STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OUTLOOK MEDIA OF SOUTH FLORIDA, )
)
Petitioner, )
)
vs. ) Case No. 09-3444
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent, )
)
and )
)
CBS OUTDOOR, INC., )
)
Intervenor. )
)
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 April 15, 2010, by video teleconference at sites in Miami and Tallahassee, Florida.
APPEARANCES
For Petitioner: Matias R. Dorta, Esquire
Tew Cardenas LLP
1441 Brickell Avenue, 15th Floor Miami, Florida 33131-3407
For Respondent: Kimberly Cark Menchion, Esquire
Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450
For Intervenor: Glenn N Smith, Esquire
Ruden McClosky, P.A.
200 East Broward Boulevard, 15th Floor Post Office Box 1900
Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE
What final agency action should the Department of Transportation take on Petitioner's Application for Outdoor Advertising Permit.
PRELIMINARY STATEMENT
On May 19, 2009, the Department of Transportation (Department) issued a Notice of Denied Outdoor Advertising Permit Application, advising Petitioner that its application for an outdoor advertising sign permit for a proposed double-faced sign located off of "SR 9 (I-95), 10 feet S of W Flagler St
(328-34 Flagler St)" (Petitioner's Application) was "not approved for the following reasons":
Incorrect information at Numbers: Parcel IDs do not match
[s.479.08, F.S.]
Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP).
In conflict with permitted sign(s), tag#(s): CF412/413. Held by: CLEAR CHANNEL OTDR-S FLORIDA DIV
[S.479.07(9)(a),1., & 2. F.S.]
* * *
Other: Local government form must be completed not more than six (6) months prior to receipt.
On June 10, 2009, Petitioner filed with the Department a Petition for Formal Administrative Hearing, requesting a "formal administrative hearing" on the Department's preliminary denial of its Application. The Department referred the matter to DOAH on June 23, 2009.
A week later, on June 30, 2009, Petitioner filed with DOAH an Amended Petition for Formal Administrative Hearing, in which it contended that the Department should approve its application because:
[Petitioner] has corrected the scrivener's error on the folio number;
the outdoor advertising sign proposed in [its] Application is more than 1,000 feet from any other outdoor advertising sign on the same side of the highway, in accordance with Florida Statutes Section 479.07(9) as amended by HB 1021; (3) the local government permission on FDOT Form 575-070-04 is extended for two years, in accordance with Section 14 of SB 360; and (4) the fact that the local government permission was issued more than 6 months prior to the FDOT application is not a legal basis for denial of an outdoor advertising application.
On August 18, 2009, Intervenor filed with DOAH a Petition for Leave to Intervene in Alignment with Respondent, Florida Department of Transportation, which was granted by Order issued September 1, 2009.
The final hearing, as noted above, was held on April 15, 2010.2 At the outset of the hearing the parties stipulated that the "errors in the parcel identification" contained in Petitioner's Application "are not in dispute" and are not "a continuing reason for the Department['s] denying the Application."
A total of seven witnesses testified at the hearing: Santiago Echemendia, Esquire; Mario Prats; Matthew Barnes; Robert Jesse; Lynn Holschuh; Joseph Little; and Lourdes Slazyk. In addition to the testimony of these seven witnesses, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1 through 9, 11, 13, 15, and 16;
Respondent's Exhibits 1 through 9; and Intervenor's Exhibits 1 through 26, and 30. At the close of the evidentiary portion of the hearing on April 15, 2010, the undersigned announced on the record that, pursuant to the unopposed request of Petitioner, he would give the parties 45 days from the date of the filing of the hearing transcript with DOAH to file their post-hearing submittals.
The hearing Transcript was filed with DOAH on May 5, 2010. On that same day, Petitioner filed a Notice of Filing
Supplemental Evidence, which read as follows:
Petitioner Outlook Media of South Florida, LLC ("Outlook") hereby submits as supplemental evidence the attached[,] a
certified copy of a[n April 30, 2010] Special Purpose Survey, Billboard Spacing, prepared and certified by Kissim[m]ee Valley Surveying & Mapping, Inc. in support of its claim that the distance requirements of Rule 14-10.006(4) are satisfied in this matter.
On May 11, 2010, the Department filed a Response to Petitioner's Notice of Filing Supplemental Evidence, contending that the undersigned should not consider Petitioner's "supplemental evidence" for the following reasons:
The formal administrative hearing regarding this matter was scheduled and heard on April 15, 2010. Once the hearing concluded, the record was closed with the limited exception of filing exhibits only identified during the hearing by Petitioner and agreed to by the Department and the Intervenor.
The Petitioner proposes to file a certified copy of a Special Purpose Survey, Billboard Spacing, prepared by Kissimmee Valley Surveying & Mapping, Inc., in support of its claim that the distance requirements of Rule 14-10.006(4), F.A.C. are satisfied.
The proposed exhibit, identified in Petitioner's Notice of Filing, was not one of the documents i[]dentifed in the hearing by Petitioner. The Petitioner has not been granted leave to submit new evidence after the close of the record.
Furthermore, the Department would be prejudiced by considering the additional evidence. The Department has not had an opportunity to subpoena the surveyor, cross
examine the surveyor, nor offer rebutta[l] testimony or exhibits.
The Department objects to Petitioner's improper attempt to file additional exhibits without being granted leave to reopen the record.
On May 12, 2010, Intervenor filed its response to Petitioner's Notice of Filing Supplemental Evidence, stating the following "[o]bjections" thereto:
The Survey was prepared fifteen (15) days after the close of the Final Hearing. Absolutely, no groundwork as to the foundation and authentication of the Survey was made either during or after the Final Hearing as to this Survey. Without the proper foundation and authentication, the Survey is not properly admissible. Specifically, and without limitation:
CBS was not afforded an opportunity to cross-examine anyone with regards to:
the methods, techniques, etc. surrounding the creation of the Survey;
the qualifications of the listed surveyor, Willard Beekman;
an explanation of "Main Travel Way" as identified on the Survey;
(i[v]) whether and to what extent the location of the "Applicant's Stake," as identified on the Survey, is in the exact same location as when the Florida Department of Transportation ("FDOT") made [its] initial survey on May 8, 2009; and
the Survey is not self-authenticating.
The Survey is not listed on the Exhibit list pursuant to the Petitioner's Pre-
Hearing Statement, filed April 14, 2010, nor is the Survey listed on any of Petitioner's subsequent Amended Exhibit Lists, filed respectively on April 14, 2010, April 15,
2010 and April 19, 2010.
[5]. Neither Willard L. Beekman, nor anyone from Kissimmee Valley Surveying & Mapping, Inc., is listed on the Witness List pursuant to the Petitioner's Pre-Hearing Statement filed April 14, 2010.
On May 12, 2010, Petitioner filed a Memorandum in Opposition to Objection Regarding Supplemental Evidence and Request to Reopen Hearing and/or Record, asking the undersigned to "re-open the hearing to admit the certified Survey [prepared by Mr. Beekman of Kissimmee Valley Surveying & Mapping, Inc.] as evidence in this proceeding and allow the cross examination of
[Mr. Beekman]."
On May 6, 2010, the day after it had filed its Notice of Filing Supplemental Evidence, Petitioner filed a Notice of Filing Supplemental Authority, in which it stated the following:
Petitioner Outlook Media of South Florida, LLC ("Outlook") hereby submits as supplemental authority the attached House Amendment Bill No. CS/SB 1752 (2010), approved for filing on April 27, 2010, specifically referencing Section 45 on Page 135, in support of its argument that its Local Government Permission has been extended, and remains valid. Section 45 of House Amendment Bill No. CS/SB 1752 (2010) further clarifies that any development order issued by a local government and building permit which has an expiration date from September 1, 2008, through January 1, 2012, is extended and renewed for a period of 2
years after its previously scheduled date of expiration. This extension is in addition to the 2-year permit extension provided under Section 14 of Senate Bill 360 [which was offered and received into evidence at the April 15, 2010, final hearing in this case as Petitioner's Exhibit 11].
On May 12, 2010, Intervenor filed a Motion to Strike Petitioner's Supplemental Authority, making the following argument in support of its request:
Pursuant to Rule 1.440(f), Fla. R. Civ. P., a party may move to strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.
HB 1752 is immaterial as it is a brand new law which raises brand new issues before the Court in this matter.
Further, the introduction of HB 1752 is redundant. Procedurally, HB 1752 is the same as Section 14 of Senate Bill 360 ("SB 360"). The Respondent, Department of Transportation, has already denied Outlook's requested extension pursuant to SB 360.
The Department did not file any pleading responsive to Petitioner's Notice of Filing Supplemental Authority.
Argument on Petitioner's Notice of Filing Supplemental Evidence and its Notice of Filing Supplemental Authority was heard by telephone conference call on May 13, 2010. On May 14, 2010, the undersigned issued an Order on Pending Motions, which provided, in pertinent part, as follows:
Upon consideration it is hereby ORDERED:
Official recognition will be taken of the legislative enactment attached to Petitioner's Notice of Filing Supplemental Authority. The parties shall, in their proposed recommended orders, address the issue of how, if at all, this legislation [as well as Section 14 of Senate Bill 360] impact the instant case.
Petitioner's request that the record be reopened to receive into evidence the written survey attached to Petitioner's Notice of Filing Supplemental Evidence and to take the testimony of the surveyor who prepared that survey is denied. See Miami Jewish Home & Hosp. for the Aged v. Agency for Health Care Admin., 710 So. 2d 77, 78 (Fla. 3d DCA 1998); Lawnwood Med. Ctr. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996); Berry v. Dep't of Envtl. Regulation, 530 So. 2d 1019, 1022 (Fla. 4th DCA 1988); Southland Corp. v. Anaya, 513 So. 2d 203 (Fla. 1st DCA 1987); Collier Med. Ctr., Inc. v. Dep't of Health & Rehabilitative Services, 462 So. 2d 83, 86 (Fla. 1st DCA 1985); and Dep't of Transp. v. J. W. C. Co., 396 So. 2d 778, 784 (Fla. 1st DCA 1981). The undersigned will not consider this survey in making his findings and recommendation in this case.
On May 14, 2010, the Department filed a motion requesting that "the record be reopened to admit the certified copy of Form 575-070-04, with the revision date of 02/09" appended to the motion. The motion's certificate of service reflected that a copy of the motion was "furnished by mail" on May 14, 2010, to counsel for Petitioner and to counsel for Intervenor. No response to the motion having been filed by either Petitioner or
Intervenor, the undersigned, on May 27, 2010, issued an Order, which provided, in pertinent part, as follows with respect:
Upon consideration, the motion is hereby GRANTED. The record is reopened for the limited purpose of "admit[ting] the certified copy of Form 575-070-04, with the revision date of 02/09" appended to the motion. The undersigned will consider this "certified copy" in making his recommendation in the instant case.
On June 11, 2010, Petitioner filed a motion requesting an extension of the deadline for the filing of proposed recommended orders in the instant case. The motion was unopposed by Respondent and opposed by Intervenor. A hearing on the motion was held by telephone conference call on June 16, 2010, after which the undersigned issued an Order extending the deadline for the filing of proposed recommended orders to July 6, 2010, and denying Petitioner's motion to the extent that it sought a lengthier extension.
On June 28, 2010, Tew Cardenas, LLC, through Matias Dorta, Esquire, filed a motion seeking leave to withdraw as counsel of record for Petitioner in the instant case on the ground that Petitioner was "in the process of retaining new counsel to represent it in this matter." In its motion, Tew Cardenas further requested, on behalf of Petitioner, "an additional extension of time in which to submit its proposed recommended order ('PRO') to the Administrative Law Judge." A hearing on
the motion was held by telephone conference call on July 1, 2010. During this telephonic motion hearing, respective counsel for Respondent and Intervenor indicated that they did not oppose Tew Cardenas' being granted leave to withdraw as Petitioner's counsel of record. Furthermore, they, along with Mr. Dorta (on behalf of Petitioner), agreed to an extension, to July 29, 2010, of the deadline for the filing of proposed recommended orders.
On July 2, 2010, the undersigned issued an Order granting Tew Cardenas leave to withdraw as Petitioner's counsel of record in this case and extending the deadline for the filing of proposed recommended orders to July 29, 2010.
Petitioner,4 the Department, and Intervenor timely filed their Proposed Recommended Orders on July 29, 2010.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The proposed sign that is the subject of the instant controversy (Proposed Sign) is located off of I-95 in the City of Miami (City) at 328-334 Flagler Street on a parcel of land leased by Petitioner from CanPartners Realty (CanPartners Parcel).
Section 10.4.5 of the City's Zoning Ordinance (Section 10.4.5), which has been in effect since 2002, prohibits "new
signs of outdoor advertising," except in limited circumstances. It provides, in pertinent part, as follows:
For the purposes of this section, "Outdoor advertising signs" are signs used in the conduct of the outdoor advertising business; an outdoor advertising business, for the purpose of this section, is defined as the business of receiving or paying money for displaying signs where the sign copy does not pertain to the use of the property, a product sold, or the sale or lease of the property on which the sign is displayed and which does not identify the place of business as purveyor of the merchandise or services advertised on the sign.
Except as otherwise provided in Articles 4 and 10 and/or the City Code, or, pursuant to this subsection, no new freestanding "Outdoor advertising signs," as defined above shall be allowed.
* * *
Notwithstanding any provision of this Zoning Ordinance to the contrary, permits for outdoor advertising signs may be issued pursuant to a Settlement Agreement authorized by Resolution passed by the City Commission, in conjunction with the settlement of related litigation, which expressly authorizes issuance of such permits for said outdoor advertising signs, and then only under the terms and conditions of settlement agreements that result in a net reduction in the party to the settlement's number of outdoor advertising signs located in the City of Miami. . . .
The City has entered into "Settlement Agreements" of the type described in the last paragraph of Section 10.4.5 with three sign owners: Carter Pritchett Hodges, Inc., d/b/a Carter
Outdoor Advertising, Inc.; Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor; and Intervenor.
The City does not have a such a "Settlement Agreement" with Petitioner.
The City entered into its Settlement Agreement with Intervenor (City/CBS Settlement Agreement) on July 18, 2008.
The City/CBS Settlement Agreement contains the following provisions, among others:
4. Amended Permits. In recognition of CBS's [Intervenor's] removal of the numerous Sign structures and Sign faces described in this Agreement and waiver of just compensation thereof, the City will amend a maximum of 15 existing sign permits (the "Amended Permits") to allow CBS to transfer the permit rights associated with such Signs to new locations with a maximum of two (2) Sign faces each on the terms and conditions set forth below:
The City will amend up to a maximum of
15 permits for Signs based on CBS's removal of Signs on a two for one basis: for every two bulletin faces removed, one bulletin face may be erected with an Amended
Permit. . . .
* * *
c. Upon application by CBS showing compliance with the provisions of this paragraph, the City will amend existing Sign permits to allow the transfer of permit rights associated with such Sign or Signs to locations within the same or a less restrictive Zoning District. For all Initial Amended Permits and Amended Permits, CBS will submit FDOT Form 575-010-04 to the City, which will be stamped on the date
received. The City's signature on the FDOT Form 575-010-04 shall constitute approval of the location of the sign, and no further approvals from the City shall be required.
All Sign permits will be processed "first in, first out," such that no other FDOT Forms may be signed or authorized for a subsequent application which would interfere with the location secured by a previously approved FDOT Form 575-010-04. If an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application.
* * *
19. Miscellaneous.
* * *
f. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of the any successor or permitted assigns of the parties hereto.
CBS shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by CBS will be valid unless: (1) the assignee shall execute an Agreement to be bound by the terms and conditions of this Agreement and to accept all of the rights and obligations of CBS under this Agreement; and (2) the assignment is approved in writing by the City Commission, which approval shall not be unreasonably withheld, delayed or conditioned. The parties acknowledge that the City Commission shall have the right to reject proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any such assignment shall not relieve CBS of its obligations under this Agreement . . . . Any attempted assignment in violation of this Section shall be void.
In anticipation of the finalization of the City/CBS Settlement Agreement, Intervenor (through Joseph Little) and Petitioner (through Harkley Thorton) had signed, on May 1, 2008, a Letter of Understanding (LOU) "set[ting] forth the understanding between [Intervenor] and [Petitioner] concerning new sign locations to be utilized in conjunction with the Settlement Agreement between [Intervenor] and the City of Miami."
The first numbered paragraph of the LOU explained:
CBS is negotiating and attempting to finalize a Settlement Agreement with the City whereby the City will issue 15 amended permits for the construction of new monopole signs with double faces, on expressways located within the City, in return for which CBS will remove 2 existing (or previously removed) sign faces for each new sign face constructed pursuant to an Amended Permit, subject to the terms and conditions of the Settlement Agreement between CBS and the City.
Paragraph 2 of the LOU read, in pertinent part, as
follows:
With respect to the Settlement Agreement with the City, CBS and OM [Petitioner] agree as follows:
* * *
Under the Settlement Agreement, CBS seeks to obtain 7 Initial Amended Permits (as defined in the Settlement Agreement) one of which is tentatively agreed to be located in Jose Marti Park. Provided there is no term in the Settlement Agreement and the
City does not otherwise require CBS to develop a site in the Jose Marti Park, CBS will abandon its proposed Jose Marti Park site and instead accept a site owned by Brickell Land Development Company, located at approximately 300 SW 8th Street (the "Brickell Site"), which is or will be subject to a lease with OM that allows construction and operation of a sign in accordance with the terms of paragraph (2c) below. . . .
Provided OM obtains four (4) additional sites for placement of signs pursuant to Amended Permits under the Settlement Agreement, CBS agrees to accept said four sites provided CBS deems each site to be commercially viable. . . .
For each of the sites accepted by CBS, CBS will enter into a sub-lease agreement with OM, whereby OM will be the sub-lessor and CBS will be the sub-lessee. . . .
Provided that OM produces the Brickell Partners Site and four (4) additionally Commercially Viable Locations, CBS will assign the rights to one (1) of its amended permits under the Settlement Agreement with the City. CBS will assign to OM, and OM will assume, CBS's rights and obligations under the Settlement Agreement to said amended permit except for CBS'[s] obligations pursuant to paragraphs (7a-7d), (8a), and (12a). CBS will provide for the removal of two (2) of its existing sign structures to allow the City to issue the said Amended Permit to OM under the Settlement Agreement.
* * *
h. CBS'[s] acceptance of the four (4) Commercially Viable Locations referenced in 2c above is expressly conditioned upon the City's approving all locations on Exhibits B and B-1, as amended from time to time, as
appropriate removals for Amended Permits in the Settlement Agreement.
The penultimate paragraph of the LOU (Paragraph 6) provided as follows:
This letter is a Letter of Understanding and binding between the parties and establishes the major business points and conditions of the Parties' agreement for this transaction. However, it is not all inclusive in that it does not contain all the deal points. The Parties agree to expand upon this Letter of Understanding in good faith to prepare a full agreement that can be executed within thirty (30) days of the date of this Letter of Understanding. Such agreement shall be consistent with the terms of this Letter of Understanding and contain such further terms and conditions as are mutually acceptable to the Parties. However, the failure of the Parties to complete a full agreement shall not invalidate the terms of this Letter of Understanding or excuse either Party from performing its obligations and responsibilities as set forth herein.
The record is devoid of evidence that Intervenor and Petitioner ever executed a "full agreement," as contemplated by paragraph 6 of the LOU.
Intervenor has not executed (pursuant to Paragraph 2e. of the LOU), nor has the City Commission approved (pursuant to Paragraph 19f. of the City/CBS Settlement Agreement), any assignment to Petitioner of Intervenor's rights under the City/CBS Settlement Agreement (although Petitioner believes that it is entitled to such an assignment and has so argued in
circuit court litigation in which it is currently involved with Intervenor).
On May 2, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows:
CBS Outdoor, Inc. [Intervenor] and Outlook Media of South Florida, LLC [Petitioner] have signed a letter of understanding dated May 1, 2008 (The "Agreement"). Please accept this letter as confirmation that in accordance with the terms of the Agreement, CBS Outdoors, Inc. consents to Outlook Media of South Florida, LLC filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on our behalf.
Thereafter, Petitioner submitted to the City's Zoning Administrator, Lourdes Slazyk, (on the version of FDOT Form 575- 010-04 then in effect) Petitioner's Application, requesting that Ms. Slazyk complete and sign the "Local Government Permission" section of the form. Obtaining such "Local Government Permission" is among the prerequisites for receiving an outdoor advertising sign permit from the Department. To erect an outdoor advertising sign in the City after the Department issues a permit, a City building permit (which is "something other than" the "Local Government Permission" referred to above) is required.
Ms. Slazyk completed and signed the "Local Government Permission" section of the form, as requested, on May 22, 2008.
It was not until almost a year later that Petitioner's Application was submitted to the Department.
In completing the form, Ms. Slazyk checked the box indicating that the "outdoor advertising sign identified in this application: [was] in compliance with all duly adopted local ordinances and has been or will be issued the necessary permits." She did so based upon her understanding that the application (which named Petitioner as the applicant) was actually being filed by Petitioner on behalf and with the consent of Intervenor (in accordance with Mr. Little's May 2, 2008, letter) and that Petitioner was "traveling under" the City/CBS Settlement Agreement. Had Intervenor not notified the City that Petitioner was, with Intervenor's consent, "filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on [Intervenor's] behalf,"
Ms. Slazyk would not have checked the "compliance" box on the form, given the requirement of Section 10.4.5 of the City's Zoning Ordinance that "permits for outdoor advertising signs" may be issued only "pursuant to a Settlement Agreement" of the type described in Section 10.4.5 (to which Petitioner, unlike Intervenor, was not a party).
On August 28, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows:
CBS Outdoor, Inc. herewith withdraws its blanket letter of consent dated May 2, 2008 authorizing the City to approve FDOT application forms by Outlook Media of South Florida, LLC on our behalf. A copy of that letter is attached.
Henceforth, any FDOT outdoor advertising application form submitted to the City by Outlook must include a specific authorization from CBS Outdoor indicating our approval and authorizing the City to process the FDOT form pursuant to our Settlement Agreement with the City.
Please feel free to contact me if you have any questions.
By letter dated October 24, 2008, Intervenor (through its attorney, Glenn Smith, Esquire), advised the City, among other things, that it was "withdraw[ing]" certain applications for outdoor advertising sign permits from the Department, including Petitioner's Application, that either it or Petitioner, on Intervenor's behalf, had previously submitted to the City to obtain the "Local Government Permission" required for such a Department permit.
On February 13, 2009, Petitioner (through its attorney, Amanda Quirke, Esquire) sent a letter to Ms. Slazyk, which read, in pertinent part, as follows:
As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government
approval within 6 months of the application to FDOT. Therefore, Outlook Media is requesting the renewal of the approval of the City of Miami for the following locations:
* * * CanPartners Realty
* * *
Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped received copies for our files. Thank you for your assistance.
Intervenor had not authorized Petitioner to make such a request on Intervenor's behalf. Accordingly, (through
Mr. Smith) it sent Ms. Quirke the following letter, dated February 18, 2009:
As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is submitted in response to your February 13, 2009, letter to Lourdes Slazyk at the City of Miami ("City") seeking the approval of the City of the Renewal Applications. CBS has issued no authorization to OM [Petitioner] to submit the Renewal Applications to the City. Therefore, the February 13, 2009 Letter is ultra vires, and OM is directed to withdraw same. If OM desires to obtain CBS's authorization to process the Renewal Applications to the City, OM is directed to submit to CBS a written request for authorization to do so.
OM's written request for authorization should address, among other things, the following:
CBS's original authorization to OM to submit the FDOT Application to the City was to authorize OM to make submissions on behalf of CBS. Please confirm that any submission of Renewal Application by OM to the City will likewise be on behalf of CBS.
Many questions remain relative as the various locations identified in the February 13, 2009, Letter as to whether the locations are "commercially viable." See Attachment A hereto. Please contact the
undersigned to schedule a meeting to discuss resolution of these remaining questions.
Can Partners Realty: As you know, the City has agreed to approve the Lummis Site.
Therefore, the CanPartners Realty site is no longer under consideration and is not to be renewed. OM is hereby specifically
directed to take no action to renew the FDOT Application for this site.
CBS and its representative are available to discuss the February 13, 2009 Letter, the Renewal Applications and the contents of this letter. If OM desires to discuss same, please contact the undersigned for that purpose.
That same day (February 18, 2009), Intervenor (through Mr. Smith) also sent a letter to Ms. Slazyk, in which it stated the following:
As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is being sent to you on behalf of CBS in response to the February 13, 2009 Letter to you from counsel for OM.
In the February 13, 2009 Letter, counsel for OM requests approval by the City of Miami (the "City") of the Renewal Applications under the CBS Settlement Agreement with the City. Please be advised that CBS has not
authorized OM to present the Renewal Applications to the City. Therefore, CBS requests that the City take no action on the Renewal Application until the City receives further communications regarding same from CBS.
Notwithstanding Intervenor's directive (communicated in its February 18, 2009, letter to Ms. Quirke) that "the CanPartners Realty site . . . not . . . be renewed," on that same date (February 18, 2009), Petitioner (through Ms. Quirke) sent a follow-up letter to Ms. Slazyk, which read, in pertinent part, as follows:
In accordance with the request of CBS, please accept this revised request for the renewal of the outdoor advertising applications, originally submitted on February 13, 2009. This revised request is a clarification that Outlook is requesting the renewal of the approval of the following applications on behalf of CBS.
As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media of South Florida, on behalf of CBS, is requesting the renewal of the approval of the City of Miami for the following locations:
* * * CanPartners Realty
* * *
Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped, received copies for our files. Thank you for your assistance.
The following day, February 19, 2009, Ms. Slazyk wrote back to Ms. Quirke, stating the following:
I am in receipt of a faxed letter with back up from your office dated February 13, 2009 and faxed again, as modified, dated February 18, 2009 requesting renewal of certain outdoor advertising signs. I am
informing you that, per the attached letters from CBS, and their representatives, the request is not authorized.
Petitioner appealed Ms. Slazyk's denial of its renewal request to the City Zoning Board, which upheld the denial. Petitioner thereafter took a further appeal to the City Commission, but Petitioner subsequently withdrew this appeal.
It is the City's position "today" (as expressed by Ms. Slazyk at hearing) that Petitioner does not have "Local Government Permission" from the City for the Proposed Sign.
On May 4, 2009, almost a year after Ms. Slazyk had signed the "Local Government Permission" section of Petitioner's Application, Petitioner's Application was submitted to the Department.5
The Department contracts with Cardno TBE "to do physical inspections of potential advertising sites" that are the subject of permit applications.
For the past 11 years, Matt Barnes has been employed by Cardno TBE as an outdoor advertising inspector responsible for conducting such inspections for the Department.
Mr. Barnes was assigned the task of inspecting the CanPartners Parcel (the site where, according to Petitioner's Application, the Proposed Sign would be located).
Using two different distance measuring devices,6
Mr. Barnes measured the distance "along the highway [I-95]" from a point directly above the Proposed Sign location (as indicated by a "wooden stake [sticking] about two feet out of the ground" that had been placed there by Petitioner) to the "nearest permitted sign" on the same side of the "highway" (which was to the south and bore tag numbers 412 and 413).7 He "came up with 970 feet both times."
On May 19, 2009, the Department issued its Notice of Denied Outdoor Advertising Permit Application, announcing its intention to deny Petitioner's Application because, in pertinent part, the "[Proposed] [S]ign [did] not meet spacing requirements" and the "Local Government Permission" was given "more than six (6) months prior to [the Department's] receipt [of the application]." Petitioner subsequently requested a "formal administrative hearing" on the matter.
On May 21, 2009, Intervenor filed an Application for Outdoor Advertising Permit for a sign to be located at 350
Northwest Second Street in the City on a parcel leased to Intervenor by Lummus Park Associates, LLC (Lummus Sign). Because of its proximity to the location of the Proposed Sign, the Lummus Sign would violate minimum spacing requirements and thus not be permittable were Petitioner's Application to be
granted. Accordingly, Intervenor's application is being held in "pending status" by the Department until final action is taken on Petitioner's Application.8
On June 17, 2009, Petitioner (through one of its principals, Santiago Echemendia, Esquire) sent a letter to the City, which read, in pertinent part, as follows:
This law firm represents Outlook Media of South Florida, LLC ("Outlook"). As you may be aware, Section 14 of SB 360 provides that any local government issued development order or building permit that has an expiration date of September 1, 2008 through January 1, 2012, is extended and renewed for a period of two years following its date of expiration. In accordance with Section 4(c) of the Settlement Agreement between CBS Outdoor, Inc. and the City of Miami (attached), "[i]f an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application." FDOT also takes the position that the local government permission on FDOT Form 575-070-04 must be issued within 180 days of application to FDOT for an FDOT tag for a sign location.
On behalf of Outlook, pursuant to Section 14 of Senate Bill 360, please accept this letter as notification that Outlook is extending the local government permission
provided on FDOT Form 575-070-04 for the following locations:
* * * Site: CanPartners
Folio Number: 01-4137-036-0020
Local Government Permission: 05/22/08 FDOT 180 Day Expiration: 11/18/08
2 Year Extension of FDOT 180 Day Expiration: 11/18/10
Original 280 Day Expiration: 02/26/09
2 Year Extension of City of Miami Expiration: 02/26/11
* * *
This 2 year extension notification applies to extend both the FDOT 180 Day Expiration, as well as the 280 Day Expiration set forth in the CBS Settlement Agreement. Therefore, the expiration date for the aforementioned sign locations is extended until the dates listed in the columns entitled "2 Year Extension of FDOT 180 Day Expiration" and "2 Year Extension of City of Miami Expiration." A copy of the FDOT Form 575-070-04 for each of the sign locations is attached for your convenience. . . .
On October 5, 2009 (approximately five months after the filing of Petitioner's Application with the Department), the City Commission, on second reading, adopted a resolution (Resolution File Number 09-01061) to enable it to participate in the "pilot program" established by Section 479.07(9)(c), Florida Statutes, "under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if [certain] requirements . . . are met." The resolution, which is still in effect, provides as follows:
A RESOLUTION OF THE MIAMI CITY COMMISSION EXPRESSING ITS INTENTION TO PARTICIPATE IN A PILOT PROGRAM ALLOWING 1,000 FOOT SPACING OF OUTDOOR ADVERTISING SIGNS ALONG EXPRESSWAYS IN THE CITY OF MIAMI ("CITY"), SUBJECT TO CONDITIONS; FURTHER AUTHORIZING THE CITY MANAGER TO NOTIFY THE FLORIDA DEPARTMENT OF TRANSPORTATION OF THE CITY'S INTENTION TO PARTICIPATE IN SUCH PILOT PROGRAM.
WHEREAS, Section 10.4.5 of the Miami Zoning Ordinance prohibits new freestanding "Outdoor advertising signs" as defined therein, except for Outdoor advertising signs permitted pursuant to a Settlement Agreement that results in a net reduction in the number of Outdoor advertising signs located in the City of Miami (hereinafter "qualified settlement agreement"); and
WHEREAS, by separate Resolutions, the City Commission has authorized the City Manager on behalf of the City of Miami ("City") to enter into qualified settlement agreements with the following sign owners: Carter Pritchett Hodges, Inc. d/b/a Carter Outdoor Advertising, Inc. ("Carter"), Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor ("Clear Channel"), and CBS Outdoor, Inc. (hereinafter "CBS"); and
WHEREAS, at the time the qualified settlement agreements were approved by the City Commission, Section 479.07(9)(a), F.S. (2008), required new Outdoor advertising signs to be located at least one thousand five hundred feet from any other permitted sign on the same side on an interstate highway (hereinafter "1,500 foot spacing"); and
WHEREAS, by House Bill 1021, the Florida Legislature recently amended s.
479.07(9)(c), F.S., in the 2009 Legislative Session, to include the City within a pilot program permitting new Outdoor advertising signs on an interstate highway to be located
within one thousand feet from any other permitted sign on the same side of the interstate highway (hereinafter "1,000 foot spacing") under certain enumerated conditions, to wit:
"(c) Notwithstanding paragraph (a)(1), there is established a pilot program in Orange, Hillsborough, and Osceola Counties, and within the boundaries of the City of Miami, under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if all other requirements of this chapter are met and if:
The local government has adopted a plan, program, resolution, ordinance, or other policy encouraging the voluntary removal of signs in a downtown, historic, redevelopment, infill, or other designated area which also provides for a new or replacement sign to be erected on an interstate highway within that jurisdiction if a sign in the designated area is removed;
The sign owner and the local government mutually agree to the terms of the removal and replacement; and
The local government notifies the department of its intention to allow such removal and replacement as agreed upon pursuant to subparagraph 2."
and
WHEREAS, the City Commission deems it in the best interest of the City to participate in the pilot program authorized by s.
479.07(9)(c), F.S. (2009), which would permit 1,000 foot spacing for Outdoor advertising signs under the guidelines provided in this Resolution;
NOW, THEREFORE BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section.
2. Pursuant to s. 479.07(9)(c)(2), F.S. (2009), the City hereby adopts a pilot program encouraging the voluntary removal of signs within the boundaries of the City, which provides, subject to the conditions stated below, for a new or replacement sign to be erected on an interstate highway, with 1,000 foot spacing, if other Outdoor advertising signs within the boundaries of the City are removed.
Section 3. Any sign owner seeking permission to erect an Outdoor advertising sign with 1,000 foot spacing under this pilot program shall meet the following conditions:
The sign owner must have a qualified settlement agreement with the City;
Any application for a new sign under the pilot program must be in accordance with all terms and conditions of the qualified settlement agreement unless otherwise specified in these conditions;
In no event may an application for a new sign under the pilot program exceed the limitation on the number of signs otherwise permitted under the qualified settlement agreement;
The duration of the pilot program will not exceed the term of the qualified settlement agreement;
No LED Sign may be erected with 1,000 foot spacing unless allowed by an amendment to the sign owner's qualified settlement agreement pursuant to applicable provisions of the Miami Zoning Ordinance;
Sign owners must specify in advance of applying for a 1,000 foot spacing application the locations of the signs proposed to be removed or already removed;
Sign owners may not be delinquent on any financial obligation to the City as per their qualified settlement agreement;
All Outdoor advertising signs erected with 1,000 foot spacing shall be designed with aluminum plating (example attached) or be subject to design review per Manager's designee or designees.
Section 4. Should s. 479.07(9)(c), F. S. (2009) be repealed by the Florida Legislature, this pilot program shall automatically expire.
Section 5. The City Manager is authorized
(1) to notify the Florida Department of Transportation of the City's intention to allow removal and replacement of Outdoor advertising signs under 1,000 foot spacing as provided in this Resolution.
Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.
Petitioner has not entered into "a qualified settlement agreement with the City" providing for the removal and replacement of outdoor advertising signs (as required by Section 3(a) of Resolution File Number 09-01061), nor has it at any time, much less "in advance" of having submitted its application (as required by Section 3(f) of Resolution File Number 09-01061), "specif[ied]" what sign(s) would be removed and replaced if the Proposed Sign were to be permitted.
In or around November 2009, Petitioner retained the services of Mario Prats, a Florida-licensed surveyor since 1982, to measure how far the Proposed Sign location was to the nearest existing sign directly to the south of this location.
When Mr. Prats went to the CanPartners Parcel, he did not see the stake that had been there in May 2009, when
Mr. Barnes had done his measurements; nor did he see any other object marking the location of the Proposed Sign. He relied on a "drawing" to "approximate" where the sign would be.
Using a "Topcon [measurement] device" and measuring, not along I-95, but the ramp to I-95, Mr. Prats determined that the distance between the Proposed Sign location and the closest sign south of this location was 1,032 feet.
The only measurements offered and received into evidence to establish the distance between the Proposed Sign location and the nearest permitted sign (on the same side of the highway) were those taken by Mr. Barnes and Mr. Prats (as discussed above). Neither Mr. Barnes, nor Prats, determined that this distance was 1,500 feet or more.
CONCLUSIONS OF LAW
Chapter 479, Florida Statutes, regulates "signs in areas adjacent to state highways." The "[l]egislative intent with respect to [such] regulation" is described as follows in Section 479.015, Florida Statutes:
The control of signs in areas adjacent to the highways of this state is declared to be necessary to protect the public investment in the state highways; to attract visitors to this state by conserving the natural beauty of the state; to preserve and promote the recreational value of public travel; to assure that information in the specific interest of the traveling public is presented safely and aesthetically; to enhance the economic well-being of the state by promoting tourist-oriented businesses, such as public accommodations, vehicle services, attractions, campgrounds, parks, and recreational areas; and to promote points of scenic, historic, cultural, and educational interest.
The regulatory program established by Chapter 479, Florida Statutes, involves the Department's permitting of signs that meet established requirements. § 479.07(1), Fla. Stat. ("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 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.").
Among these requirements (which must be met before the Department may issue a permit) are the following related to spacing, which are found in Section 479.07(9), Florida Statutes:
(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:
1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.
* * *
(c) Notwithstanding subparagraph (a)1., there is established a pilot program . . . .
within the boundaries of the City of Miami, under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if all other requirements of this chapter are met and if:
The local government has adopted a plan, program, resolution, ordinance, or other policy encouraging the voluntary removal of signs in a downtown, historic, redevelopment, infill, or other designated area which also provides for a new or replacement sign to be erected on an interstate highway within that jurisdiction if a sign in the designated area is removed;
The sign owner and the local government mutually agree to the terms of the removal and replacement; and
The local government notifies the department of its intention to allow such removal and replacement as agreed upon pursuant to subparagraph 2.
The new or replacement sign to be erected on an interstate highway within that jurisdiction is to be located on a parcel of land specifically designated for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to chapter 163 and such parcel
shall not be subject to an evaluation in accordance with the criteria set forth in the s. 479.01(26) to determine if the parcel can be considered an unzoned commercial or industrial area.
* * *
The City of Miami has adopted a resolution of the type described in Section 479.07(9)(c)1., Florida Statutes. It did so on October 5, 2009, when it adopted Resolution File Number 09-01061 (which is set out above).
Because they (working in tandem) provide an exception to the 1,500-foot minimum spacing requirement of Section 479.07(9)(a)1., Florida Statutes, that would otherwise apply, Section 479.07(9)(c)1., Florida Statutes, and Resolution File Number 09-01061 must be strictly construed. See Samara Development Corp. v. Marlow, 556 So. 2d 1097, 1100 (Fla. 1990)("[I]t is a well-recognized rule of statutory construction that exceptions or provisos should be narrowly and strictly construed."); Heburn v. Department of Children and Families, 772 So. 2d 561, 563 (Fla. 1st DCA 2000)("An exemption from a statute, enacted to protect the public welfare, is strictly construed against the person claiming the exemption, and the Department was not required to grant Heburn any benefits under the exemption."); PPI, Inc. v. Department of Business and Professional Regulation, 698 So. 2d 306, 308 (Fla. 3d DCA 1997)("The penny-ante statute is an exception to long-standing
Florida law that prohibits all such forms of gambling; as such, it is to be strictly construed."); Pal-Mar Water Management District v. Board of County Commissioners, 384 So. 2d 232, 233-
234 (Fla. 4th DCA. 1980)("[I]n light of the strict construction against a party claiming a statutory exemption, the instant order declaring Pal-Mar's drainage project not a closed system is affirmed."); and State v. Nourse, 340 So. 2d 966, 969 (Fla. 3d DCA 1976)("Being an exception to a general prohibition, any such statutory provision is normally construed strictly against the one who attempts to take advantage of the exception. And, unless the right to the exception is clearly apparent in the statute, no benefits thereunder will be permitted. Any ambiguity in an exception statute is normally construed in a manner that restricts the use of the exception.")(citations omitted).
Florida Administrative Code Rule 14-10.006(4) explains how "[t]he minimum required distance between the location for which a permit is sought and the nearest permitted sign shall be measured." It provides, in pertinent part, as follows:
Spacing. The minimum required distance between the location for which a permit is sought and the nearest permitted sign shall be measured along the edge of pavement of the main-traveled way from the location marked by the applicant in accordance with Rule 14-10.004, F.A.C., to the location of the permitted sign. . . . Measurement along the edge of pavement shall be based on the
point perpendicular to a tangent to the edge of the main-traveled way nearest the location of the sign.
"Main-traveled way," as that term is used in Chapter 479, Florida Statutes, is defined in Section 479.01(13), Florida Statutes, as follows:
Because it implements provisions of Chapter 479, Florida Statutes, Florida Administrative Code Rule 14-10.006(4) must be read in a manner consistent with the definition of "main-traveled way" set forth in Section 479.10(13), Florida Statutes. Cf. Department of Health and Rehabilitative Services v. Florida Psychiatric Society, 382 So. 2d 1280, 1285 (Fla. 1st DCA 1980)("Administrative regulations must be consistent with the statutes under which they are promulgated ").
The reference made in Florida Administrative Code Rule 14-10.006(4) to Florida Administrative Code Rule 14-10.004 is to that portion of the latter rule (found in Subsection (1)(b) thereof) which provides as follows:
Prior to issuing any permit, the Department will inspect the proposed sign site to
assure compliance with Chapter 479, F.S., and this rule chapter. To ensure that the site inspected is the same specified in the application, the applicant shall mark the proposed sign site in such a manner that the markings are visible from the main-traveled way. The markings shall be displayed from the time of submission of the application, and shall be maintained by the applicant until the Department has approved or denied the application.
The Department's permitting authority is statewide in scope and "is not constrained by municipal [or other local] boundaries." Hammond v. Department of Transportation, 493 So. 2d 33, 35 (Fla. 1st DCA 1986). Local governments, however, "can establish [requirements] which are more stringent than those of Chapter 479, Florida Statutes." Florida Department of
Transportation v. E.T. Legg & Co., 472 So. 2d 1336, 1337 (Fla. 4th DCA 1985); see also Lamar-Orlando Outdoor Advertising v.
Ormond Beach, 415 So. 2d 1312, 1321 (Fla. 5th DCA 1982)("Chapter
479 clearly contemplates that municipalities may enact stricter rules than those imposed by the state law . . . ."); 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"); and § 479.155, Fla. Stat. ("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."). Moreover, the Department is foreclosed, by Section 479.15(1), Florida Statutes,10 from issuing a permit for a sign that does not, at the time of the permitting decision,11 meet local government requirements. See Lamar-Orlando Outdoor Advertising, 415 So. 2d at 1321 ("[T]he final clause of section 479.15(1) prohibits the Department of Transportation from permitting any advertisement which is 'prohibited by any other public board, officer or agency in the lawful exercise of its or their powers.'").
To obtain a permit from the Department, "[a]n application . . . must be made on a form prescribed by the [D]epartment, and a separate application must be submitted for each permit requested. A permit is required for each sign facing." § 479.07(3)(a), Fla. Stat.
The "form [currently] prescribed by the [D]epartment" on which an application must be made is "Application for Outdoor Advertising Permit, Form 575-070-04, Rev. 02/09." Fla. Admin. Code R. 14-10.004(1).
"Application for Outdoor Advertising Permit, Form 575- 070-04, Rev. 02/09" is incorporated by reference in Florida Administrative Code Rule 14-10.004(1),12 as permitted by Section 120.54(1)(i)1., which provides as follows:
A rule may incorporate material by reference but only as the material exists on the date the rule is adopted. For purposes of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes.
As part of an existing rule that has been adopted by the Department, this form ("Application for Outdoor Advertising Permit, Form 575-070-04, Rev. 02/09") "must be given legal effect [unless and] until invalidated in a section 120.56 rule challenge proceeding."13 Board of Optometry v. Florida Society
of Ophthalmology, No. 88-142, 1989 Fla. App. LEXIS 1518 *6 (Fla. 1st DCA February 10, 1989); see also State v. Jenkins, 469 So.
2d 733, 734 (Fla. 1985)("[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of law."); Vantage Healthcare Corp. v. Agency for Health Care Administration, 687 So. 2d 306, 308 (Fla. 1st DCA 1997)("The agency is obligated to follow its own rules."); and Buffa v. Singletary, 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency must comply with its own rules.").
Section 479.07(3)(b), Florida Statutes, mandates that "[e]very permit application . . . be accompanied by . . . , where local governmental regulation of signs exists, a statement from the appropriate local governmental official indicating that the sign complies with all local governmental requirements and that the agency or unit of local government will issue a permit
to that applicant upon approval of the state permit application by the [D]epartment" (Local Government Permission Statement).
"Application for Outdoor Advertising Permit, Form 575- 070-04, Rev. 02/09," contains the following "Local Government Permission" section,14 which, if completed by the appropriate local government official "not more than six (6) months prior to receipt of the completed outdoor advertising permit application by the Department," will be accepted by the Department as the Local Government Permission Statement required by Section 479.07(3)(b), Florida Statutes, absent a showing that the completion of this section was the product of fraud, mistake, misunderstanding, or error or that, for any other reason, this completed section does not accurately reflect the local government's current position regarding the subject sign's compliance "with all local governmental requirements"15:
Local Government Permission: Please complete the items below. You may submit another form of written statement indicating that the sign complies with all local governmental requirements. For a proposed sign location, a copy of the building permit issued by the local government may be submitted.[16]
The outdoor advertising sign identified in this application:
D is in compliance with all duly adopted local ordinances and has been or will be issued the necessary permits.
D is not in compliance with local
ordinances, but is legally existing as a
non-conforming sign.
D is not in compliance with local ordinances and is/would be considered to be an illegally maintained structure.
I certify that I represent the governmental entity within whose jurisdiction the sign described herein is located and that the determination reflected in this section is made under my delegated authority.
Signature of Government Official Date
Printed Name and Title
NOTE: Form must be completed not more than six (6) months prior to receipt of the completed outdoor advertising permit application by the Department.
In light of this "[n]ote," which, through incorporation, is part of Florida Administrative Code Rule 14- 10.004, a filled-out "Local Government Permission" section completed "more than six (6) months prior to receipt of the completed outdoor advertising permit application by the Department" is too stale to provide the proof of current compliance "with all local governmental requirements" that Section 479.07(3)(b), Florida Statutes (as interpreted by the Department in Florida Administrative Code Rule 14-10.004) mandates.
Without an accompanying timely-completed "Local Government Permission" section (or its equivalent), a permit application is incomplete and cannot be granted,17 regardless of how persuasive a showing an applicant may be able to make,
through other means, that the sign in question "complies with all local governmental requirements and that the agency or unit of local government [should] issue a permit to that applicant." Fla. Admin. Code R. 14-10.004(1)(c)1. ("An application will be considered complete when all items on the application form have been filled in, all required attachments have been received, and the correct permit fee has been submitted.").
In acting on an outdoor advertising sign permit application, the Department must follow the requirements of Section 120.60, Florida Statutes, Subsection (3) of which provides as follows:
Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has requested notice of agency action. Each notice shall inform the recipient of the basis for the agency decision, shall inform the recipient of any administrative hearing pursuant to ss.
120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification shall be filed with the agency clerk.
Applicants whose application has been preliminarily denied by the Department and who raise disputed issues of material fact are entitled, at their request, to an evidentiary administrative hearing, conducted pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on such preliminary agency action before any final agency action is taken.
At any such hearing, the applicant bears the ultimate burden of proving, by a preponderance of the evidence, that it should be granted the permit for which it has applied. See Department of Banking and Finance Division of Securities and Investor Protection v Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996); Pershing Industries, Inc. v Department of
Banking and Finance, 591 So. 2d 991, 994 (Fla. 1st DCA 1991); and 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. . . ."). The applicant, however, need address at the hearing only those issues raised in the Department's notice of intent to deny (as well as, in those cases (such as the instant one) where a competing applicant has been granted intervenor status in the proceeding,18 any additional issues that the competing applicant has been given permission to raise). See M. H. v. Department of Children and Family Services, 977 So. 2d 755, 757 (Fla. 2d DCA 2008)("[T]he
notice's exclusive focus on 'significant pulling force' as causing a nonaccidental injury precluded DCF from urging negligence as an alternative ground for denying the renewal of the license at the administrative proceeding."); and Woodholly
Associates v. Department of Natural Resources, 451 So. 2d 1002, 1004 (Fla. 1st DCA 1984).
The hearing is "a de novo proceeding intended to formulate agency action, and not to review action taken earlier or preliminarily." Beverly Enterprises-Florida, Inc. v. Department of Health and Rehabilitative Services, 573 So. 2d 19,
23 (Fla. 1st DCA 1990). The applicant has the opportunity at the hearing, through its presentation, to attempt to allay the Department's expressed concerns regarding the applicant's entitlement to the requested permit and thereby persuade the Department to change its mind and issue a final order granting its application therefor. See Capeletti Brothers Inc. v. Department of General Services, 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the purpose of the [Section]
120.57 hearing. The rejection of bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."); and Couch Construction Company Inc. v. Department of Transportation, 361 So. 2d 172, 176 (Fla. 1st DCA 1978)("APA hearing requirements are designed to give affected
parties an opportunity to change the agency's mind."). In making its final decision as to whether or not to grant the application, the Department must apply the current law in effect at the time of its decision. See Mount Sinai Medical Center, 690 So. 2d at 691; Lavernia v. Department of Professional Regulation, Bd. of Medicine, 616 So. 2d 53, 53-54 (Fla. 1st DCA 1993)("[A] change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted."); and Bruner, 399 So. 2d at 5.
In the instant case, the Department, in accordance with the provisions of Section 120.60(3), Florida Statutes, provided Petitioner with written notice of its preliminary determination to deny Petitioner's Application. In its notice, the Department gave three separate "grounds" for its intended denial, the following two of which it is still pursuing: "Sign does not meet spacing requirements"; and "Local government
form . . . completed . . . more than six (6) months prior to [the Department's] receipt" of the application. Petitioner requested, and was subsequently granted, an evidentiary hearing conducted pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on the matter.
The "spacing requirement" that the Department claims the Proposed Sign "does not meet" is Section 479.07(9)(a)1.'s mandate that, to be permitted, a sign must be no less than "[o]ne thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway."
Petitioner does not dispute that the Proposed Sign is less than 1,500 feet from the nearest "permitted sign on the same side of the highway [I-95]." Rather, it has taken the position that the Proposed Sign needs only to be a minimum of a 1,000 feet, not 1,500 feet, from that that nearest "permitted sign" and that it meets that requirement, arguing that the "reduced" minimum spacing requirement of Section 479.07(9)(c), Florida Statutes, applies in the instant case.
The record evidence, however, does not support this argument. While it is true that the City has adopted a resolution (Resolution File Number 09-01061) of the type described in Subsection (9)(c)1. of Section 479.07, Florida Statutes, enabling the City to participate in the "pilot program" described in this statutory provision, to obtain "permission [under the resolution] to erect an Outdoor advertising sign with 1,000 foot spacing," the "sign owner" must meet the threshold "condition" (imposed by Section 3.(a) of the resolution) of "hav[ing] a qualified settlement agreement with the City." The record evidence indisputably establishes that
Petitioner, the "owner" of the Proposed Sign, does not have such a "qualified settlement agreement." The Proposed Sign, therefore, is not eligible for "1,000 foot spacing" under the resolution.
Not only does the record evidence not establish the existence of an adopted local governmental "plan, program, resolution, ordinance, or other policy" of the type described in Subsection (9)(c)1. of Section 479.07, Florida Statutes, under which the Proposed Sign would qualify for the minimum spacing requirement reduction allowed by the statute, but it also fails to demonstrate that Petitioner (as "owner" of the Proposed Sign) and the City have "mutually agree[d] to the terms of [any] removal and replacement" in connection with the Proposed Sign (as required by Subsection (9)(c)2. of Section 479.07), much less that the City has "notifie[d] the [D]epartment of its intention to allow such [an agreed upon] removal and replacement" (as required by Subsection (9)(c)3. of Section 479.07).
Moreover, even if a 1,000-foot minimum spacing requirement did apply in the instant case (which it does not), Petitioner's evidentiary presentation would be insufficient to show compliance with this "reduced" minimum spacing requirement. The only record evidence Petitioner presented to demonstrate such compliance was the testimony of Mr. Prats that (in November
2009) he had measured the distance between the Proposed Sign and the "nearest permitted sign" to be 1,032 feet. Mr. Prats, however, unlike the Department's witness, Mr. Barnes,19 did not follow the requirements of Florida Administrative Code Rule 14- 10.006(4) in measuring this distance in that: (1) he measured along, not "the main-traveled way" (I-95), but a ramp to I-95; and (2) he "approximate[d]" the location of the Proposed Sign instead of using the "location marked by the applicant in accordance with Rule 14-10.004, F.A.C."
With respect to the remaining ground on which the Department is still relying as a basis for its intended denial of Petitioner's Application ("Local government form . . . completed . . . more than six (6) months prior to [the Department's] receipt" of the application), Petitioner contends that the "Department exceeded its authority by imposing the arbitrary requirement that a local government form be obtained within six months of the receipt of the application" (Six-Month Requirement). This argument raises an issue beyond the scope of this proceeding (which is being conducted pursuant to Sections
120.569 and 120.57(1), Florida Statutes, not Section 120.56, Florida Statutes, pursuant to which the validity of existing agency rules may be challenged). The Six-Month Requirement was "impos[ed]" by the Department through the adoption of a rule provision (Florida Administrative Code Rule 14-10.004(1)), as
explained above. This rule provision has not been successfully challenged pursuant to Section 120.56, Florida Statutes. As an existing rule requirement that has not been invalidated in a Section 120.56 proceeding, it "must be given legal effect" by the undersigned in this Section 120.569/Section 120.57(1) proceeding. See Florida Society of Ophthalmology, 1989 Fla.
App. LEXIS 1518 *6.
Petitioner further contends, in the alternative, that "even if the rule [establishing the Six-Month Requirement] were valid, [Petitioner's] local government form remains valid and is in full compliance with . . . the law, as it has been extended for two years by operation of Section 14 of SB 360,[20] as further clarified by House Amendment [to] Bill No. CS/SB 1752 (2010),[21] which provides that any local government development order or building permit that has an expiration date of September 1, 2008 through January 1, 2010 is extended and renewed for a period of two (2) years following its date of expiration." The contention is rejected as unpersuasive because it is based upon the erroneous premise that a completed and signed "[l]ocal government form " constitutes a "local government development order or building permit" under these legislative enactments.
In view of the foregoing, the Department should take final action to deny Petitioner's Application on the grounds
(stated in the Department's Notice of Denied Outdoor Advertising Permit Application) that the "[Proposed] Sign does not meet [the] spacing requirements [of Section 479.07(9)(a)1., Florida Statutes]" and that the "[l]ocal government form [made a part of the application] . . . [was] completed . . . more than six (6) months prior to [the Department's] receipt" of the application."22
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Transportation issue a final order denying Petitioner's Application for the reasons set forth above.
DONE AND ENTERED this 11th day of August, 2010, 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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2010.
ENDNOTES
1 Unless otherwise specified, all references to Florida Statutes in this Recommended Order are to Florida Statutes (2009).
2 The hearing was originally scheduled for September 23, 2009, but was thrice continued--each time at the request of Petitioner.
3 At the April 15, 2010, final hearing in this case, Petitioner had presented the testimony of another surveyor (with no apparent connection to Kissimmee Valley Surveying & Mapping, Inc.), Mario Prats, "in support of its claim that the distance requirements of Rule 14-10.006(4) are satisfied." Mr. Prats' testimony was based upon a survey he had conducted in November 2009.
4 Petitioner's Proposed Recommended Order was submitted by Mr. Echemendia and Harkley Thorton, in their capacities as principals of Petitioner.
5 An application seeking a permit for the Proposed Sign had been submitted by Petitioner to the Department on March 2, 2009, but this earlier application had been "sent back" to Petitioner
"as . . . incomplete."
6 Mr. Barnes first used an "RSC Plus Series DMI, which is a distance measuring instrument that[] attache[s] to the wheel base of [a] vehicle." He then measured the distance "on foot," employing a "manual rolling tape."
7 Mr. Barnes is not a licensed surveyor, but he has extensive experience measuring distances between proposed and existing sign locations in accordance with the requirements of the Department.
8 Intervenor was first informed by the Department of the "pending status" of its application by letter dated June 19, 2009, which read as follows:
We are unable to review your permit application(s) for the above-referenced
location [the Lummis Site] at this time. Prior to the receipt of your application, we received an application for a competing location.
Pursuant to Section 14-10.004(1)(e), Florida Administrative Code, your application(s) will be held without action by the Department until the pending application is resolved. You will be notified when this occurs.
We are returning your check number(s) 5373 in the total amount of $96.00. In the event that we are able to act on your application, we will contact you to submit the correct application fees for the current quarter.
If you wish to withdraw your application, please submit a written request to me at Mail Station 22 at the address above, referencing the application numbers show. All application materials will be returned to you.
9 The clarifying language, "which specifically include on-ramps or off-ramps to the interstate highway system," was added to the definition of "main-traveled way," effective July 1, 2010, by Chapter 2010-225, Laws of Florida.
10 Section 479.15(1), Florida Statutes, provides 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.
11 See Agency for Health Care Administration v. Mount Sinai Medical Center, 690 So. 2d 689, 691 (Fla. 1st DCA. 1997)("The agency must apply the law in effect at the time it makes its final decision. No final decision has yet been rendered in the
instant proceedings. Where there is a change in law in a licensure matter, the law at the time of the decision, rather than when the application was filed, determines whether the license should be granted.")(citation omitted); and Bruner v. Board of Real Estate, 399 So. 2d 4, 5 (Fla. 5th DCA 1981)("[T]he Department should have applied the licensing statute in effect at the time that it made its decision.").
12 The current version of Florida Administrative Code Rule 14-
took effect on April 2, 2009, prior to the date of the filing of Petitioner's Application with the Department, but after the completion of the "Local Government Permission" section of the application. Its Subsection (1) provides, among other things, that "[a]n application for a new sign permit is made by completing and submitting an Application for Outdoor Advertising Permit, Form 575-070-04, Rev. 02/09, incorporated herein by reference. ").
13 On September 25, 2009, the Department published a Notice of Development of Rulemaking, proposing to, among other things, amend Florida Administrative Code Rule 14-10.004 by adding the following "clarify[ing]" language to the body of the rule (specifically Subsection (1)(c)1. thereof): "Information required on the application from the local zoning official on allowable land use, and from the local government official providing local government approval, must have been issued within six months of the Department's receipt of the application." No final action has yet been taken on this proposal, and the version of Florida Administrative Code Rule 14-10.004 that has been in effect since April 2, 2009, remains intact.
14 "Application for Outdoor Advertising Permit, Form 575-070-04, Rev. 10/06," the form on which Petitioner's Application was submitted, was incorporated by reference in the version of Florida Administrative Code Rule 14-10.004 that was in effect from December 31, 2006, through April 1, 2009. It contained a "Local Government Permission" section identical to the one found in "Application for Outdoor Advertising Permit, Form 575-070-04, Rev. 02/09."
15 It must be remembered that, pursuant to Section 479.15(1), Florida Statutes, the Department may not issue a permit for a sign that does not meet local government requirements. Under the statutory framework, as implemented by the Department through rulemaking, a Local Government Permission Statement (in
the form an executed "Local Government Permission" section on Form 575-070-04), completed "not more than six (6) months prior to receipt of the completed outdoor advertising permit application by the Department," constitutes prima facie proof sufficient to establish the subject sign's continuing compliance with local government requirements, in the absence of evidence that this Local Government Permission Statement does not accurately represent the local government's current position regarding the sign. In no event, however, may the Department substitute its judgment for that of the local government on the issue of whether a sign complies with that local government's own particular requirements. It is the local government, not the Department, to whom the Legislature has delegated the responsibility to make such a compliance determination. See Florida Outdoor Advertising Association v. Department of Transportation, No. 03-3682RP, slip op. at 13 (Fla. DOAH February 16, 2004)(Final Order)("The form also contains a section entitled, 'Local Governmental Permission' in which a local government official indicates whether or not the outdoor advertising sign identified in the application is or is not in compliance with all duly adopted local ordinances. Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan.").
16 Florida Administrative Code Rule 14-10.004(3)(d) provides as follows with respect to "existing signs":
For existing signs, the written statement required by Section 479.07(3)(b), F.S., shall be any written document from the appropriate local governmental official indicating compliance with local requirements as of the date of the permit application. A previously issued building permit shall be accepted as the statement from an appropriate local governmental official, except in cases where the local government has provided notice to the sign owner that the sign is illegal or has undertaken action to cause the sign to be removed. When a building permit is submitted as the statement of the local
government, the applicant shall certify in writing that the local government has not provided notice that the sign is illegal, and that the local government has taken no action to cause the sign to be removed.
17 Florida Administrative Code Rule 14-10.004(1)(c)3. provides that "[i]ncomplete permit applications will be returned to the applicant along with any permit fees which were submitted with the application."
18 When pending "applications are mutually exclusive and are so regarded by the [agency], as here . . ., each competitor is potentially a party to the proceedings on the other's application. Each is one 'whose substantial interests will be affected by proposed agency action' on the other's application." Bio-Medical Applications of Ocala v. Office of Community Medical Facilities, 374 So. 2d 88, 89 (Fla. 1st DCA 1979).
19 Mr. Barnes, the only other witness to testify as to how far the Proposed Sign was to the "nearest permitted sign," testified that, according to his measurements, the distance was 970 feet.
20 Section 14 of Senate Bill 360, which was enacted into law as Chapter 2009-96, Laws of Florida, provided as follows:
Except as provided in subsection (4), and in recognition of 2009 real estate market conditions, any permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373, Florida Statutes, that has an expiration date of September 1, 2008, through January 1, 2012, is extended and renewed for a period of 2 years following its date of expiration. This extension includes any local government-issued development order or building permit. The
2-year extension also applies to build out dates including any build out date extension previously granted under s. 380.06(19)(c), Florida Statutes. This section shall not be construed to prohibit conversion from the construction phase to the operation phase upon completion of construction.
The commencement and completion dates for any required mitigation associated with a phased construction project shall be extended such that mitigation takes place in the same timeframe relative to the phase as originally permitted.
The holder of a valid permit or other authorization that is eligible for the
2-year extension shall notify the authorizing agency in writing no later than December 31, 2009, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization.
The extension provided for in subsection (1) does not apply to:
A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.
A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action by the authorizing agency.
A permit or other authorization, if granted an extension, that would
delay or prevent compliance with a court order.
Permits extended under this section shall continue to be governed by rules in effect at the time the permit was issued, except when it can be demonstrated that the rules in effect at the time the permit was issued would create an immediate threat to public safety or health. This provision shall apply to any modification of the plans, terms, and conditions of the
permit that lessens the environmental impact, except that any such modification shall not extend the time limit beyond 2 additional years.
Nothing in this section shall impair the authority of a county or municipality to require the owner of a property, that has notified the county or municipality of the owner's intention to receive the extension of time granted by this section, to maintain and secure the property in a safe and sanitary condition in compliance with applicable laws and ordinances.
21 Section 46 of Committee Substitute for Senate Bill 1752, which was enacted into law as Chapter 2010-147, Laws of Florida, provided as follows:
Except as provided in subsection (4), a development order issued by a local government, a building permit, and any permit issued by the Department of Environmental Protection or by a water management pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from September 1, 2008, through January 1, 2012, is extended and renewed for a period of 2 years after its previously scheduled date of expiration. This 2-year extension also applies to buildout dates, including any extension of a buildout date that was previously granted under s. 380.06(19)(c), Florida Statutes. This section does not prohibit conversion from the construction phase to the operation phase upon completion of construction. This extension is in addition to the 2-year permit extension provided under section 14 of chapter 2009-96, Laws of Florida.
The commencement and completion dates for any required mitigation associated with a phased construction project are extended so that mitigation takes place in the same
timeframe relative to the phase as originally permitted.
The holder of a valid permit or other authorization that is eligible for the 2- year extension must notify the authorizing agency in writing by December 31, 2010, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization.
The extension provided for in subsection (1) does not apply to:
A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.
A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action by the authorizing agency.
A permit or other authorization, if granted an extension that would delay or prevent compliance with a court order.
Permits extended under this section shall continue to be governed by the rules in effect at the time the permit was issued, except if it is demonstrated that the rules in effect at the time the permit was issued would create an immediate threat to public safety or health. This provision
applies to any modification of the plans, terms, and conditions of the permit which lessens the environmental impact, except that any such modification does not extend the time limit beyond 2 additional years.
This section does not impair the authority of a county or municipality to require the owner of a property that has notified the county or municipality of the owner’s intent to receive the extension of time granted pursuant to this section to maintain and secure the property in a safe and sanitary condition in compliance with applicable laws and ordinances.
22 It is unnecessary to, and therefore the undersigned will not, determine whether Petitioner's Application should be denied on any additional grounds that Intervenor has raised.
COPIES FURNISHED:
Santiago D. Echemendia, Esquire 1441 Brickell Avenue, 15th Floor Miami, Florida 33131-3407
Kimberly Cark Menchion, Esquire Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450
Glenn N. Smith, Esquire Ruden, McClosky P.A.
200 East Broward Boulevard, 15th Floor Post Office Box 1900
Fort Lauderdale, Florida 33301
Stephanie C. Kopelousos, Secretary Department of Transportation
605 Suwannee Street, Mail Station 57
Tallahassee, Florida 32399-0450
Deanna Hurt, Clerk of Agency Proceedings Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450
Alexis M. Yarbrough, General Counsel Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 23, 2010 | Agency Final Order | |
| Aug. 11, 2010 | Recommended Order | Recommend that application for sign permit be denied on grounds that the proposed sign failed to meet minimum spacing requirements and that local government permission was more than 6 months old. |
JOHN DADDONO vs DEPARTMENT OF TRANSPORTATION, 09-003444 (2009)
DEPARTMENT OF TRANSPORTATION vs. HEADRICK OUTDOOR, 09-003444 (2009)
DEPARTMENT OF TRANSPORTATION vs. BILL SALTER OUTDOOR ADVERTISING, 09-003444 (2009)
ENTERPRISE OUTDOOR ADVERTISING, INC. vs. DEPARTMENT OF TRANSPORTATION, 09-003444 (2009)
DEPARTMENT OF TRANSPORTATION vs. J. L. CARPENTER, 09-003444 (2009)
