STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELLER MEDIA COMPANY, A DELAWARE ) CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 00-1521T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on February 8, 2001, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nicolas J. Gutierrez, Jr., Esquire

Rafferty, Gutierrez, Sanchez-Aballi, Stolzenberg & Gelles, P.A.

1101 Brickell Avenue, Suite 1400

Miami, Florida 33131-3117

For Respondent: Jodi B. Jennings, Esquire

Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

Whether the structure described in the Department of Transportation's Notice of Violation No. 10B DB 2000 007 (Notice) is in violation of Section 479.07(1), Florida Statutes, and therefore subject to removal pursuant to Section 479.105, Florida Statutes, as alleged in the Notice.

PRELIMINARY STATEMENT

On February 22, 2000, the Department of Transportation (Department) issued a Notice of Violation (No. 10B DB 2000

007) alleging that a "sign" located "on the side of the New World Tower Building" at 100 North Biscayne Boulevard in Miami, Florida, containing "Perry Ellis for Men" advertising copy was in violation of Section 479.07(1), Florida Statutes, and therefore had to be removed within 30 days. On March 22, 2000, Petitioner filed a Petition for Formal Administrative Hearing (Petition) concerning the matter. In its Petition, Petitioner identified itself as the lessee of the "sign" referenced in the Notice pursuant to a "long-term lease" it had entered into with the New World Tower owner "for the "advertising-related use of the [f]ace" of the "sign." According to the Petition, "the [s]ign constitute[d] 'art,' rather than a commercial message that would be considered a 'sign' requiring a permit, under Section 479.01(17) and 479.07(1) of the Florida Statutes." On April 6, 2000, the

Petition was referred to the Division of Administrative Hearings (Division) with the request that an "administrative hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes," be held on the following issue: "Whether the sign upon which Notice of Violation No. 10B DB 2000 007 was issued is properly permitted pursuant to Chapter 479, Florida Statutes."

Such a hearing was originally scheduled to commence on July 31, 2000, but was continued and rescheduled on three separate occasions. The hearing was ultimately held, as noted above, on February 8, 2001.

Prior to the hearing, in accordance with the Order of Prehearing Instructions issued May 3, 2000, the parties filed a Joint Prehearing Statement, in which they stated their respective positions as follows:

DEPARTMENT: Section 479.07(1), Florida Statutes, provides that 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 any portion of the federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee. The subject sign does not have a state sign permit and is not exempt from the permitting requirements of Chapter 479, Florida Statutes. As such the sign was erected in violation of Section 479.07(1), Florida Statutes, is illegal, and must be removed.

ELLER: Petitioner's position is that the subject structure is not in violation of Section 479.07(1), Florida Statutes, since it is not a "sign" at all under Section 479.01(17), Florida Statutes, for commercial or informative purposes, but rather an artistic mural under Miami-Dade County's "Art in Public Places" ordinance, as per the City of Miami's correspondingly issued and renewed Class II permit.

Furthermore, Florida courts and quasi-

judicial administrative agencies have consistently afforded substantial deference to local regulatory schemes under Section 479.15(1) and 479.155, Florida Statutes, and the case law thereunder.

At the hearing held on February 8, 2001, the Department presented the testimony of two witnesses, C. Jean Cann, the District Roadside Outdoor Advertising Administrator for the Department's District 6, and Juanice Hagan, the Department's Deputy Manager for Outdoor Advertising. In addition to the testimony of Ms. Cann and Ms. Hagan, the Department offered nine exhibits (Respondent's Exhibits 1 through 9) into evidence. All nine exhibits were admitted. Petitioner made no evidentiary presentation. 1/

At the close of the evidentiary portion of the hearing the undersigned established a deadline (20 days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.

A Transcript of final hearing (consisting of one volume) was filed with the Division on February 23, 2001. On March 14, 2001, the Department filed a Proposed Recommended Order,

which has been carefully considered by the undersigned. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

1. Petitioner is an outdoor advertising company that was formerly known as AK Media.

2. On December 10, 1998, Petitioner (while still known as AK Media) entered into an agreement with NWT Partners, Ltd., the owner of the New World Tower (Building), a "thirty

1. story four (4) sided building" located at 100 North Biscayne Boulevard in Miami, Florida, to lease certain portions of the Building. The lease agreement contained the following provisions, among others:

   1. Effective Date. This Lease shall become effective on the later of (x) the date that Tenant provides written notice to Landlord that Tenant has obtained all permits, license and governmental approvals necessary or required to enable Tenant to construct, maintain and operate the Wall Faces and Wall Structures, as hereinafter defined or (y) January 1, 1999 (the "Effective Date"). Tenant shall have ninety (90) days from the date of this Lease to obtain all such permits, licenses and approvals or the Landlord may cancel this Lease.

      
      

   2. Purpose. The purpose of this lease is for Tenant to construct, maintain and operate painted, printed, illuminated

      and/or electrical signs on the north and south wall faces of the Building (the "Wall Faces"), and all other uses not inconsistent therewith, including all necessary supporting structures, devices, illumination facilities and connections, service ladders and equipment, and other appurtenances (the "Wall Fixtures"). All construction to the Building, and advertising thereon, including construction drawing and artwork to be furnished by the Tenant shall be subject to Landlord's written approval, which approval shall not be unreasonably withheld.

      
      

   3. Tenant's Right to Enter and Use. For the duration of this Lease, Tenant shall have the non-exclusive right to enter onto the Property and into the Building and use the Wall Faces for the purposes described in this Lease and any other purposes allowed or required by this Lease and Tenant has the exclusive right to use the Wall Faces Property for advertising. In exercising Tenant's rights hereunder, Tenant may hang or attach the Wall Fixtures to the roof and exterior structure of the Building. Tenant shall maintain the Wall Fixtures at Tenant's cost and expense. Tenant shall pay all utility charges in connection with the operation and maintenance of the Wall Fixtures. Tenant shall be responsible for damage to the Building which is caused by Tenant's operation and maintenance and removal of the Wall Fixtures and shall repair any such damage and restore the Building to the condition it was in immediately prior to such damages at the expiration or termination of this Lease.

   4. Term. The term of this Lease is for five (5) years from the "Rent Commencement Date," as hereinafter defined, to the last day of the month during which the fifth anniversary of the Rent Commencement Date occurs (the "Term").

   5. Rent. Tenant shall pay Landlord rent annually, in accordance with the schedule (the "Rent Schedule") set forth on Exhibit "B" hereto, inclusive of all taxes . . . .

      
      

   6. Contracts. Anything herein to the contrary notwithstanding, Tenant will use its best efforts to obtain contracts (the "Contracts") for advertising on the Building which exceed the amount of the Guaranteed Rent, as set forth on the Rent Schedule. . . .

9. Ownership/Removal. At all times, Tenant is and shall remain the owner of the Wall

Fixtures and all signs and permits of any

kind in relation thereto, and has the right to remove the Wall Fixtures at any

time. . . .

Exhibit "B" Rent Schedule

Tenant shall pay annual rent to Landlord in an amount equal to the greater of (x)

Fifty-five percent (55%) of the gross revenues attributable to advertisements displayed on the North Wall and the South Wall of the Building less any agency fee or commissions not greater than 16 2/3% to bona fide third parties (the "Net Revenues") associated with such advertisements (the "Percentage Rent") or

(y) the minimum guaranteed annual rent (the "Guaranteed Rent") hereinafter set forth as follows: . . .

The Landlord may terminate the Lease Agreement upon thirty (30) days prior written notice to Tenant if either Wall is vacant for more than one hundred twenty

(120) consecutive days during the Term of the Lease and the Tenant has failed to obtain a contract, before the expiration of such notice period, for advertising on the

North Wall or South Wall, as the case may be, pursuant to which the projected Percentage Rent under such contract would exceed the Guaranteed Rent. . . .

1. Subsequently, Petitioner (while still operating under the name AK Media) entered into a "bulletin contract" with New York Outdoor, an advertising agency acting on behalf of Supreme International, in which Petitioner agreed, for a fee, to produce and maintain an "outdoor advertising display" for Supreme International on the north wall of the Building.

2. Supreme International sells "Perry Ellis" and "Perry Ellis for Men" brand fashion apparel.

3. In accordance with the "bulletin contract," Petitioner produced an "outdoor advertising display" for Supreme International on the north wall of the Building.

4. The "outdoor advertising display" that Petitioner produced was a large mural more than 100 feet high and more than 60 feet wide. Such a product is referred to in the outdoor advertising industry as a "wallscape."

5. The "wallscape" that Petitioner produced for Supreme International consisted of artwork (a picture of a young woman) and print (the words "Perry Ellis for Men") on a "canvass-type" material that was mounted on a "picture frame" support structure attached to the north wall of the Building.

6. It was located within 660 feet of the nearest edge of the right-of-way of a roadway, US Highway 1 (also known, in

   that location, as North Biscayne Boulevard), which is a part of the federal-aid primary highway system.

7. The artwork and print could be seen without visual aid by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building.

8. At no time has Petitioner applied for, or obtained, a permit from the Department authorizing it to erect and maintain a "sign," as that term is used in Chapter 479, Florida Statutes, on the north wall of the Building.

9. Petitioner, however, did seek and obtain a Class II Special Permit from the City of Miami.

10. The permit was granted by the Miami City Commission, through the passage of Miami City Commission Resolution 99- 828, at its October 26, 1999, meeting.

11. The printed agenda distributed in advance of the meeting stated the following concerning the permit for which Petitioner had applied:

    Consideration of approving Class II Special Permit No. 99-0142 for the property located at approximately 100 North Biscayne Boulevard for a sign of a graphic or artistic value.

    
    

    This will allow a mural containing a commercial message.

    
    

12. The resolution passed by the Miami City Commission at the meeting read as follows:

    A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE RECOMMENDATION OF THE DIRECTOR OF THE PLANNING DEPARTMENT FOR ISSUANCE OF CLASS II SPECIAL PERMIT APPLICATION NO. 99-0142, SUBJECT TO THE CONDITION THAT THERE SHALL BE NO WRITING PERMITTED WITH THE MURAL AND OTHER CONDITIONS AS RECOMMENDED BY THE PLANNING DEPARTMENT FOR THE PROPERTY LOCATED AT APPROXIMATELY 100 NORTH BISCAYNE BOULEVARD, MIAMI, FLORIDA, PURSUANT TO SECTION 401 OF ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED.

    
    

    WHEREAS, the Director for the Department of Planning is recommending approval of Class II Special Permit Application No. 99-0142, with conditions, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida; and

    
    

    WHEREAS, Zoning Ordinance No. 11000, as amended, the Zoning Ordinance of the City of Miami, Florida, requires City Commission approval of the Class II Special Permit as hereinafter set forth; and

    
    

    WHEREAS, the City Commission after careful consideration of this matter, finds the application for a Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to approve the recommendation of the Director of the Department of Planning to uphold the issuance of the Class II Special Permit, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department;

    
    

    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 hereby adopted by reference thereto and incorporated herein as if fully set forth in this section.

    
    

    Section 2. The recommendation of the Director of the Department of Planning to issue Class II Special Permit Application No. 99-0142, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida, is hereby approved, and the City Commission finds that the issuance of Class II Special Permit Application No. 99-0142, with conditions does meet the applicable requirements of Zoning Ordinance No. 11000, as amended.

    
    

    Section 3. The Resolution shall become effective immediately upon its adoption and signature of the Mayor.

    
    

13. Inasmuch as the words "Perry Ellis for Men" were on the "wallscape" that Petitioner produced for Supreme International, this "wallscape" was not in compliance with the condition imposed by the Miami City Commission, in issuing the Class II Special Permit to Petitioner, that there "be no writing permitted with the mural."

14. On February 22, 2000, Bernard Davis, who, at the time, was the Department's District 6 Roadside Outdoor Advertising Administrator, issued a Notice of Violation (Notice No. 10B DB 2000 007) alleging that the "wallscape" on the north wall of the Building (described above) was "in

    violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes" and directing that the sign be removed within 30 days.

15. Petitioner thereafter requested an administrative hearing on the matter.

16. Prior to the hearing, the artwork and print on the "wallscape" on the north wall of the Building were changed.

17. As of the date of the final hearing in this case, the "wallscape" on the north wall of the Building contained a picture of a man and part of a woman and the words "Perry Ellis," underneath which was written "www.perryellis.com," Supreme International's website address.

18. The Monday and Tuesday before the final hearing (February 5 and 6, 2001), Mr. Davis' successor, C. Jean Cann, went inside the Building to determine whether Supreme International had an "on-premises presence."

19. On Monday, February 5, 2001, Ms. Cann entered the Building at approximately 1:15 p.m. After obtaining information from the Building's Electronic Directory that "Perry Ellis" occupied room 2128, she took the elevator to the 21st floor. After getting off the elevator, she walked down a hallway, where she saw a paper sign on a door which read "Perry Ellis/Supreme International, Incorporated, 2128." When

    she knocked on the door, no one answered. She waited 10 to 15 seconds and then knocked again, with the same result. She then, unsuccessfully, attempted to open the door. At around 1:45 p.m., she left the Building.

20. Ms. Cann returned to the Building the following day at approximately 11:40 a.m., at which time she spoke to a security guard, who informed her that "Perry Ellis" "was in 2126." She then again went up to the 21st floor, and, on the same door that she had seen the "Perry Ellis/Supreme International, Incorporated, 2128" sign the day before, she saw a paper sign that read "Perry Ellis/Supreme International, Incorporated, 2126." Her knocks on the door, like those of the previous day, went unanswered, and she was again unable to open the door. At around 12:00 noon, she exited the Building.

21. At no time during either of her two visits was Ms.

    
    

    Cann able to ascertain what, if any, business activity Supreme International was engaging in inside the Building.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Department of Transportation is statutorily empowered to administer and enforce the provisions of Chapter 479, Florida Statutes, dealing with outdoor advertising. Section 479.02, Florida Statutes.

23. Among these provisions are those found in Sections 479.07(1), 479.105(1), 479.15(1), Section 479.155, and 479.16(1), Florida Statutes, which provide as follows:

    Section 479.07(1): 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 incorporated area 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. For purposes of this section, "on any portion of the State Highway System, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

    
    

    Section 479.105(1): (1) Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

    
    

    1. Upon a determination by the department that a sign is in violation of s. 479.07(1), the department shall prominently post on the sign face a notice stating that the sign is illegal and must be removed within 30 days after the date on which the notice was posted. However, if the sign bears the name of the licensee or the name and address of the nonlicensed sign owner, the department shall, concurrently with and in addition to posting the notice on the

       sign, provide a written notice to the owner, stating that the sign is illegal and must be permanently removed within the 30- day period specified on the posted notice. The written notice shall further state that the sign owner has a right to request a hearing, which request must be filed with the department within 30 days after the date of the written notice. However, the filing of a request for a hearing will not stay the removal of the sign.

       
       

    2. If, pursuant to the notice provided, the sign is not removed by the sign owner within the prescribed period, the department shall immediately remove the sign without further notice; and, for that purpose, the employees, agents, or independent contractors of the department may enter upon private property without incurring any liability for so entering.

       
       

    3. For purposes of this subsection, a notice to the sign owner, when required, constitutes sufficient notice; and notice is not required to be provided to the lessee, advertiser, or the owner of the real property on which the sign is located.

       
       

    4. If, after a hearing, it is determined that a sign has been wrongfully or erroneously removed pursuant to this subsection, the department, at the sign owner's discretion, shall either pay just compensation to the owner of the sign or reerect the sign in kind at the expense of the department.

       
       

    5. However, if the sign owner demonstrates to the department that:

       
       

       1. The sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for a period of 7 years or more;

          
          

       2. At any time during the period in which the sign has been erected, the sign would

          have met the criteria established in this chapter for issuance of a permit;

          
          

       3. The department has not initiated a notice of violation or taken other action to remove the sign during the initial 7- year period described in subparagraph 1.; and

          
          

       4. The department determines that the sign is not located on state right-of-way and is not a safety hazard, the sign may be considered a conforming or nonconforming sign and may be issued a permit by the department upon application in accordance with this chapter and payment of a penalty fee of $300 and all pertinent fees required by this chapter, including annual permit renewal fees payable since the date of the erection of the sign.

       
       

       Section 479.15(1): (1) 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.

       
       

       Section 479.155: 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.

       
       

       Section 479.16(1): The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter but are required to comply with the provisions of s. 479.11(4)-(8):

       
       

       1. Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or

          accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which comply with the lighting restrictions under department rule adopted pursuant to s.

          479.11(5), or signs owned by a municipality or a county located on the premises of such municipality or such county which display information regarding government services, activities, events, or entertainment. For purposes of this section, the following types of messages shall not be considered information regarding government services, activities, events, or entertainment:

          
          

          1. Messages which specifically reference any commercial enterprise.

             
             

          2. Messages which reference a commercial sponsor of any event.

             
             

          3. Personal messages.

             
             

          4. Political campaign messages.

       
       

       If a sign located on the premises of an establishment consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection.

       
       

24. Section 479.01, Florida Statutes, contains definitions of certain terms used in Chapter 479, Florida Statutes, including the following:

    (4) "Controlled area" shall mean 660 feet or less from the nearest edge of the right- of-way of any portion of the State Highway System, interstate, or federal-aid primary system and beyond 660 feet of the nearest edge of the right-of-way of any portion of the State Highway System, interstate, or

    federal-aid primary system outside an urban area. . . .

    
    

    1. "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign.

       
       

    2. "Federal-aid primary highway system" means the existing, unbuilt, or unopened system of highways or portions thereof, which shall include the National Highway System, designated as the federal-aid primary highway system by the department.

       
       

    3. "Highway" means any road, street, or other way open or intended to be opened to the public for travel by motor

    vehicles. . . .

    
    

    1. "Main-traveled way" means the traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separate roadways for traffic in opposite directions is a main-traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas.

       
       

    2. "Maintain" means to allow to exist. . . .

    
    

    (15) "Premises" means all the land areas under ownership or lease arrangement to the sign owner which are contiguous to the business conducted on the land except for instances where such land is a narrow strip contiguous to the advertised activity or is connected by such narrow strip, the only viable use of such land is to erect or maintain an advertising sign. . . .

    (17) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display or automatic changeable facing, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department. . .

    .

    
    

    1. "Sign face" means the part of the sign, including trim and background, which contains the message or informative contents.

       
       

    2. "Sign facing" includes all sign faces and automatic changeable faces displayed at the same location and facing the same direction.

       
       

    3. "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.

       
       

    4. "State Highway System" means the existing, unbuilt, or unopened system of highways or portions thereof designated as the State Highway System by the department. . . .

    
    

    (26) "Visible sign" means that the advertising message or informative contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity.

    
    

25. In the instant case, the Department has alleged (and, resultantly, it was its burden to prove) that the "wallscape" on the north wall of the Building is a "sign" (as that term is used in Chapter 479, Florida Statutes) that is required to be (by Section 479.07(1), Florida Statutes), but is not, permitted by the Department, and is therefore subject to removal (pursuant to Section 479.105(1), Florida Statutes). See Florida Department of Transportation v. J.W.C. Company,

    396 So. 2d 778, 788 (Fla. 1st DCA 1981)("In accordance with the general rule, applicable in court proceedings, 'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.'").

26. The Department has met its burden of proof.

    
    

27. It has clearly and convincingly established that the "wallscape" is a "combination of structure and [advertising] message" located within 660 feet of the nearest edge of US Highway 1 (which is a part of the federal-aid primary highway system), whose advertising message can be seen (without visual aid) by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building, and it therefore constitutes a "sign" (as that term is defined in Section 479.01(17), Florida Statutes) for which a permit from the Department is required pursuant to Section 479.07(1), Florida

    Statutes, unless one of the permitting exemptions enumerated in Section 479.16, Florida Statutes, applies.

28. Petitioner has argued that "the subject structure is not in violation of Section 479.07(1), Florida Statutes, since it is not a 'sign' at all under Section 479.01(17), Florida Statutes," but rather an "artistic mural." The argument is without merit. Whatever artistic value it may have, the "wallscape" is nonetheless a "sign," within the meaning of Section 479.01(17) inasmuch as it is a structure that contains an advertising message that is visible from US Highway 1. To read Section 479.01(17) as excluding from the definition of "sign" advertising structures that have some artistic merit is to add words to the statute not placed there by the Legislature. This neither the undersigned nor the Department may do. See Chaffee v. Miami Transfer Co., Inc., 288 So. 2d 209, 215 (Fla. 1974).

29. Petitioner has also contended that, in light of the provisions of Sections 479.15(1) and 479.155, Florida Statutes, it is not required to obtain a permit for the "wallscape" from the Department because the City of Miami has already granted a Class II Special Permit allowing a mural at the location. The "wallscape," however, does not comply with the condition imposed by the City of Miami in the Class II Special Permit that it issued Petitioner "that there shall be

    no writing permitted with the [permitted] mural" and, therefore, the "wallscape" cannot be said to have been permitted by the City of Miami. Moreover, even if the City of Miami had not imposed a "no writing" condition in its permit, its issuance of the permit would still not obviate the need for Petitioner to obtain a Department permit for the "wallscape." There is nothing in Chapter 479, Florida Statutes, including the statutory provisions cited by Respondent, that suggests that a local government's approval of a "sign" (as meeting the requirements of a local ordinance) relieves the "sign" owner of the obligation to comply with the permitting requirements of Chapter 479, Florida Statutes. See City of Lake Wales v. Lamar Advertising Association of Lakeland, Florida, 414 So. 2d 1030 (Fla. 1982)("We approve the district court's holding that the state highway beautification program does not preempt municipal regulations which establish more stringent requirements than those set out in chapter 479, Florida Statutes"); Florida Department of Transportation v.

    E.T. Legg & Co., 472 So. 2d 1336 (Fla. 4th DCA 1985)(held that

    
    

    "fact that the [outdoor advertising] signs were properly licensed by the City of Pembroke Park" did not divest Department of its regulatory authority over such signs under Chapter 479); Lamar-Orlando Outdoor Advertising v. City of Ormond Beach, 415 So 2d 1312 (Fla. 5th DCA 1982)(Chapter 479

    "contemplates that no zoning ordinance may stand that is less stringent than Chapter 479," but it does not prohibit local governments from "enact[ing] stricter rules than those imposed by the state law . . . ."); La Pointe Outdoor Advertising v.

    Florida Dept. of Transportation, 382 So. 2d 1347 (Fla. 4th DCA 1980), approved, 398 So. 2d 1370 (Fla. 1981)(held that outdoor advertising sign was never "lawfully in existence" under Chapter 479, notwithstanding that sign owner had received county building permit for sign).

30. At the final hearing, Petitioner, for the first time, advanced the additional argument that, even if the "wallscape," was deemed to be a "sign," as that term is used in Chapter 479, Florida Statutes, it would qualify as an "on premises sign" exempt from the permitting requirements of Chapter 479 by operation of Section 479.16(1), Florida Statutes. It was Petitioner's burden to prove its entitlement to the "on premises" exemption set forth in Section 479.16(1). See Harper v. England, 168 So. 403 (Fla. 1936)(burden is on party seeking exemption from licensing requirement to establish entitlement to such exemption); and Withers v. Metropolitan Dade County, 290 So. 2d 573 (Fla. 3d DCA 1974)("A taxpayer seeking the special exception exemption accorded land zoned agricultural has the burden of showing his entitlement thereto."). Petitioner failed to meet this burden. The

    record is devoid of any evidence that, in the office space behind the door on which Ms. Cann observed the paper "Perry Ellis/Supreme International, Incorporated" signs, or, for that matter, anywhere else in the Building, there is any meaningful business activity relating to the brand name fashion apparel advertised on the "wallscape."

31. Petitioner further contended at the final hearing, also for the first time, that the "wallscape" cited in Notice of Violation No. 10B DB 2000 00721 "no longer exists" and that therefore the Notice should be dismissed on the ground of mootness and, if the Department desires to have the "wallscape" that is now on the north wall of the Building removed, it must issue a new Notice of Violation. Inasmuch as Petitioner has merely changed the artwork and print on the "wallscape" and therefore has not erected a new "sign," Petitioner's argument that the Department may not proceed pursuant to Notice of Violation No. 10B DB 2000 00721, but rather must start its prosecution anew, must be rejected. See Section 479.01(6), Florida Statutes (activities performed "incident to the change of advertising message . . . of a sign" do not constitute erection of a new "sign"); see also Royal Food Systems, Inc. v. Missouri Highway and Transportation Commission, 876 S.W.2d 38 (Mo. App. 1994)(held

    that "changing the sign's display from 'Texaco' to 'Wendy's'" did not "constitute[] the erection of a new sign").

32. The Department having established that the "wallscape" on the north wall of the Building is an unpermitted "sign," as defined in Section 479.01(17), Florida Statutes, which is located within the "controlled area" of a roadway that is a part of the federal-aid primary highway system and is visible from the roadway, and Petitioner having failed to establish that any of the statutory exceptions to the permitting requirements of Chapter 479, Florida Statutes, apply to this "sign," it must be concluded that the "wallscape" was erected and is being maintained in violation of Section 479.07(1), Florida Statutes, and it therefore is subject to removal pursuant to Section 479.105(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order finding that the "wallscape" on the north side of the Building is a "sign" that was erected and is being maintained without the Department-issued permit required by Section 479.07(1), Florida Statutes, and that it therefore is a public and

private nuisance that must be removed pursuant to Section 479.105(1), Florida Statutes.

DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida.

___________________________________ 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 23rd day of March, 2001.

ENDNOTE

1/ Although Petitioner's attorney made various representations of a factual nature during the course of the hearing, these representations do not constitute evidence upon which findings of fact may be based. See State v. Gosier, 737 So. 2d 1121, 1122 n.1 (Fla. 4th DCA 1999)("Although defense counsel made a number of statements concerning the defendant, the defendant's life, the crime, and supposed remorse, those statements do not constitute evidence."); State v. Silver, 723 So. 2d 381, 383 (Fla. 4th DCA 1998)("It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record.

If the advocate wishes to establish a fact, he must provide

sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees."); and Sabina v. Dahlia Corporation, 650 So. 2d 96, 99 (Fla. 2d DCA 1995)("[T]his statement by Sabina's attorney does not constitute competent evidence before the trial court in this matter because it was an unsworn statement of a relevant fact in issue. In the absence of a stipulation . . . 'a trial

court cannot make a factual determination based on an attorney's unsworn statements' and 'is precluded from considering as fact unproven statements documented only by an attorney.'").

COPIES FURNISHED:

Nicolas J. Gutierrez, Jr., Esquire Rafferty, Gutierrez, Sanchez-Aballi,

Stolzenberg & Gelles, P.A.

1101 Brickell Avenue, Suite 1400

Miami, Florida 33131-3117

Jodi B. Jennings, Esquire Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

James C. Myers, Clerk of Agency Proceedings Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-001521

Orders for Case No: 00-001521