls of the structure located at 100 North Biscayne Boulevard (Department Case No. 06-093); the south and west exterior walls of the structure located at 1040 Biscayne Boulevard (Department Case No. 06-209); the east and west exterior walls of the structure located at 3601 North Federal Highway (Department Case No. 07-002); and the east and west
exterior walls of the structure located at 1236 North Miami Avenue (Department Case No. 08-017).
6 Petitioner also operates a "used car lot" adjacent to the Hotel.
7 There was no mural on the east exterior wall of the Hotel at the time of the final hearing in DOAH Case No 06-3683. The "Krieger watches" mural that had been there at the time of the issuance of Amended Notice Number 1005005La had been removed by Petitioner and, unlike the murals that had been on the north and south exterior walls, had not been replaced.
8 Section 479.07(8)(d), Florida Statutes, was incorrectly cited by the Department. It applies only to the removal of signs that were once permitted by the Department and the permit has expired and not been renewed. The wall murals that the Department, in its Final Order, ordered Petitioner to remove were not such signs (as Judge Hart found in her Finding of Fact 14).
9 Petitioner acknowledged in its Amended Request for Administrative Hearing filed in the instant case that it was receiving such rental income pursuant to a contract, when it stated that "removal of its wall mural . . . would impair obligations under contract and would constitute a deprivation of lawful revenues "
10 What Anheuser-Busch "stor[ed]" in the Hotel, the evidentiary record does not reveal.
11 Chapter 479, Florida Statutes, in addition to delegating regulatory responsibility to the Department, also addresses, in three statutes that are grouped together, Sections 479.15, 479.155, and the previously mentioned 479.156, Florida Statutes, the regulation of signs by local authorities.
Section 479.15, Florida Statutes, is entitled, "Harmony of regulations." It provides, in Subsection (1) thereof, as follows:
No zoning board or commission or other public officer or agency shall issue a permit to erect any sign which is prohibited under the provisions of this chapter or the rules of the department, nor shall the department issue a permit for any sign which
is prohibited by any other public board, officer, or agency in the lawful exercise of its powers.
It has been said that this "statute contemplates that no zoning ordinance may stand that is less stringent than Chapter 479," but that it also "clearly contemplates that municipalities may enact stricter rules than those imposed by the state
law . . . ." Lamar-Orlando Outdoor Advertising v. City of Ormond Beach, 415 So. 2d 1312, 1320-1321 (Fla. 5th DCA 1982);
see also City of Lake Wales v. Lamar Advertising Association of Lakeland, Florida, 414 So. 2d 1030, 1032 (Fla. 1982)("We approve the district court's holding that the state highway beautification program does not preempt municipal regulations which establish more stringent requirements than those set out in chapter 479, Florida Statutes"); Florida Department of Transportation v. E.T. Legg & Co., 472 So. 2d 1336 (Fla. 4th DCA 1985)(held that "fact that the [outdoor advertising] signs were properly licensed by the City of Pembroke Park" did not divest the Department of its regulatory authority over such signs under Chapter 479); and La Pointe Outdoor Advertising v. Florida Department of Transportation, 382 So. 2d 1347 (Fla. 4th DCA 1980), approved, 398 So. 2d 1370 (Fla. 1981)(held that outdoor advertising sign was never "lawfully in existence" under Chapter 479, notwithstanding that sign owner had received county building permit for sign).
Section 479.155, Florida Statutes, is entitled, "Local outdoor advertising or sign ordinances." It provides as follows:
The provisions of this chapter shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances.
(Sections 125.0102 and 166.0425, Florida Statutes, similarly provide, "Nothing in chapter 78-8, Laws of Florida, shall be deemed to supersede the rights and powers of municipalities and counties to establish sign ordinances," and they add the caveat (consistent with Section 479.15, Florida Statutes) that "such ordinances shall not conflict with any applicable state or federal laws.")
The most recent of the three statutes in the group is Section 479.156, Florida Statutes, which deals specifically with signs that constitute "wall murals." The statute was created by the
Florida Legislature through the passage of Chapter 2007-196, Laws of Florida. It became law on July 1, 2007, and from that date until June 30, 2009, provided as follows:
Wall murals
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).
The 2008 Legislature passed revisions to the statute that would have taken effect in 2008, but the legislation was vetoed by the Governor. These same revisions were passed by the 2009 Legislature, and they took effect July 1, 2009. Since that date, Section 479.156, Florida Statutes, has provided as follows:
Wall murals.
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. Whenever a municipality or county exercises such control and makes a determination of customary use pursuant to
23 U.S.C. s. 131(d), such determination shall be accepted in lieu of controls in the agreement between the state and the United States Department of Transportation, and the department shall notify the Federal Highway Administration pursuant to the agreement, 23
U.S.C. s. 131(d), and 23 C.F.R. s. 750.706(c). 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 when required by federal law and federal regulation under the agreement between the state and the United States Department of Transportation and 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).
12 Section 479.105(1)(e), Florida Statutes, provides as follows:
However, if the sign owner demonstrates to the department that:
The sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for a period of 7 years or more;
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;
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
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.
At the final hearing, Petitioner, through counsel, stated that it was "not asking for a permit at this time." Section 479.105(1)(e), Florida Statutes, therefore, is inapplicable to the instant case.
13 Petitioner does not claim that the Mural is exempt from the permitting requirements of Section 479.07(1), Florida Statutes, under any of the other 14 subsections of Section 479.16, Florida Statutes.
14 Section 479.11(5), Florida Statutes, provides as follows:
No sign shall be erected, used, operated, or maintained:
Which displays intermittent lights not embodied in the sign, or any rotating or flashing light within 100 feet of the outside boundary of the right-of-way of any highway on the State Highway System, interstate highway system, or federal-aid primary highway system or which is illuminated in such a manner so as to cause glare or to impair the vision of motorists or otherwise distract motorists so as to interfere with the motorists' ability to safely operate their vehicles. If the sign is on the premises of an establishment as provided in s. 479.16(1), the local government authority with jurisdiction over the location of the sign shall enforce the provisions of this section as provided in chapter 162 and this section.
15 "Remove," as that term is used in Section 479.105, Florida Statutes, and elsewhere in Chapter 479, Florida Statutes, "means to disassemble, transport from the site, and dispose of sign materials by sale or destruction." § 479.01(16), Fla. Stat. Merely changing the "advertising message" of a sign does not constitute removal of the sign and erection of a new one (as the parties in the instant case apparently recognize, as evidenced by Stipulation 6 in their Joint Post-Hearing Stipulation, which reads: "The parties agree that the change to the advertisement does not render the issues presented moot and seek a recommended order on the merits of this case"). See § 479.01(6), Fla. Stat. ("'Erect' means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign.").
16 It is a general principle of Florida administrative law that, "[u]ntil proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a
person." Florida League of Cities, Inc. v. Administration Commission, 586 So. 2d 397, 414 (Fla. 1st DCA 1991). Section 479.105, Florida Statutes, with its provision for mandatory sign removal 30 days after the posting of the notice of violation, whether or not an administrative hearing has been requested and held, creates an exception to this general principle. Compare with H. B. Walker v. Department of Transportation, 707 So. 2d 790, 791 (Fla. 1st DCA 1998)(held that, pursuant to Section 316.3025, Florida Statutes, "DOT has statutory authority to impound a motor vehicle for failure to pay a civil penalty involving a motor carrier terminal audit during the pendency of administrative proceedings pursuant to section 120.57(1), Florida Statutes, and prior to rendition of a final order in those proceedings").
If an administrative hearing has been timely requested, a determination will be made whether the "sign has been wrongfully or erroneously removed." (The statute contemplates that the outcome of any hearing held at the request of the sign owner will be decided after the sign has been removed.) Should it be determined, following the hearing, that the Department acted "wrongfully or erroneously" in removing the sign, the Department must either, at the sign owner's option, "pay just compensation to the owner of the sign or reerect the sign in kind at the expense of the [D]epartment." Should a contrary determination be made, an assessment for the "cost of removing [the] sign" will be made against the sign owner.
17 These "open cases" have merely been stayed, not dismissed.
COPIES FURNISHED:
Paul Sexton, Esquire Melvin L. Wilson, Esquire
Williams, Wilson and Sexton, P.A.
215 South Monroe Street Tallahassee, Florida 32301
Susan Schwartz, Esquire Assistant General Counsel Department of Transportation
Haydon Burns Building, Mail Stop 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
James C. Myers, Clerk of Agency Proceedings Department of Transportation
Haydon Burns Building, Mail Stop 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Alexis M. Yarbrough, General Counsel Department of Transportation
Haydon Burns Building, Mail Stop 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Stephanie C. Kopelousos, Secretary Department of Transportation
Haydon Burns Building, Mail Stop 57 605 Suwannee Street
Tallahassee, Florida 32399-0458
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 18, 2010 | Agency Final Order | |
| Aug. 11, 2010 | Opinion | |
| Aug. 25, 2009 | Recommended Order | The display of an unpermitted mural on hotel advertising beer product not "sold, produced, manufactured, or furnished" on premises of hotel, for which hotel owner received rental income, was illegal, and the mural was subject to removal. |
