STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

The final hearing in this matter was conducted before Brian A. Newman, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019),1 on February 11, 2020, in Tampa, Florida.

APPEARANCES

For Petitioner: Glenn N. Smith, Esquire

Elizabeth Somerstein Adler, Esquire Greenspoon Marder, P.A.

200 East Broward Boulevard, Suite 1800 Fort Lauderdale, Florida 33301

For Respondent: David Tropin, Esquire

Austin M. Hensel, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

1 Unless otherwise noted, all statutory references are to the 2019 Florida Statutes.

STATEMENT OF THE ISSUE

Whether Petitioner’s applications for outdoor advertising permits should be granted or denied.

PRELIMINARY STATEMENT

On April 18, 2017, Outfront Media, LLC, (Petitioner), filed two outdoor advertising permit applications with the Department of Transportation, (Department), seeking approval of a double-sided billboard structure to be located at 1131 North Church Avenue, Tampa, Florida. The Department denied the applications on May 16, 2017. Petitioner filed a petition for hearing to challenge the denials on June 16, 2017. Petitioner filed an amended petition for hearing on May 17, 2018, which was forwarded to the Division of Administrative Hearings on November 5, 2019. The final hearing was scheduled for February 11 through 13, 2020, at the request of the parties. On December 27, 2019, Petitioner was granted leave to file a second amended petition for hearing.

The final hearing was held on February 11, 2020, and was completed in one day. At the final hearing, Petitioner presented the testimony of Herbert McClelland, and Petitioner’s Exhibits 1 through 48 were admitted into evidence. Respondent presented the testimony of William Benson and Kenneth Pye. Petitioner filed a motion to exclude Mr. Pye as an expert witness. Petitioner’s motion was denied as moot because the Respondent did not call Mr. Pye as an expert witness. Respondent’s Exhibits 1 through 16 were admitted into evidence.

A two-volume Transcript was filed on March 4, 2020. Petitioner filed two motions requesting extensions of time to file proposed recommended orders. The motions were not opposed by Respondent and were granted. The parties

timely filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency responsible for regulating outdoor advertising along interstate and federal-aid primary highways in accordance with chapter 479, Florida Statutes.

2. Petitioner is in the outdoor advertising business. On April 18, 2017, Petitioner submitted two outdoor advertising permit applications for a double-sided billboard structure to be located at 1131 North Church Avenue, Tampa, Florida (Proposed Sign). Each permit application was for an individual sign face on the Proposed Sign. The location for the Proposed Sign was west of Dale Mabry Highway, a federal-aid primary highway, and north of I-275, an interstate highway.

3. The Department found Petitioner’s applications to be complete, and on April 19, 2017, the Department forwarded the applications to its field investigations contractor, Cardno TBE, to conduct a field review at the Proposed Sign location. During the field review, it was determined that the location for the Proposed Sign was 749.76 feet away from an existing sign owned by Clear Channel Outdoor–Clearwater (Clear Channel), bearing permit tag number AB065 (Sign AB065). Sign AB065 faces south, and is one face of a double-sided sign structure.2 Sign AB065 is located east of Dale Mabry Highway, and north of I-275.

4. It is undisputed that the Proposed Sign and Sign AB065 are visible from I-275, are within 1,500 feet of each other, and are located on the same side of I-275.

   
   

   2 The other face of Clear Channel’s double-sided sign structure bears permit tag number AB141 (Sign AB141). Sign AB141 is not, however, visible from I-275. Because it is not visible from I-275, Sign AB141 is not subject to the spacing requirements applicable to interstate highways and does not create a spacing conflict for the Proposed Sign, even though it is also located within 1,500 feet of the Proposed Sign.

5. The Department denied Petitioner’s permit applications, citing section 479.07(9)(a), because the Proposed Sign location is within 1,500 feet of Sign AB065.3

6. While reviewing Petitioner’s applications, the Department noticed that its outdoor advertising database identified Sign AB065 as having been permitted to Dale Mabry Highway. The Department updated the database to reflect that Sign AB065 is permitted to I-275, because Sign AB065 is visible to I-275, and I-275 has more stringent permitting requirements than Dale Mabry Highway. This change to the Department’s database did not require any action from Clear Channel and the actual location of Sign AB065 did not change.

7. While reviewing Petitioner’s applications, the Department also noted that Sign AB065 presents a spacing conflict with a double-sided digital sign owned by Clear Channel (Digital Sign). The Digital Sign is located on the north side of I-275, east of Sign AB065, and is also visible from I-275. The Digital Sign is within 1,500 feet of Sign AB065, but is more than 1,500 feet away from the Proposed Sign, and therefore does not create a spacing conflict for the Proposed Sign.

8. Clear Channel filed permit applications for the Digital Sign on May 17, 2016, before the applications for the Proposed Sign were submitted by Petitioner. During its field review of the Digital Sign applications, the Department noted a spacing conflict with an existing Clear Channel double- sided billboard structure bearing tag numbers BG841 and BZ148 (Sign BG841 and Sign BZ148). The Department required Clear Channel to remove Sign BG841 and Sign BZ148 as a condition of the Digital Sign permits. The Department failed, however, to notice that Sign AB065 also created a spacing conflict with the Digital Sign, and removal of Sign AB065 was not a condition of the Digital Sign permits.

   
   

   3 Other grounds for disapproval were cited but have since been resolved by the parties.

9. After recognizing its error in permitting the Digital Sign, the Department reclassified Sign AB065 and the Digital Sign as nonconforming signs and sent Clear Channel notices advising it of this change in status. A nonconforming sign is a sign that was lawfully erected but no longer conforms to applicable laws or regulations. Clear Channel did not challenge the reclassification of Sign AB065 and the Digital Sign as nonconforming signs, and that reclassification became final.

10. Petitioner alleged in its second amended petition that Sign AB065 is an unlawful sign and should not be considered when enforcing the spacing requirements applicable to interstate highways. At the final hearing, however, Petitioner’s counsel confirmed the withdrawal of its allegation that Sign AB065 is an unlawful sign:

    THE COURT: Okay. Do I have -- are you asking me, in this case, Mr. Smith, to declare the Clear Channel AB065 as an unlawful sign?

    
    

    MR. SMITH: I’ll make sure I understand the question. First of all, we do not seek to have anything done to Clear Channel or to their signs.

    
    

    THE COURT: Okay.

    
    

    MR. SMITH: We’re just saying the action taken by the Department were unlawful, and they should not use AB065 as a reason to turn down our application, amongst other things.

    
    

    THE COURT: Well, I’m not suggesting I have the authority to do this anyway, but, just to be clear, you’re not asking me to issue a recommended order that determines that the Clear Channel AB065 sign is an unlawful sign?

    
    

    MR. SMITH: Correct, sir.

    
    

11. Despite this representation from counsel, Petitioner asserts in its Proposed Recommended Order that Sign AB065 is an unlawful sign. Based

    upon counsel’s representation at the final hearing, Petitioner’s allegation that Sign AB065 is an unlawful sign is deemed withdrawn.

12. Regardless, Petitioner failed to prove that Sign AB065 is an unlawful sign. Sign AB065 was erected pursuant to a lawful permit and its location and height have remained unchanged since it was first permitted in 1980. The fact that Sign AB065 was reclassified by the Department as a nonconforming sign does not make it an illegal sign.

13. The Department admits that it permitted the Digital Sign in error; the Department simply failed to notice that the proposed location for the Digital Sign was within 1,500 feet of Sign AB065 before the Digital Sign permits were approved. If the Department had noticed this spacing conflict during its review of Clear Channel’s applications for the Digital Sign, it would have denied the permit, or required Clear Channel to remove Sign AB065 as a condition of the Digital Sign permits.

14. The Department has not taken any action to revoke Clear Channel’s permits for Sign AB065 or the Digital Sign, and both signs are currently permitted as nonconforming signs.

    
    

    CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. §§ 120.569 and 120.57(1), Fla. Stat.

16. The Department is authorized to regulate outdoor advertising signs located along interstate and federal-aid primary highways pursuant to chapter 479, Florida Statutes.

17. As the party seeking permits from the Department, Petitioner has the burden of proving its entitlement to the permits by a preponderance of the evidence. Fla. Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner failed to prove that the location of the Proposed Sign complies with the spacing requirements imposed by section 479.07(9)(a)1., and its permit applications must be denied for this reason.

18. Section 479.07(9)(a) provides:

    A permit may 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.

       
       

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

       
       

       The minimum spacing provided in this paragraph does not preclude the permitting of V-type, back-to- back, side-to-side, stacked, or double-faced signs at the permitted sign site. If a sign is visible to more than one highway subject to the jurisdiction of the department and within the controlled area of the highways, the sign must meet the permitting requirements of all highways and be permitted to the highway having the more stringent permitting requirements. (Emphasis added).

       
       

       Sign AB065 has been permitted since 1980, it is on the same side of I-275 as the Proposed Sign, and it is within 1,500 feet of the Proposed Sign. As such, the permits Petitioner seeks for the Proposed Sign “may not be granted.”

19. Petitioner argues that the location of Sign AB065 should be disregarded when applying the spacing requirement applicable to interstate highways, because Sign AB065 was permitted to Dale Mabry Highway, instead of I-275, when Petitioner’s permit applications were submitted to the Department. Although factually true, this distinction is immaterial because a sign must meet the permitting requirements applicable to all highways to which it is visible, whether permitted to a particular highway or not.

    § 479.07(9)(a), Fla. Stat. There is no dispute that the Proposed Sign and Sign AB065 are visible to I-275. As a result, the location of both signs must be

    considered when applying the 1,500 feet spacing requirement applicable to interstate highways.

20. Petitioner points out, correctly, that section 479.07(9)(a)1. should have prevented Clear Channel from obtaining permits for the Digital Sign located on the east side of Sign AB065, because the Digital Sign is also visible to I- 275 and is located within 1,500 feet of Sign AB065. Petitioner’s frustration is understandable, but the Department’s admitted mistake in permitting the Digital Sign—spacing conflict notwithstanding—does not excuse the proper application of the statute in this case. See Divosta and Company, Inc. v. Dep’t of Transp., Case No. 98-5401 at ¶ 41 (Fla. DOAH May 12, 1999; DOT July 28, 1999), aff’d per curiam, 756 So. 2d 1019 (Fla. 4th DCA 2000) (“[An agency] has an obligation to not repeat its previous mistakes and to carry out the Legislature’s will and intent, as expressed in the statute. To hold otherwise would, in effect, give the agency authority it should not have: the authority to vitiate an enactment of the Legislature by its actions.”); and Malibu Lodging Investments, LLC v. Dep’t of Transp., Case No. 09-1524 at ¶ 58 (Fla. DOAH Aug. 25, 2009; DOT Nov. 19, 2009), aff’d per curiam, 43 So. 3d 59 (Fla. 3d DCA 2010).

21. Petitioner cites Maverick Media Group v. Department of Transportation, 791 So. 2d 491 (Fla. 1st DCA 2001) for the proposition that the location of Sign AB065 must be disregarded when applying the spacing requirement, because Sign AB065 itself does not meet the spacing requirement. Petitioner’s reliance on Maverick Media is misplaced.

22. In Maverick Media, the applicant’s permit was denied because of a spacing conflict with a sign owned by a third party. The court held that the applicant had standing to challenge the legality of the third party’s sign because the location of that sign was cited by the Department as a basis to deny the applicant’s permit. Id. at 495.

23. Like the applicants in Maverick Media, Petitioner has standing to challenge the legality of Sign AB065 because its location was cited as the

    basis for denying the permits for the Proposed Sign. Petitioner declared at the final hearing, however, that it does not seek a determination that Sign AB065 is an illegal sign in this case. Moreover, the facts here are that Sign AB065’s location has not changed since it was first permitted in 1980, and there is no evidence from which the undersigned can determine that Sign AB065 has ever been an illegal sign. The fact that Sign AB065’s status was later changed to nonconforming is of no benefit to Petitioner in this case; a sign is not “illegal” just because it is nonconforming. See § 479.24(1), Fla.

    Stat. (“A sign loses its nonconforming status and becomes illegal at such time as it fails to be permitted or maintained in accordance with all applicable laws, rules, ordinances, or regulations other than the provision that makes it nonconforming.”).

24. Petitioner argues that the Department has an obligation under section

    479.08 to revoke the Digital Sign permits, or require Clear Channel to correct the spacing violation by removing Sign AB065. The Department is not obligated to do either under section 479.08. Section 479.08 provides in pertinent part:

    The department may deny or revoke a permit requested or granted under this chapter in any case in which it determines that the application for the permit contains false or misleading information of material consequence. The department may revoke a permit granted under this chapter in any case in which the permittee has violated this chapter, unless such permittee, within 30 days after the receipt of notice by the department, complies with this chapter. (Emphasis added).

    
    

    This statute authorizes the Department to take action to revoke a permit for the specified reasons, but it does not require it. Even if the Department revoked the permits for the Digital Sign, such action would not benefit Petitioner here, because the Digital Sign does not create a spacing conflict for the Proposed Sign.

25. Petitioner alleged in its second amended petition that equitable estoppel prevents the Department from denying its permits. Petitioner appears to have abandoned this argument as equitable estoppel was not raised in Petitioner’s Proposed Recommended Order. Regardless, Petitioner has not proven the elements required to apply estoppel against the Department, which are: (1) a representation as to a material fact that is contrary to a later asserted position; (2) reliance on that representation; and

    (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Associated Indus. Ins. Co. v. Dep’t of Labor & Empl. Sec. (Dep’t of Fin. Servs.), 923 So. 2d 1252, 1255 (Fla. 1st DCA 2006). The additional “exceptional” circumstances that must be established to apply estoppel against a state agency consist of: (1) conduct by the government that goes beyond mere negligence, and (2) a showing that estoppel will not unduly harm the public interest. Id. Petitioner has failed to satisfy all of these elements. Accordingly, there is no justification to apply equitable estoppel against the Department in this case.

26. Petitioner also argues that the “policy” the Department applied to reclassify Sign AB065 and the Digital Sign as nonconforming signs is an unadopted rule, and therefore cannot be applied as a basis to deny Petitioner’s permits. Florida law prohibits agency action based on an unadopted rule. Section 120.57(1)(e)1., Florida Statutes, provides:

    An agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority. This subparagraph does not preclude application of valid adopted rules and applicable provisions of law to the facts.

    
    

    As a threshold matter, the Department argues that Petitioner’s unadopted rule challenge must be brought in a separate petition filed directly with the

    Division of Administrative Hearings pursuant to section 120.56(4). The Department overlooks section 120.57(1)(e)2., which provides:

    In a matter initiated as a result of agency action proposing to determine the substantial interests of a party, the party’s timely petition for hearing may challenge the proposed agency action based on a rule that is an invalid exercise of delegated legislative authority or based on an alleged unadopted rule.

    
    

    Petitioner can raise an unadopted rule challenge within this substantial interests proceeding, but it must demonstrate that the alleged unadopted rule is a basis for the proposed agency action. The proposed agency action here is the denial of Petitioner’s permits. The sole basis for the denial of Petitioner’s permits is the 1,500 feet spacing requirement applicable to interstate highways found in section 479.07(9)(a)1. The denial of Petitioner’s permits is not based upon an unadopted rule.

27. All of the arguments Petitioner raised have been carefully considered, but the fact remains that Petitioner’s applications do not comply with the spacing requirement applicable to interstate highways found in section 479.07(9)(a)1., and its applications must be denied for this reason.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s sign permit applications.

DONE AND ENTERED this 15th day of June, 2020, in Tallahassee, Leon County, Florida.

S

BRIAN A. NEWMAN

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 15th day of June, 2020.

COPIES FURNISHED:

Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399 (eServed)

Elizabeth Somerstein Adler, Esquire Greenspoon Marder LLP

Suite 1800

200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)

Glenn N. Smith, Esquire Greenspoon Marder, P.A. Suite 1800

200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)

David Tropin, Esquire Department of Transportation Mail Station 58

605 Suwannee Street,

Tallahassee, Florida 32399 (eServed)

Austin M. Hensel, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 (eServed)

Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450 (eServed)

Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450 (eServed)

Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 57

Tallahassee, Florida 32399-0450 (eServed)

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: 19-005890

Orders for Case No: 19-005890