STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Haydon Burns Building 605 Suwannee Street Tallahassee, Florida CARTER PRITCHETT ADVERTISING, INC. . DOAH CASE NO. 11-1681 Petitioner, DOT CASE NO. 10-004 vs. DEPARTMENT OF TRANSPORTATION, Respondent, CBS OUTDOOR, INC. , DOAH CASE NO. 11-1682 Petitioner, DOT CASE NO. 09-114 vs. DEPARTMENT OF TRANSPORTATION, Respondent, FINAL ORDER On October 30, 2009, the State of Florida, Department of Transportation (“Department”), issued a Notice of Denied Outdoor Advertising Permit Application (Application Nos. 57663 and 57664) advising CBS Outdoor, Inc. (“CBS”) that CBS’ application for a proposed sign site located in the City of Miami at 3800 Northwest 2nd Avenue was not approved because: Sign does not meet spacing requirements (1500’ for interstates, 1000’ for FAP). In conflict with permitted sign(s), tag#(s): BV314/315. Held by: Carter-Pritchett. Filed July 11, 2012 1:13 PM Division of Administrative Hearings {s.479.07(9) (a), 1.,& 2, FS] On December 18, 2009, the Department issued a Notice of Intent to Revoke Sign Permit for Violation, advising Catter: Outdoor Advertising (“Carter”) that the Department intended to revoke its permits for a double-faced sign bearing permit tag numbers BV314 and BV315 located in the City of Miami at 3825 Nw 2nd Avenue for the following violation: This nonconforming sign no longer exists at the permitted location and is deemed abandoned by the Department, pursuant to s. 14-10.007(6) (b), Florida Administrative Code. On November 19, 2009, CBS filed a Petition for Formal Proceedings requesting a formal administrative hearing on the Department’s denial of its application. By letter dated January 15, 2010, and received by the Department on or about January 20, 2010, Carter requested an informal administrative hearing to challenge the Notice of Intent to Revoke. An informal hearing was held on March 18, 2011, on CBS’ Petition to Intervene and Motion to Transfer to the Division of Administrative Hearings. The Department relinquished jurisdiction to the Division of Administrative Hearings (“DOAH”) . On April 5, 2011, the Department referred the matters to DOAH. Petitioner Carter is the subject of DOAH Case No. 11- 1681, and Petitioner CBS is the subject of DOAH Case No. 11- 1682. The. parties’ Joint Motion to Consolidate DOAH Case Nos, 11-1681 and 11-1682 was granted by Order of Consolidation issued on April 22, 2011. After a number of continuances, the final consolidated hearing was held on October 18 and 19, 2011, in Miami, Florida, and January 25, 2012, in Tallahassee, Florida, before June C. McKinney, a duly appointed administrative law judge (“ALU”). Appearances on behalf of the parties were as follows: For Petitioner Carter: Carol Ann Licko, Esquire Hogan Lovells US LLP 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 For Petitioner CBS: Thomas R. Bolf, Esquire Greenspoon Marder, P.A. 15th Floor 200 Bast Broward Boulevard Fort Lauderdale, Florida 33301 For Respondent: Kimberly Clark Menchion, Esquire Department of Transportation The Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 At the hearing, Carter presented the testimony of seven witnesses: Rex Hodges, a principal of Carter, who testified as the corporate representative for Carter; Scott Carter, a principal of Carter and a representative of Scott Carter Signs, Inc.; Jean Jose, a representative of the Tabernacle of God In Christ, Inc.; Joe Little, CBS’ Vice President of Real Estate for the Southeast Region; Ed Scherer, a former real estate representative for CBS; Vanessa Acosta, the current Assistant Director of Building and Zoning for the City of Miami; and Orlando Toledo, a former representative of the City of Miami who had' worked for the City as the Zoning Administrator, Director of Building, Zoning, and Planning, and Director of Building and Zoning. Carter’s Exhibits 2, 4, 5, 9, 11, 12, 15 through 18, 21, 24 through 32, 40, 42, 43, 47 through 51, 55, 56, 59, 61 through 71, 73 through 85, 87, 88, 92, 115, 117, and 118 were received into evidence. CBS presented the testimony of two witnesses: Daniel Blanton, a surveyor who testified as an expert; and Joe Little, CBS’ Vice President of Real Estate for the Southeast Region, who testified as corporate representative for CBS. CBS’ Exhibits 4, 13, 14, 18, 19, 23, 26, 30, 30A, 39, 40, 42 through 44, 51, 52, 55, and 57 through 62 were received into evidence. The Department presented the testimony of two witnesses: Robert Jessee, the Department’s Manager of Qutdoor Advertising and Logo, who testified as corporate representative for the Department; and Mack Barnes, a representative of Cardno TBE and consultant for the Department, who served as an outdoor advertising inspector. The Department’s Exhibits 1 through 19 were received into evidence. The transcript of the October 18 and 19 proceedings was filed with DOAH on December 19, 2011, and the transcript of the January 25 proceedings was filed with DOAH on February 13, 2012. By stipulation of the parties, the October 5, 2010 deposition of Lynn Holschuh was also submitted for the ALJ's consideration. All parties timely filed proposed recommended orders and the ALJ entered her Recommended Order on April 17, 2012, wherein she recommended that the Department issue a final order upholding Carter’s Notice of Intent to Revoke Sign Permit for Violation and granting CBS’ permit applications. The parties timely filed exceptions to the Recommended Order on May 2, 2012. Additionally, Carter filed responses to CBS’ and the Department’s exceptions, CBS filed a response to Carter's exceptions, and the Department filed a response to Carter’s exceptions. STATEMENT OF THE ISSUES As stated by the ALJ in her Recommended Order: The issues in this case are: whether the Department of Transportation (“Department”) properly issued a Notice of Intent to Revoke Sign Permit for Violation to Carter Outdoor Advertising a/k/a Carter Pritchett Advertising (“Carter”) for the outdoor advertising sign permitted with tag numbers BV314/315 and whether ‘the Department properly denied CBS Outdoor, Inc.’s (“CBS”) application for outdoor advertising sign permit based on a spacing conflict with the outdoor advertising sign permitted with tag numbers BV314/315. EXCEPTIONS Pursuant to Section 120.57(1) (1), Florida Statutes (2011), an agency has the authority to reject or modify the findings of fact set out in the recommended order. However, the agency cannot do so unless it first determines from a review of the entire record, and states with particularity in its final order, that the findings of fact were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Rogers v. Department of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005).? “Competent, substantial evidence,” in the context of an administrative proceeding, has been defined as “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred” or such evidence as is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” Heifetz v. Dep’t. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. lst DCA 1985). In determining whether an administrative * The parties do not contend that the proceedings on which the challenged findings were based did not comply with the essential requirements of law. law judge’s findings of fact have the requisite record support, neither an agency nor a reviewing court may re-weigh the evidence presented, judge the credibility of witnesses, or otherwise interpret the evidence to fit its desired conclusion. Bill Salter Advertising, Inc. v. Department of Transportation, 974 So. 2d 548, 551 (Fla. lst DCA 2008); Rogers, 920 So. 2d at 30; Heifetz, 475 So. 2d at 1281; Section 120.68(7) (b), Florida Statutes (2011). If there is competent substantial evidence in the record to support the administrative law judge’s findings of fact, the agency may not reject them, modify them, or make new findings. Rogers, 920 So. 2d at 30. Regarding an agency’s treatment of ‘conclusions of law, Section 120.57(1) (1), Florida Statutes (2011), provides: The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. CARTER Carter first takes exception to Conclusions of Law 59 and 63 of the Recommended Order where the ALJ concluded that the Department met its burden of showing that Carter had abandoned the double-faced sign located at the Tabernacle of God in Christ Church at 3825 N.W. 2nd Avenue, Miami, Florida (“Tabernacle Sign”). Carter contends that the Department failed to show by clear and convincing evidence that Carter intentionally and voluntarily relinquished further use of the Tabernacle Sign. Carter’s exception is not well-taken for at least two reasons. First, Florida Administrative Code Rule 14-10.007(6).(b) does not require a showing that the sign owner “intentionally and voluntarily” relinquished further use of its sign. The rule is silent with respect to intent and requires a showing either that the sign structure no longer exists at the permitted location, or that the sign owner failed to operate and maintain the sign for a period of 12 months or longer.’ Second, in support of its position Carter looks to testimony adduced and evidence admitted at the hearing and asserts that there is substantial competent evidence showing that Carter did not abandon the Tabernacle Sign location. ? As will be discussed more fully below, the Department was required to show abandonment by a preponderance of the evidence as opposed to clear and convincing evidence. Essentially, Carter is requesting the Department to accept its view of the record evidence over that of the ALJ and, to the extent there is conflicting testimony, to revisit the ALJ's resolution of any such conflicts. The Department cannot do so. Bill Salter Advertising, Inc., 974 So. 2d at 551; Rogers, 920 So. 2d at 30. In any event, Carter’s assertion cannot stand in light of its pre-hearing stipulation that: “At some time in 2008 or 2009, the sign structure comprising the Tabernacle Sign structure ceased being at 3825 NW 2nd Avenue, Miami, Florida.” (Joint Pre-Hearing Stipulation, E. 17.) The ALJ properly concluded that Carter “abandoned” the Tabernacle Sign as that term is defined in Florida Administrative Code Rule 14- 10.007(6) (b). Carter's first exception is rejected. Carter’s second exception is addressed to Conclusion of Law 60 of the Recommended Order where the ALJ concluded that this case was distinguishable from the 5th DCA’s decision in Hobbs v. Dep’t_of Transp., 831 So. 2d 745 (Fla. 5th DCA 2002). In Hobbs, the holder of a sign permit for a nonconforming sign asked the Department to cancel its sign permit and the Department agreed. Hobbs, 831 So. 2d at 747. No one notified sign owner Hobbs of this action. Id. When Hobbs discovered that the sign permit had been cancelled, he began efforts to keep his existing nonconforming sign in the same physical location, by seeking to obtain a new sign permit for the permitted location where his sign continued to exist. Here, on the other hand, Carter voluntarily removed its sign from the permitted location and erected a new sign at a nearby location without a permit. Hobbs is materially distinguishable from, and thus inapposite to, this case. Carter’s second exception is rejected. In its third exception, Carter takes issue with Conclusions of Law 61 and 63 of the Recommended Order claiming that the ALJ erroneously concluded that Florida Administrative Code Rule 14- 10.007(6) (b) provides an objective test for determining a party’s intent pertaining to abandonment. Carter’s complaint that the ALJ mistakenly read an intent element into the rule is well-taken. The | full text of Rule 14-10.007(6) (b) is silent with respect to ascertaining a party’s intent to abandon a nonconforming sign. Consequently, the first sentence of Conclusion of Law 61 is modified to read: “Additionally, rule 14-10.007(6) (b) provides an objective test for determining whether a sign has been abandoned or discontinued, namely....” The Department finds that this modification of Conclusion of Law 61 is as or more reasonable than the original conclusion. To the extent Carter is suggesting that Rule 14- 10.007(6) (b) is invalid because it lacks an intent requirement, “Carter’s exception is rejected because the instant action is not a rule challenge proceeding pursuant to Chapter 120.56, Florida Statutes. Moreover, insofar as Carter’s third exception is 10 addressed to Conclusion of Law 63 it is rejected because the ALJ did not make a determination regarding “intent” to abandon the Tabernacle Sign but simply noted that Carter had voluntarily moved the sign from the original site. As the final point in its third exception, Carter complains that the ALJ failed to acknowledge that Plorida Administrative Code Rule 14-10.007(5) provides that nonconforming signs may be relocated to conforming locations. Although the ALJ did not cite Rule 14-10.007(5) in Conclusions of Law 61 and 63, the ALJ’s determination in Conclusion of Law 62 that Carter did not relocate the Tabernacle Sign to a conforming location under the law demonstrates that the ALJ considered the operation of Rule 14-10.007(5), and determined that Carter had not relocated the Tabernacle Sign in conformity with the rule. Carter’s third exception in this regard is rejected as well. Carter next takes exception to Conclusion of Law 62 of the Recommended Order contending that the ALJ erred in concluding that the only possible relocation of nonconforming signs is a relocation made necessary by a public works project and only if the sign is moved within 100 feet of the original location with the Department’s approval pursuant to Sections 479.15(3)-(6), Florida Statutes, and Florida Administrative Code Rule 14- 10.004(11). Again, the ALJ’s conclusion that Carter did not relocate the Tabernacle Sign to a conforming location under the 11 law demonstrates that the ALJ considered the operation of Florida Administrative Code Rule 14-10.007(5), and determined that Carter had not relocated the Tabernacle Sign in conformity with the rule which provides: “A nonconforming sign may not be relocated, except to a conforming location.” Carter’s fourth exception is rejected. Carter’s fifth exception addresses Conclusion of Law 66 of the Recommended Order. Carter asserts that the ALJ erred in concluding that she need not consider any of Carter's contentions claimed under intervenor status pertaining to the denial of CBS’ outdoor advertising permit application. Regarding Carter’s attempt to inject new issues into the CBS permit application proceeding, the ALJ concluded: Even though Carter refers to itself as an intervenor in its Proposed Recommended Order and contends it can advance = additional grounds for the denial of CBS’s. application based on its intervenor status, Carter did not petition for leave to intervene in this matter pursuant to rule 28-106.205. Accordingly, Carter is not an intervenor and the undersigned need not consider any of Carter's contentions claimed under intervenor status. The record confirms that Carter was not an intervenor in the CBS action. Moreover, Carter did not appear as a party in the CBS action as contemplated by Section 120.52(13) (b), Florida Statutes (2011), and the consolidation of the Carter and CBS cases did not operate to make Carter a party to the CBS action. 12 OneBeacon Insurance Co. v. Delta Fire Sprinklers, Inc., 898 So. 2d 113, 116 (Fla. Sth DCA 2005). Carter’s fifth exception is rejected. In its sixth exception, Carter challenges Conclusion of Law 67 of the Recommended Order claiming that the ALJ erred in concluding that any issues related to the City of Miami are not before this tribunal. The City of Miami issues were additional issues Carter raised with respect to the CBS permit application ‘action. As concluded in the disposition of Carter’s fifth exception, Carter was neither an intervenor in, nor a party to, the CBS action and could not, therefore, advance additional grounds for the denial of CBS’ applications. The ALJ properly concluded that any issues related to the City of Miami were not properly before her. Carter's sixth exception is rejected. Carter’s seventh exception is directed to Conclusion of Law 68 of the Recommended Order. Carter contends that the ALJ erred in concluding that Carter’s assertion of application priority is a red herring and that under any analysis CBS submitted its outdoor advertising application on October 1, 2009, and is first in line before either of Carter’s 2009 application submissions. Conclusion of Law 68 is clearly supported by unchallenged Findings of Fact 26 and 37 through 44, which deal with the timing of the Carter and CBS applications, 13 and ali of which are supported by competent substantial evidence. Carter’s seventh exception is rejected. Finally, Carter takes exception to Conclusions of Law 69 and 70 of the Recommended Order where the ALJ concluded that CBS met its burden to show that its application was properly filed and administered by the Department and the Department has no grounds to withhold the permit from CBS as the sole reason for application denial ceases to exist. Carter’s exception is based upon the reasoning it advanced in its fifth, sixth, and seventh exceptions. In light of the disposition of those exceptions, Carter’s eighth exception is rejected. CBS’ In its first exception CBS requests that the Preliminary Statement in the Recommended Order be clarified to reflect that by. stipulation of the parties, Lynn Holschuh’s deposition testimony was submitted for the ALJ’s consideration. This Final Order notes the submission of Ms. Holschuh’s deposition. CBS’ first exception is accepted. CBS’ second exception is directed to Finding of Fact 8 of the Recommended Order. CBS contends that the ALJ’s finding that around August 2008, Carter began looking for a new location for the Tabernacle sign is not supported by competent substantial evidence insofar as the record testimony shows that Carter had 14 acquired a building permit from the City of Miami for the DeVecht site on April 9, 2008. CBS’ second exception is well- taken. Consequently, Finding of Fact 8 is amended to read: “Prior to April 9, 2008, Carter began looking for a new location for the Tabernacle Sign.” CBS next takes exception to Finding of Fact 10 of the Recommended Order claiming that it should be clarified to reflect that the permits Carter obtained for its new location were City of Miami and not Department permits. Read in context with Finding of Fact 9, it is clear that the ALJ was referring to City of Miami permits. CBS’ third exception is rejected. CBS’ fourth exception, for purposes of clarification, takes issue with Conclusion of Law 59 of the Recommended Order insofar as it does not reference Carter’s stipulation that at some time in’ 2008 or 2009, the sign structure comprising the Tabernacle Sign structure ceased being at 3825 NW 2nd Avenue, Miami, Florida. Carter’s stipulation forms part of the evidentiary basis for the ALJ's finding that the nonconforming sign no longer exists at the permitted location. An additional factual finding to reflect the existence and contents of the stipulation is unnecessary and, in any event, inappropriate. Rogers, 920 So. 2d at 30. CBS’ fourth exception is rejected. CBS's fifth exception seeks clarification of Conclusion of Law 60 of the Recommended Order to reference the fact that Scott 15 Carter testified that Carter did not intend to rebuild the Tabernacle Sign at its permitted location. Although the exception is directed to.a conclusion of law, CBS is essentially requesting the Department to make an additional finding of fact. The Department cannot do so. Rogers, 920 So. 2d at 30. CBS’ fifth exception is rejected. In its sixth exception, CBS seeks the addition of language to Conclusion of Law 60 of the Recommended Order addressing the relevance of findings of fact referencing the posting of tags at Carter’s new location and the Tabernacle Church site. Conclusion of Law 60 refers to legal arguments advanced by Carter in its proposed recommended order and specifically addresses Carter’s reliance upon. the Hobbs decision. The relevance of whether, or where, the permit tags had been posted has no bearing upon the matter addressed in Conclusion of Law 60. CBS’ sixth exception is rejected. CBS’ seventh exception takes issue with Conclusion of Law 61 of the Recommended Order insofar as the ALJ concluded that Florida Administrative Code Rule 14-10.007(6)(b) provides an objective test for determining a party’s intent to abandon a nonconforming sign. CBS notes that the rule does not specifically reference intent and contends that the conclusion should be modified by replacing “a party’s intent” with the phrase “whether a sign has been abandoned or discontinued.” 16 Based upon the reasoning and modification of Conclusion of Law 61 set out in the disposition of Carter’s third exception, CBS’ seventh exception -is accepted. In its eighth exception, CBS seeks clarification of Conclusion of Law 62 of the Recommended Order to reflect that Carter’s argument that it relocated the nonconforming Tabernacle sign was grounded on Florida Administrative Code Rule 14- 10.007(5). The ALJ’s conclusion that Carter did not relocate the Tabernacle Sign to a conforming location under the law necessarily is a rejection of any contention that Carter relocated the Tabernacle Sign in conformity with the rule which provides: “A nonconforming sign may not be relocated, except to a conforming location.” CBS’ eighth exception is rejected. CBS’ last exception is directed to Conclusion of Law 66 of the Recommended Order and seeks supplementation of the conclusion to reflect that additional issues Carter sought to raise were never pled by Carter or any other party and were not attempted to be raised in these proceedings until shortly before the hearing in this case, over the objections of CBS and the Department. In light of the disposition of Carter’s fifth and sixth exceptions, CBS’ requested supplementation of Conclusion of Law 66 is unnecessary. CBS’ ninth exception is rejected, 17 THE DEPARTMENT The Department first takes issue with Conclusion of Law 55 of the Recommended Order wherein the ALJ concluded that the Department’s burden of proof in the Carter permit revocation case was by clear and convincing evidence. The. Department assérts that its burden of proof was instead by a preponderance of the evidence. In Woody Drake Advertising, Inc. Vv. Department of Transportation, Case No. 09-5187 (DOAH Jan. 7, 2010), the administrative law judge addressed the burden and standard of proof applicable to a proceeding to revoke an outdoor advertising sign permit concluding: 24. As the party seeking to revoke the sign permit, Respondent bears the burden to prove its allegation by a preponderance of the evidence. Fla. Dep’t of Transp. v. J.W.C., 396 So. 2d 778, 788 (Fla. lst DCA 1981). “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, “uw The instant matter is not a penal or licensure disciplinary proceeding, and there are no other statutes establishing the standard of proof for the revocation of an outdoor advertising sign permit. The Department’s exception is well-taken and Conclusion of Law 55 is modified to read: “Accordingly, the Department bears the burden of proof by a preponderance of the 18 evidence as the party seeking to revoke Carter’s sign permits tag numbers BV314/315 in DOAH Case Number 11-1681.” The Department finds that this modification of Conclusion of Law 55 is as or more reasonable than the original conclusion. The Department’s second and final exception is directed to Conclusion of Law 61 of the Recommended Order where the ALJ concluded that Florida Administrative Code Rule 14-10.007 (6) (b) provides an objective test for determining a party’s intent to abandon a nonconforming sign. The Department contends that intent is not an element of proof needed to establish abandonment and requests that the conclusion be modified to read: “Additionally, Rule 14-10.007(6) (b) provides an objective test for determining abandonment, namely...” Based upon the reasoning and modification of Conclusion of Law 61 set out in the disposition of Carter’s third exception, the Department's second exception is accepted. FINDINGS OF FACT After review of the record in its entirety, it is determined that the Administrative Law Judge’s Findings of Fact in paragraphs 1 through 7, 8 as modified, and 9 through 50 of the Recommended Order are supported by competent, substantial evidence and are adopted and incorporated as if fully set forth herein. 19 CONCLUSIONS OF LAW 1. The Department has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Chapters 120 and 479, Florida Statutes. 2. The Conclusions of Law in paragraphs 50 through 54, 55 as modified, 56 through 60, 61 as modified, and 62 through 70 of the Recommended Order are fully supported in law, and are adopted and incorporated as if fully set forth herein. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is | ORDERED that Carter Outdoor Advertising’s permits for a double-faced sign bearing permit tag numbers BV314 and BV315 located in the City of Miami at 3825 NW 2nd Avenue, are revoked. It is further 20 ORDERED that CBS Outdoor, Inc .'s Outdoor Advertising Permit Application Nos. 57663 and 57664, for a proposed sign site located in the City of Miami at 3800 Northwest 2nd Avenue, are granted. DONE AND ORDERED this ot aay fe) ly, f4012. fod Ananth Prasad, P.E. Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Pe sD Coe ry Ge 2 — 2 = 9° aA eo aes gf 8 mM 21 NOTICE OF RIGHT TO APPEAL THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN 30 DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Kimberly C. Menchion, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399 June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee,. Florida Carol Ann Licko, Esquire Hogan Lovells US LLP 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Thomas R. Bolf, Esquire Greenspoon Marder, P.A. 15th Floor 200 East Broward Boulevard Fort Lauderdale, Florida 33301 22 STATE OF FLORIDA DIVISION. OF ADMINISTRATIVE HEARINGS CARTER OUTDOOR ADVERTISING, Petitioner, vs. Case No. 11-1681 DEPARTMENT OF TRANSPORTATION, Respondent. CBS OUTDOOR, INC., Petitioner, vs. Case No. 11-1682 DEPARTMENT OF TRANSPORTATION, ‘Respondent. we eS SNS NS Sa SS eae ewer en RECOMMENDED ORDER Pursuant to notice, a formal hearing was held in this case on October 18 and 19, 2011, in Miami, Florida, and January 25, 2012, in Tallahassee, Florida, before June C. McKinney, a duly- designated Administrative Law Judge of the Division of Administrative Hearings. APPEARANCES For Petitioner Carter: Carol Ann Licko, Esquire Hogan Lovells US: LLP 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 For Petitioner CBS: Thomas R. Bolf, Esquire Greenspoon Marder, P.A. 15th Floor 200 East Broward Boulevard Fort Lauderdale, Florida 33301 For Respondent: Kimberly Clark Menchion, Esquire Department of Transportation The Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 STATEMENT OF THE ISSUE The issues in this case are: whether the Department of ' Transportation ("Department") properly issued a Notice of Intent to Revoke Sign Permit for Violation to Carter Outdoor Advertising a/k/a Carter Pritchett Advertising. ("Carter") for the outdoor advertising sign permitted with tag numbers BV314/315 and whether the Department properly denied CBS Outdoor, Inc.'s ("CBS") application for outdoor advertising sign permit based on a spacing conflict with the outdoor advertising sign permitted with tag numbers BV314/315. . PRELIMINARY STATEMENT On October 30, 2009, the Department issued CBS a Notice of Denied Outdoor Advertising Permit Application advising that CBS' application was not approved for the following reason: Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP). In conflict with permitted sign(s), tag#(s): BV314/315. Held by: Carter-Pritchett. [s.479.07(9)(a), 1.,& 2, FS] On December 18, 2009, the Department issued a Notice of Intent to Revoke Sign Permit for Violation, advising Carter that the Department intended to revoke its permit, pursuant to section 479.08, Florida statutes for the following violation: This nonconforming sign no longer exists at the permitted location and is deemed abandoned by the Department, pursuant to s. 14- 10.007(6)(b), Florida Administrative Code. On November 19, 2009, CBS filed a Petition for Formal Proceedings, requesting a "formal administrative hearing" on the Departments' preliminary denial of its application. By letter dated January 15, 2010, and received by the Department on or about January 20, 2011, Carter requested an informal administrative hearing, challenging the Notice of Revocation. An informal hearing was held on March 18, 2011, on CBS's Petition to Intervene and Motion to Transfer to the Division of Administrative Hearings. The Department relinquished jurisdiction to the Division of Administrative Hearings ("DOAH"). On April 5, 2011, the Department referred the matters to DOAH. Petitioner Carter is the subject of DOAH Case No. 11-1681. Petitioner CBS is the subject of DOAH Case No. 11-1682. On April 14, 2011, the parties filed a Joint Motion to Consolidate DOAH Case Nos. 11-1681 and 11-1682, which the undersigned granted by Order of Consolidation issued April 22, 2011. The final consolidated hearing, as noted above, was scheduled for June 14 and 15, 2011. The undersigned granted a continuance and the case was rescheduled for August 23 and 24, 2011. After several continuances, the final consolidated hearing was held@ on October 18 and 19, 2011, in Miami, Florida, and January 25, 2012, in Tallahassee, Florida. At the final hearing, Carter presented the testimony of seven witnesses: Rex Hodges, a principal of Carter, who testified as the corporate representative for Carter; Scott Carter, a principal of Carter and a representative of Scott Carter Signs, Inc.; Jean Jose, a representative of the Tabernacle God in Christ, Inc.; Joe Little, CBS's Vice President of Real Estate for the Southeast Region; Ed Scherer, a former real estate representative for CBS; Vanessa Acosta, the current Assistant Director of Building for the City of Miami and the former Assistant Director of Building and Zoning for the City of Miami; and Orlando Toledo, a former representative of the City of Miami, who worked for the City of Miami as the Zoning Administrator, Director of Building, Zoning and Planning, and Director of Building and Zoning. Petitioner's Exhibits 2, 4 and 5, 9, 11 and 12, 15 through 18, 21, 24 though 32, 40, 42, 43, 47 through 51, 55 and 56, 59, 61 though 71, 73 though 85 and 87, 88, and 92, 96, 115, 117 and 118 were received into evidence. CBS presented the testimony of two witnesses: Daniel Blanton, a surveyor who testified as an expert; and Joe Howard Little, CBS's Vice President of Real Estate for the Southeast Region, who testified as corporate representative for CBS. Petitioner's Exhibits numbered 4, 13 and 14, 18 and 19, 23, 26, 30, 33A, 39 and 40, 42 through 44, 48, 51 and 52, 55, 57 through 62 were received into evidence. The Department presented the testimony of two witnesses: Robert Jessee, the Department's Manager of Outdoor Advertising and Logo, who testified as corporate representative for the Department; and Mack Barnes, a representative of Cardno TBE and consultant for the Department, who served as an outdoor advertising inspector. The Department's Exhibits numbered 1 through 19 were received into evidence. The proceedings were recorded and transcribed. The October 18 and 19, 2011, Transcripts were filed at the DOAH on December 19, 2011, and Transcripts Volumes III and IV for the January 25, 2011, hearing were filed on February 13, 2012. All parties availed themselves of the right to submit proposed recommended orders. Both Petitioners and Respondent timely filed Proposed Recommended Orders. The undersigned has considered the Proposed Recommended Orders, as well as the testimony and exhibits presented at hearing in the preparation of this Recommended Order. FINDINGS OF FACT Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: 1. The City of Miami is a competitive market for billboards. 2. On December 14, 1998, the Department issued outdoor advertising permits to Carter for the erection of a double-faced sign and assigned permit tag numbers BV314/315 to 3825 NW 2nd Avenue, Miami, Florida, 0.980 miles east of I-95 at milepost 0.906 (the "Tabernacle Sign"). 3. Carter leased the property for the Tabernacle Sign from the Tabernacle God in Christ, Inc. | 4. The Tabernacle Sign was initially permitted by the Department as a conforming sign. 5. On or about February 6, 2002, the Tabernacle Sign was changed to nonconforming status pursuant to a settlement between Carter and the Department. 6. On August 18, 2003, Carter entered into a settlement agreement with the City of Miami, which lLimited/restricted the number of signs Carter can maintain in.Miami to 20. The settlement agreement also protects the Tabernacle Sign as one on Carter's list of billboards protected by the City until 2028. 7. %In late 2007, the Tabernacle God in Christ, Inc. decided to sell the property Carter leased for the Tabernacle Sign, and the ‘church listed the location for sale. The church would not allow Carter to purchase an easement to maintain the Tabernacle Sign at the location. 8. Around August 2008, Carter began looking for a new location for the Tabernacle Sign. 9. Carter first leased a vacant lot as a "new location" for the billboard. On April 9, 2008, the City of Miami issued a building permit to Carter for a billboard at the new location. 10. After Carter obtained the permits for the new location and was ready to construct the billboard, Carter developed concerns regarding Florida Power and Light Company setbacks and decided to identify an alternative location for the billboard sign. 11. During Carter's search for an alternative location, Carter's goal was to have a conforming billboard. 12. Carter identified an alternate location at a site directly to the west of the new location at 221 Northwest 38th Street, Miami, Florida ("new Carter site"), which is not within 100 feet of the Tabernacle church site. 13. Carter performed the soil boring tests to design the foundation for the billboard at the new Carter site. 14. On September 30, 2008, Carter obtained a building permit from the City of Miami for a billboard at 221 Northwest 38th Street. The City of Miami transferred the permit fees previously paid in connection with the new location to the new Carter site. 15. Subsequently, Carter purchased the property at the new Carter site. Carter also performed a substantial amount of preparatory work, including engineering work and the preparation of a survey to place a conforming sign at the _ Carter site, 16. On October 10, 2008, Carter closed on its land purchase for the new Carter site. 17. On October 21, 2008, Scott Carter Signs, Inc. ("Carter Signs"))/ installed the concrete footer for Carter at the new’ Carter site in preparation to install the sign. 18. On December 2, 2008, Carter Signs took down the Tabernacle Sign from the permitted location at 3825 NW 2nd Avenue and moved it to Fort Myers, Florida. The company's work order provided the following instructions for the move: "Take down existing sign structure DISASSEMBLED and LOAD ONTO SEMI'S TRANSPORT TO FT. MYERS UNLOAD IN YARD FOR ALTERATIONS. "?/ 19. AS part of the move, the Tabernacle Sign was dismantled. The upper structure, which holds both sign faces, as well as every beam, pole, and stringer was removed from the Tabernacle church site and transported to Fort Myers. 20. When Carter Signs removed the Tabernacle Sign, the permitted tags BV315/314 were also removed from the permitted location. 21. After upgrading the Tabernacle Sign at the storage yard in Fort Myers, Carter Signs re-erected the sign on December 4, 2008, at the new Carter site, a non-permitted location. 22. On January 21, 2009, Carter obtained an electrical permit from the City of Miami for the new Carter site. 23. During the first half of 2009, CBS identified property as a potential location for a sign. At the time, CBS was aware that the identified property was next door to the new Carter site, 25 feet away, and only 200 feet from the Tabernacle of God church location. 24. On or about April 15, 2009, the final inspection for the new Carter site location was completed by the City of Miami. 25. On or about September 29, 2009, CBS obtained local government permission from the Zoning Administrator for the City of Miami for its proposed location. 26. On October 1, 2009, CBS submitted an application to the Department for outdoor advertising permits for a structure with two faces knowing that the site was located next to the new Carter site. “the Department assigned the CBS application numbers 57663 and 57664 for the location 3800 Northwest 2nd Avenue off I-95 in Miami, Florida ("proposed site"). 27. CBS was aware that Carter had obtained a building permit to erect signs at new Carter site before making application to the Department. 28. The Department hired Cardno TBE, an engineering firm, to perform its fieldwork relating to the CBS application. 29. On or about October 9, 2009, Mack Barnes ("Barnes"), a Cardno TBE outdoor advertising inspector, was assigned to perform an outdoor advertising inspection and site visit related to the CBS application dated October 1, 2009. 30. Barnes performed field measurements during his inspection to evaluate CBS' application for the Department. Barnes discovered that the distance between CBS' proposed site location for its sign and the nearest permitted signs measured less than 1,500 feet from a permitted location that was assigned tag numbers BV314/315. 31. While performing the fieldwork, Barnes discovered a sign structure bearing tag numbers BV314/315 on the catwalk located at milepost 0.873, not at the permitted location at milepost 0.906. 32. Barnes filled out an illegal compliance report for the structure at 0.873 that was not permitted. 33. On October 30, 2009, Barnes also walked the whole perimeter of the Tabernacle of God Christ church site and discovered that the Tabernacle Sign was no longer located at its 10 permitted location. Additionally, tags BV314/315 were not posted or hanging from any location at the church site. 34. On or about October 22, 2009, CBS submitted a letter to the Department with attached photographs stating: We believe if you conduct your own investigation, you will come to the inescapable conclusion that Carter's sign permitted by BV314/315 has been disassembled and removed. The former location was non- conforming under state law and they have no authority to re-establish their position there. Their new sign at 221 NW 38th St[reet] is being illegally maintained pursuant to FS 497, 14-10.007(4), and 14-10.007(6)(b). As such, we respectfully request that you not consider this illegal location in the review of the CBS Outdoor application 57663/57664 at 3800 NW 2nd Ave[nue].[?/] 35. On or about October 28, 2009, Carter obtained local government permission from the Zoning Administrator of the City of Miami for the new Carter site. 36. Carter also secured a building permit from the City of Miami to re-erect the sign. 37. On or about October 30, 2009, Carter submitted an application to the Department for an outdoor advertising permit assigned application numbers 57723 and 57724, for new tags for the new Carter site at milepost 0.873. 38. Rex Hodges ("Hodges"), a principal of Carter, explained at hearing it was a mistake for Carter to wait so long to submit the application for the new Carter site location even though the 11 company was "working on multiple locations." He also admitted, "[we] knew needed a permit before could move the Tabernacle Sign to 221 Northwest 38th Street. . . . [we] were very busy and [it] fell through the cracks." 39. On October 30, 2009, the Department issued a Notice of Denied Application to CBS providing the following grounds for the proposed action: "Sign does not meet spacing requirements (1500' for Interstates, 1000' for FAP). In conflict with permitted sign(s), tag#(s): BV314/315, Held by: Carter Pritchett." 40. On November 10, 2009, the Department returned Carter's October 30, 2009, application for incompleteness. Carter failed to include the required information regarding designation for future land use and paid an $88.75 application fee instead of an $87.00 fee." 41. On November 16, 2009, the Department issued Carter a Notice of Violation-Illegally Erected Sign ("Notice") for the unpermitted erected carter sign at the new Carter site. 42. The Notice specified that Carter may file a completed application for a state outdoor advertising permit to determine whether the sign structure is eligible for issuance of permit. Carter did not submit a request for hearing in response to the Notice. 12 43. On or about November 19, 2009, CBS filed its petition protesting its Notice of Denied Application and requested a formal hearing. 44. On November 23, 2009, Carter resubmitted the October 30, 2009, completed application for the new Carter site. The Department assigned Carter's application numbers 57749 and 57750 for the new Carter site. The Department deemed the Carter application complete but did not process it due to the pending October 1, 2009, application for CBS' outdoor advertising sign permit within the same vicinity. 45. On or about December 4, 2009, Barnes performed a field review for Carter's application 57749 and 57750 and discovered that tags BV314/315 were still on the billboard catwalk at the new Carter site. 46. The Department's inspection and investigation revealed that Carter's nonconforming Tabernacle Sign was not located at the permitted location. 47. Based upon the investigation, on or about December 18, 2009, the Department issued a Notice of Intent to Revoke Sign Permit for Violation to Carter. The notice provided the following basis for revocation: "This nonconforming sign no longer exists at the. permitted location and is deemed abandoned by the Department, pursuant to s. 14-10.007(6)(b), Florida Administrative Code." 13 48. Carter only recognized that the permit tags BV314/315 were not at the Tabernacle church site after being notified by the Department. Hodges sent Carter's crew to find the tags, which were posted on the catwalk of the sign at the new Carter site. Tags BV314/315 were not permitted for the new Carter site. 49. After the tags were located, Hodges personally took the permit tags BV314/315 and attached them to the fence surrounding the Tabernacle church on a tag board on or about December 19, 2009. . 50. On January 15, 2010, Carter protested the Notice of Intent to Revoke. CONCLUSIONS OF LAW 51. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.57(1). 52. Chapter 479 provides Respondent the authority to regulate outdoor advertising and to issue permits for "signs in areas adjacent to state highways." 53. This proceeding is de novo. § 120.57(1)(k), Fla. Stat. 54. The party seeking the affirmative of an issue before an administrative tribunal bears the burden to prove its allegation. Fla. Dep't of Transp. v. J.W.C., 396 So. 2d 778, 788 (Fla. Ist DCA 1981). "Findings of fact shall be based upon a preponderance of 14 the evidence, except in penal or licensure disciplinary proceedings, . ...-" §& 120.57(1)(43), Fla. Stat. 55. Accordingly, the Department bears the burden of proof by clear and convincing evidence as the party seeking to revoke Carter's sign permits tag numbers BV314/315 in DOAH Case Number 11-1681. Likewise, Petitioner CBS, as the applicant bears the burden of proving, by a preponderance of the evidence that it should be granted the permit for which it has applied in DOAH Case Number 11-1682. 56. Section 479.02(1) gives Respondent the authority to administer and enforce the provisions of chapter 479. An agency is afforded wide discretion in the interpretation of the statute: which it administers. Republic Media_v. Dep't of Transp., 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998); Atlantic Outdoor Advertising v. Dep't of Transp., 518 So. 2d 384, 386 (Fla. 1st DCA 1987), rev. denied, 525 So. 2d 876 (Fla. 1988); Natelson v. Dep't of Ins., 454 So. 2d 31, 32 (Fla. ist DCA 1984), pet. for rev. denied, 461 So. 2d 115 (Fla. 1985). Carter's Notice of Intent to Revoke Sign Permit for Violation 57. The Department's determination regarding the Notice of Intent to Revoke Sign Permit for Violation issued to Carter is based on Florida Administrative Code Rule 14-10.007(6)(b), which provides in pertinent part: 15 (6) A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. "Destroyed," "abandoned," and "discontinued" have the following meanings: * *k * (b) A nonconforming sign is "abandoned" or "discontinued" when a sign structure no longer exists at the permitted location or the sign owner fails to operate and maintain the sign for a period of 12 months or longer. Signs displaying bona fide public interest messages are not “abandoned” or "discontinued" within the meaning of this section. . The following conditions shall be considered failure to operate and maintain the sign: 1. Signs displaying only an "available for lease" or similar message, 2. Signs displaying advertising for a product or service which is no longer available, 3. Signs which are blank or do not identify a particular product, service, or facility. 58. The definition of "sign structure” in section 479.01(24) provides in pertinent part: (24) "Sign structure" means all the interrelated parts and material, such as beams, poles, and stringers, which are constructed for the purpose of supporting or displaying a message or informative contents. 59. The evidence in this case demonstrated that Carter violated the nonconforming sign policy of the Department expressed in the criteria set forth in the rule provisions quoted above. The record evidence indisputably shows the Department issued Carter tags BV314/315 for the permitted location, 3825 Northwest 2nd Avenue, in Miami. The evidence further demonstrates that on 16 December 2, 2008, Petitioner Carter voluntarily disassembled the nonconforming Tabernacle Sign and moved all the beams, poles, stringers, faces, and interrelated parts to Fort Myers for an upgrade. On December 4, 2008, Carter re-erected the sign at the new Carter site, thereby abandoning the 3825 NW 2nd Avenue location because the nonconforming sign "no longer exists" at the permitted location. 60. The arguments asserted by Carter in its Proposed Recommended Order do not change Carter's abandoned status. Carter contends that it did not abandon the Tabernacle Sign because the Department failed to show Carter "intentionally and voluntarily relinquished further use of the Tabernacle Sign." This case is distinguishable from Hobbs v. Dep't of Transp., 831 So. 2d 745, (Fla. 5th DCA 2002), in that Carter belatedly sought a permit for a new location, after voluntarily removing the permitted nonconforming sign from its original location, which is totally unlike the owner in Hobbs, who immediately took action to obtain a new permit for the sign, once he learned that the previous permit had been canceled. 61. Additionally, rule 14-10.007(6)(b) provides an objective test for determining a party's intent, namely: (a) is the sign structure still at the permitted location or (b) has the sign been operated and maintained at the site in the prior 12 months?®/ T£ 17 the answer is no, as in this case, then the sign is abandoned and discontinued. 62. Carter's argument that it relocated the nonconforming Tabernacle Sign is also rejected. Section 479.15(3)-(6) and rule 14-10.004(11) limit the circumstances under which relocation applies in that a nonconforming-.sign can be relocated only if: (a) it is made necessary by a public road works project; (b) the sign is moved within 100 feet. of the original location; and (c) the party has the Department's approval. The credible evidence in this matter shows that the new Carter site is more than 100 feet away from the Tabernacle Sign site, Carter failed to get the Department's permission to move, and the record is void of any evidence that the Department acquired public land on which the Tabernacle Sign was situated or any Department project existed that impacted the property on which the sign was lawfully situated. Further, Hodges testified at hearing that Carter knew that it needed a permit before it could move the Tabernacle Sign. Therefore, Carter did not relocate the nabernacle Sign to a conforming location under the law. 63. The Department has met its burden and demonstrated that - Carter abandoned-not relocated-the sign as argued by Carter because the Tabernacle Sign "no longer exists" at the permitted location due to Carter voluntarily removing it on December 2, 2008, in violation of rule 14-10.007(6)(b). Therefore, Carter's 18 permit should be revoked under the Department's authority in section 479.08. CBS Notice of Denied Application 64. The Department denied CBS' application for a permit providing the following grounds for the proposed action: "Sign does not meet spacing requirements (1500' for Interstates, 1000' for FAP). In conflict with permitted sign(s), tag#(s): BV314/315. Held by: Carter Pritchett." 65. The spacing requirement that the Department claims crs’ 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 “one thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway." | 66. Carter seeks to inject numerous other issues into this . proceeding concerning CBS' application that the Department did not allege in its Notice of Denied Outdoor Advertising Permit Application. Even though Carter refers to itself as an intervenor in its Proposed Recommended Order and contends it can advance additional grounds for the denial of CBS's application based on its intervenor: status, Carter did not petition for leave to intervene in this matter pursuant to rule 28-106.205. Accordingly, Carter is not an intervenor and the undersigned need not consider any of Carter's contentions claimed under intervenor status. Therefore, the undersigned declines to consider any 19 additional issues Carter raises as grounds for CBS's denial other than the Department's sole noticed issue of spacing. 67. Even if the undersigned considered Carter's lengthy argument in its Proposed Recommended Order regarding the City of Miami's completion and execution of local permission forms in error and whether they are contrary to the City of Miami's policy, any issues related to the City of Miami are not before this tribunal. 68. Further, Carter's assertion of application priority is a red herring. The bottom line is the Department processes sign permit applications in the order of the date and time of receipt of completed applications pursuant to rule 14-10.004(1)(c)- Therefore under any analysis, CBS submitted its outdoor advertising permit application on October 1, 2009, and is first in line before either of Carters’ 2009 application submissions. 69. Petitioner CBS does not dispute that its proposed sign is less than 1,500 feet from the nearest permitted sign on the same side of the highway [I-95]. Rather, CBS has taken the position and met its burden to show that its application was properly filed and administered by the Department. . 70. Since the undersigned has determined that the permit issued for Carter sign bearing tag numbers BV314/315 should be revoked based on abandonment, the Department has no grounds to withhold the permit from CBS as the sole reason for application 20 denial ceases to exist. Accordingly, the CBS spacing conflict is resolved and there is no further basis to deny CBS' permit applications. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Department of Transportation enter a final order upholding Carter's Notice of Intent to Revoke Sign Permit for Violation and that the Department grant CBS' permit applications. DONE AND ENTERED this 17th day of April, 2012, in Tallahassee, Leon County, Florida. JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2012. 21 ENDNOTES 1, Scott Carter Signs is a family business that builds, installs, and disassembles signs. The company has been in outdoor advertising since at least 1956. Scott Carter has been in the sign business since a child, grew up in the business, and inherited the company from his father in 1977. 2/7 Carter's Exhibit 80. 3/- Carter's Exhibit 45. ‘47 Due to recent changes in the fee scale, the Department would have processed Carter's application if the only issue had been the incorrect application fee. However, the Department could not process the application without the information regarding designation for future land use. : 5/7. Carter also fails to meet the criteria of section (b). The record shows that Carter neither operated nor maintained the site from December 2, 2008, when Carter voluntarily removed the sign and tags, until at least December 19, 2009, when Hodges placed the tags on the Tabernacle church fence, which is over 12 months. COPIES FURNISHED: Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Anath Prasad, Secretary Department of Transportation Haydon Burns Building, 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 22 Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Carol Ann Licko, Esquire Hogan Lovells US LLP 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Thomas R. Bolf, Esquire Greenspoon Marder, P.A. 15th Floor 200 East Broward Boulevard Fort Lauderdale, Florida 33301 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. 23

Docket for Case No: 11-001682

Orders for Case No: 11-001682