STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIG TIMES PRODUCTIONS, )

)

Petitioner, )

)

vs. ) Case No. 06-3032

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on December 21, 2006, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jennifer Ator, Esquire

Daniel L. Weiss, Esquire Tannebaum Weiss, LLP

Museum Tower, Penthouse 2850

150 West Flagler Street Miami, Florida 33130

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

STATEMENT OF THE ISSUE

Whether Respondent properly issued the subject amended notice of violation pertaining to Petitioner's outdoor advertising displays located on Petitioner's building at

1334 North Miami Avenue, Miami, Florida (Petitioner's building).

PRELIMINARY STATEMENT

Petitioner owns an empty, multi-story building located in a commercially zoned area of Miami that will be described in the Findings of Fact portion of this Recommended Order. On the exterior walls facing south and west are advertising displays that will also be described below. These advertising displays were erected without permits from Respondent. On February 28, 2006, Respondent issued to "Big Times Promotions" notice of violation no. 22806#3m, which alleged that the advertising displays were illegally erected signs since they were erected without requisite permit in violation of Section 479.07(1), Florida Statutes (2005).1 On May 31, 2006, Respondent issued to "Big Time Productions" amended notice of violation no. 22806#3m, which directed the same allegations to Petitioner's correct name. Petitioner timely challenged the amended notice of violation, the matter was referred to DOAH, and this proceeding followed.

DOAH's electronic docket for DOAH Case No. 06-3032 correctly reflects the pleadings that were filed in this proceeding, including the motions and the subsequent orders.

The parties filed a Joint Pre-Hearing Stipulation that contained certain factual stipulations. With one exception that will be discussed below, the parties' factual stipulations have been incorporated in this Recommended Order.

In the Joint Pre-Hearing Stipulation, Petitioner stated its position, in pertinent part, as follows:

Petitioner does not believe it needs a permit because:

1. the wall mural is not a sign within the meaning of section 479.01, Florida Statutes;

2. DOT does not have jurisdiction over the wall mural in question;

3. the wall mural in question is beyond the ambit of chapter 479, Florida Statutes;

4. the wall mural is expressly exempt from Chapter 479 regulation;

5. the wall mural is not located on a "federal-aid primary highway system" as defined by statute;

6. the DOT's assertion of control over the wall mural is unconstitutional as applied;

7. and/or DOT has selectively enforced its regulations, which violates the equal protection clauses of the State of Florida and United States Constitutions.

In its Proposed Recommended Order,2 Petitioner phrased the issue as being "Whether FDOT properly issued amended notice of violation no. 22806#3m if Fla. Stat. 479.01 et al. (2005) is unconstitutional as applied to Petitioner."

Paragraph 50 of Petitioner's proposed order states in part, the following:

50. . . . matters of constitutionality of the application of statutes should be advanced to the district court for final determination because the Division of Administrative Hearings does not have the authority to determine the constitutionality of a statute.

Petitioner's proposed order does not forward any arguments other than those pertaining to the constitutionality of the statute as applied.

At the formal hearing, Petitioner presented the testimony of Betty Rosado (a photographer) and Lynn Holschuh (Respondent's State Outdoor Advertising Administrator). Petitioner offered two Composite Exhibits, both of which were admitted into evidence. Respondent presented the testimony of Mark Johnson (Respondent's Outdoor Advertising Inspector for a region that includes Miami). Respondent offered nine sequentially-numbered Exhibits, each of which was admitted into evidence.

A one-volume Transcript of the hearing was filed January 16, 2007. Both parties filed Proposed Recommended

OrderS, which have been duly-considered by the undersigned in the preparation of this Recommended Order. In addition, Petitioner filed a pleading purporting to be exceptions to certain portions of Respondent's Proposed Recommended Order. Since the applicable rules do not contemplate exceptions to

recommended orders, Petitioner's purported exceptions have not been considered by the undersigned.

FINDINGS OF FACT

1. Petitioner's building is an empty shell located on North Miami Avenue in a commercially zoned area that is approximately 360 feet north of Interstate 395 (I-395) near the downtown area of Miami, Florida. The building is seven stories high.

2. On February 23, 2006, the south wall of Petitioner's building had an advertisement for Budweiser beer. The wall mural was approximately 45 feet high and 88 feet wide. Petitioner accepts revenue in exchange for the display of advertising on the exterior of the south wall of its building.3

3. On February 23, 2006, the west wall of Petitioner's building had an advertisement for Barcardi liquor. The wall mural was approximately 40 feet high and 48 feet wide. Petitioner accepts revenue in exchange for the display of advertising on the exterior of the west wall of its building.

4. Both advertisements can be seen without visual aid by motorists of normal visual acuity traveling on I-395.

5. I-395 is part of the federal interstate highway system.

   
   

   Each wall mural is within 660 feet of the edge of the right-of- way of I-395.

6. In 1972, Respondent entered into an agreement with the Federal Highway Administrator to control the erection and maintenance of signs located within 660 feet of the edge of the right-of-way of all portions of the Interstate and Federal Aid Primary Highway Systems in which outdoor advertising signs may be visible from the main-traveled way. Respondent's Exhibit 9 is a copy of that agreement. In accordance with the agreement, off-premises advertising signs could only be permitted in zoned or unzoned commercial or industrial areas, could not exceed 1200 square feet, and must meet spacing and lighting requirements consistent with the Federal Highway Beautification Act. Failure to comply with the terms of the agreement could result in the State of Florida losing ten percent of its federal highway funding.

7. Chapter 479, Florida Statutes, regulates outdoor advertising signs in Florida. Section 479.01(17), Florida Statutes, provides, in relevant part, as follows:

   (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

   ... 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. . . .

8. Each of the subject advertising displays is a "sign" as that term is used in Chapter 479, Florida Statutes.

9. Section 479.01(4), Florida Statutes, provides, in relevant part, 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 . . . interstate, or federal-aid primary system

   . . .

   
   

10. Each of the wall murals is within the controlled area of I-395.

11. After providing for exceptions that are inapplicable to this proceeding,4 Section 479.07(1), Florida Statutes, provides, in relevant part, as follows:

    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 . . . 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.

       
       

12. Petitioner has not applied to Respondent for, and Respondent has never granted, any permit relating to the two

    wall murals.5 Both signs were erected and have been maintained in violation of Section 479.07(1), Florida Statutes.

13. Pursuant to the provisions of Section 479.105, Florida Statutes, Respondent has the authority to require Petitioner to remove the signs within thirty days of its order to do so.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

15. Section 479.02, Florida Statutes, provides Respondent the authority and the responsibility to administer and enforce the provisions of Chapter 479, Florida Statutes.

16. As reflected by the Findings of Fact, the two advertising displays are signs that were erected without required permits from Respondent. Compare Eller Media Company v. Department of Transportation, DOAH Case No. 00-1521 (DOT Final Order June 1, 2001). Consequently, Respondent has the authority to require the removal of the signs pursuant to the provisions of Section 479.105(1), Florida Statutes, which provides, in part, as follows:

    1. Any sign which . . . 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. . . .

       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) The cost of removing a sign, whether by the department or an independent contractor, shall be assessed against the owner of the sign by the department.

          
          

17. Petitioner correctly argues that it is required to exhaust its administrative remedies. See Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1982). Petitioner also correctly recognizes that the Administrative Procedures Act does not confer authority on administrative law judges or other executive branch officers to invalidate statutes on constitutional or any other grounds. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So. 2d 695, 699 (Fla. 1978). Since only a court of competent jurisdiction can rule that the permitting statute is unconstitutional as applied

to Petitioner, the undersigned declines to rule on Petitioner's constitutional arguments.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order that adopts the findings and conclusions set forth herein and requires Petitioner to remove the signs pursuant to the provisions of Section 479.105, Florida Statutes.

DONE AND ENTERED this 2nd day of March, 2007, 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 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2007.

ENDNOTES

1/ Unless otherwise stated all statutory references are to Florida Statutes (2005), the effective law when the Notice of Violation was issued.

2/ Petitioner styled its post-hearing submission as its Proposed Final Order. The use of the word Final instead of Recommended is viewed by the undersigned as a scrivener's error. This proposed order will be referred to as a recommended order.

3/ The parties stipulated to the facts set forth in this paragraph and in the following paragraph. Respondent's Exhibits

5 and 6 are the written agreements pertaining to the lease of the advertising displays.

4/ There was no contention by Petitioner it was exempt from the permitting process pursuant to the exceptions found in either Section 479.105(1)(e) or Section 479.16, Florida Statutes.

Since Petitioner does not rely on Section 479.16(1), Florida Statutes, which provides an exception for on-premises signs, the parties’ stipulation that "Big Times Productions, Inc. does not manufacture or sell alcoholic beverages" is irrelevant and has not been incorporated as a Finding of Fact.

5/ Pursuant to Section 479.07(9)(b)3, Florida Statutes, Respondent cannot issue a permit for a sign that exceeds 950 square feet. Each of the subject signs is too large to be permitted.

COPIES FURNISHED:

Daniel L. Weiss, Esquire Tannebaum Weiss, LLP

Museum Tower, Penthouse 2850

150 West Flagler Street Miami, Florida 33130

Susan Schwartz, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Jennifer J. Ator, Esquire Tannebaum Weiss, LLP Museum Tower, Penthouse

150 West Flagler Street, Suite 2850 Miami, Florida 33130

James C. Myers, Agency Clerk Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephanie Kopelouso, Interim Secretary Department of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 06-003032

Orders for Case No: 06-003032