STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALVATORE ROMANELLI,

vs.

Petitioner,

Case No. 13-4043

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on February 5, 2014, by video teleconference between sites in Lauderdale Lakes and Tallahassee, Florida, before Administrative Law Judge (ALJ) Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Salvatore Romanelli

19 Bowdon Road

Greenlawn, New York 11740

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

Whether Petitioner, the owner of an outdoor advertising sign structure with two faces, is entitled to a Vegetation Management

Permit for the respective view zones set forth in his

application.

PRELIMINARY STATEMENT

Petitioner applied to the Department of Transportation (DOT) for a vegetation management permit to protect the respective view zone of each face of his outdoor advertising sign. DOT denied Petitioner's application. Thereafter, Petitioner timely challenged DOT's decision to deny his application, the matter was referred to DOAH, and this proceeding followed.1/

At the formal hearing, Petitioner testified on his own behalf and offered 30 pre-marked exhibits into evidence.

Petitioner's pre-marked Exhibits 1 through 7, 10 through 21, and

23 through 30 were admitted. Petitioner's other pre-marked exhibits were rejected for reasons stated on the record. Following the close of the hearing, Petitioner moved to supplement the record by the addition of pre-marked Exhibits 31, 32, and 33. Without objection, those three exhibits were also admitted into evidence. Petitioner's motion to add a fourth exhibit (Petitioner's Pre-Hearing Statement) was rejected.

DOT presented the testimony of Morris Pigott, DOT's Administrator for Resource Management, the Office of

Right-of-Way. DOT offered six pre-marked exhibits, each of which was admitted into evidence.

A Transcript of the hearing, consisting of one volume, was filed with DOAH on February 24, 2014. At the request of Petitioner, the deadline for filing proposed recommended orders (PROs) was extended. Thereafter, the parties timely filed PROs, which have been duly considered by the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to Florida Statutes (2013).

FINDINGS OF FACT

1. DOT is the agency of the State of Florida responsible for regulating outdoor advertising signs located within 600 feet of the state highway system, interstates, or federal-aid primary highway system.

2. Petitioner is the owner of a v-shaped outdoor advertising sign structure with two faces located in Broward County, Florida, at the southwest intersection of Interstate 95 (I-95) and Interstate 595 (I-595). The sign structure and both sign faces are legally permitted. Each sign face has a separate tag number. Both tag numbers are permitted for I-95. Neither tag number is permitted to I-595.

3. The sign face with tag number CG158 faces in a northern direction and is visible to southbound traffic on I-95. Tag CG158 is also visible to traffic on I-595 and to traffic on connecting ramps leading on and off of I-595.

   
   

4. Tag CG159 faces in a southern direction and is visible to northbound traffic on I-95.

5. A Vegetation Management Permit authorizes the owner of a permitted outdoor advertising sign to maintain the landscaping in the Department of Transportation's (DOT) right-of-way so that the sign is not screened by vegetation.

6. Section 479.106, Florida Statutes, regulates vegetation management in public right-of-way, in relevant part, as follows:

   1. The removal, cutting, or trimming of trees or vegetation on public right-of-way to make visible or to ensure future visibility of the facing of a proposed sign or previously permitted sign shall be performed only with the written permission of the department in accordance with the provisions of this section.

      
      

   2. Any person desiring to engage in the removal, cutting, or trimming of trees or vegetation for the purposes herein described shall make written application to the department. The application shall include the applicant's plan for the removal, cutting, or trimming and for the management of any vegetation planted as part of a mitigation plan.

      
      

      * * *

      
      

      1. Beautification projects, trees, or other vegetation shall not be planted or located in the view zone of legally erected and permitted outdoor advertising signs which have been permitted prior to the date of the beautification project or other planting, where such planting will, at the time of planting or after future growth, screen such sign from view.

         
         

         1. View zones are established along the public rights-of-way of interstate highways, expressways, federal-aid primary highways, and the State Highway System in the state, excluding privately or other publicly owned property, as follows:

            
            

            1. A view zone of 350 feet for posted speed limits of 35 miles per hour or less.

               
               

            2. A view zone of 500 feet for posted speed limits of over 35 miles per hour.

            
            

         2. The established view zone shall be within the first 1,000 feet measured along the edge of the pavement in the direction of approaching traffic from a point on the edge of the pavement perpendicular to the edge of the sign facing nearest the highway and shall be continuous unless interrupted by existing, naturally occurring vegetation. The department and the sign owner may enter into an agreement identifying the specific location of the view zone for each sign facing. In the absence of such agreement, the established view zone shall be measured from the sign along the edge of the pavement in the direction of approaching traffic as provided in this subsection.

      
      

7. The applicable speed limit is over 35 miles per hour.

   
   

   Consequently, the view zone authorized by section 479.106(6)(a)2. is 500 feet.

8. Pursuant to Florida Administrative Code Rule

   
   

   14-10.057(1)(d)2., a sign face is entitled to only one view zone within the right-of-way of the roadway to which the sign is permitted.

   
   

9. Petitioner submitted with his applications drawings detailing his desired view zones for each sign face on July 11, 2013.

10. Petitioner applied for two view zones for CG158. The requested view zone for I-95 is more than 500 feet and is, consequently, inconsistent with section 479.106(6)(a)2. Petitioner's second requested view zone for CG158 is to I-595.

11. On July 29, 2013, DOT denied Petitioner's application for the requested view zone for Tag CG158 stating: "The view you requested is not allowed. This request exceeds the 500 and 1000 foot threshold set in Florida Statutes." DOT cited section 479.106(6)(a)2. and (b) as its authority. Tag CG158 was also denied for the following reason: "Your request for a view zone to Interstate 595 is not allowed by law. As [sic] your sign CG158 is legally permitted to Interstate 95." DOT again cited section 479.106(6)(a)2. and (b) as its authority. On October 18, 2013, DOT filed an amended notice of denial for Tag CG158 stating: "The view you requested is not allowed. The request exceeds the 500 foot threshold set forth in Florida Statutes." DOT again cited section 479.106(6)(a)2. and (b) as its authority. Tag CG158 was also denied for the following reason: "Your request for a view zone to Interstate 595 is not allowed by Law [sic]. As [sic] your sign CG158 is legally permitted to Interstate 95." DOT cited rule 14-10.057(1)(d) as its authority.

    
    

12. Petitioner applied for a view zone for CG159 that is more than 500 feet and is, consequently, inconsistent with section 479.106(6)(a). On July 29, 2013, DOT denied Petitioner's application for the requested view zone for Tag CG159 stating: "The view you requested is not allowed. This request exceeds the

    500 foot threshold set in Florida Statutes." DOT cited section 479.106(6)(a)2. and (b) as its authority.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1).

14. This is a de novo proceeding designed to formulate final agency action. See Hamilton Cnty Bd. of Cnty Comm'rs v. Dep't Envtl. Reg., 587 So. 2d 1378 (Fla. 1st DCA 1991) and

    section 120.57(1)(k), Florida Statutes.

    
    

15. As the applicant, Petitioner has the burden of proving his entitlement to the license he seeks by a preponderance of the evidence. See Dep't of Banking and Fin. v. Osborne Stern, 670 So. 2d. 932 (Fla. 1996) and Dep't of Transp. v. J. W. C. Co.,

    Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

16. A "preponderance" of the evidence means the greater weight of the evidence. See Fireman's Fund Indem. Co. v. Perry, 5 So. 2d 862 (Fla. 1942).

    
    

17. Petitioner has failed to meet his burden of proof in this proceeding. The greater weight of the credible evidence established that the requested view zones to I-95 are inconsistent with section 479.106(6)(a)2. The requested view zone to I-595 is inconsistent with rule 14-10.057(1)(d)2.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation deny the application for Vegetation Management Permit submitted by Salvatore Romanelli.

DONE AND ENTERED this 8th day of April, 2014, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 8th day of April, 2014.

ENDNOTE

1/ Petitioner's Proposed Recommended Order proposes that the undersigned order relief that the undersigned has no authority to recommend. Succinctly stated, Petitioner's sign faces are

permitted to I-95. Petitioner wants the undersigned to order that the sign faces also be permitted to I-595 and certain connecting ramps between I-95 and I-595, and to order screen views therefor. In the alternative, Petitioner asks that the undersigned order just compensation for any screening of his sign faces by DOT's landscaping. While Petitioner may be entitled to the relief he seeks, he cannot obtain that relief in this forum. Petitioner's sign was erected in 1989 while I-595 was under construction. Whether Petitioner is entitled to have the permit changed to include permitting to I-595 is beyond the scope of this proceeding.

COPIES FURNISHED:

Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Salvatore Romanelli

19 Bowdon Road

Greenlawn, New York 11740

Gerald B. Curington, General Counsel Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Ananth Prasad, Secretary Department of Transportation Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399

Trish Parsons, Agency Clerk Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-004043

Orders for Case No: 13-004043