STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VAN WAGNER COMMUNICATIONS, LLC, | ) | |||
A NEW YORK LIMITED LIABILITY | ) | |||
COMPANY, | ) ) | |||
Petitioner, | ) | |||
) | ||||
vs. | ) | Case | No. | 08-1811RP |
) | ||||
DEPARTMENT OF TRANSPORTATION, | ) | |||
) | ||||
Respondent. | ) | |||
| ) | |||
FUEL MIAMI, LLC., | ) | |||
) | ||||
Petitioner, | ) ) | |||
vs. | ) ) | Case | No. | 08-1824RP |
DEPARTMENT OF TRANSPORTATION, | ) ) | |||
Respondent. | ) | |||
| ) |
FINAL ORDER
Pursuant to notice, a final hearing was held in Tallahassee, Florida, on November 18, 2008, and closing oral argument was conducted by telephone conference call on January 23, 2009, before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings, in these consolidated cases.
APPEARANCES
For Petitioner Van Wagner Communications, LLC:
Mathew H. Mandel, Esquire Laura K. Wendell, Esquire
Weiss, Serota, Helfman, Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Boulevard, Suite 700 Coral Gables, Florida 33134-6045
For Petitioner Fuel Miami, Inc.:
Donna Holshouser Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
For Respondent Department of Transportation:
Susan Schwartz, Esquire Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE
Whether proposed Florida Administrative Code Rule 14- 10.025, as amended, which describes how the "approval of wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid primary highway may be obtained" from the Florida Department of Transportation (Department), is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.
PRELIMINARY STATEMENT
On April 11, 2008, Van Wagner Communications, LLC (Van Wagner) and Fuel Miami, Inc. (Fuel Miami) filed separate petitions with the Division of Administrative Hearings (DOAH) seeking a determination of the invalidity of a proposed rule of the Department of Transportation (Department), proposed Florida Administrative Code Rule 14-10.025. Van Wagner's petition was docketed as DOAH Case No. 08-1811RP. Fuel Miami's petition was docketed as DOAH Case No. 08-1824RP. Finding that the petitions "appear[ed] to comply with the requirements of Section 120.56(2), Florida Statutes," DOAH's Chief Judge, on April 14, 2008, assigned both cases to the undersigned.
On April 18, 2008, the Department filed a motion to consolidate DOAH Case Nos. 08-1811RP and 08-1824RP. In its motion, the Department represented that Van Wagner and Fuel Miami had "no objection to consolidating these matters" and that "the parties in both case ha[d] agreed to waive the thirty day hearing requirement of Section 120.56, Florida Statutes, and ha[d] consented to a hearing date of June 16, 2008, subject to any request for a continuance or agreement of the parties that a factual presentation [was] unnecessary." On April 21, 2008, the motion to consolidate was granted and a final hearing in the consolidated cases was scheduled for June 16, 2008.
On May 21, 2008, the Department, on behalf of all parties, filed a motion to hold these consolidated cases in abeyance to give the Department the opportunity to make changes to proposed Florida Administrative Code Rule 14-10.025. The motion was granted, and the parties were directed to file a status report on or before August 1, 2008.
On August 1, 2008, the Department filed a Status Report, in which it requested, "with concurrence from both Petitioners, that the challenge to proposed rule 14-10.025 be taken out of abeyance and scheduled for hearing." In its report, the Department advised that it had published a "Notice of Change to Rule 14-10.025" and that both Van Wagner and Fuel Miami had been "notified of the rule change" and had indicated that "they wish[ed] to continue the rule challenge[s]" they had initiated.
On August 5, 2008, a Notice of Hearing was issued scheduling the final hearing in these consolidated cases for November 18, 2008.
On August 25, 2008, Van Wagner and Fuel Miami each filed amended petitions seeking a determination of the invalidity of the revised version of proposed Florida Administrative Code Rule 14-10.025 and requesting an award of attorney fees pursuant to Section 120.595, Florida Statutes.
On November 12, 2008, the parties filed a Joint Stipulated Pre-Hearing Report, in which they provided the following "[c]oncise [s]tatement of the [n]ature of the [c]ontroversy":
Petitioners challenge proposed Department rule 14-10.025, Florida Administrative Code, which would limit wall murals authorized under Section 479.156, Florida Statutes (2007) to 1200 square feet in area, unless a county or municipality exercises local control consistent with the intent of the Highway Beautification Act of 1965
(23 U.S.C. § 131) and with customary use. The rule defines "customary use" as "the predomina[nt], usual practice with regard to size, lighting, and spacing of signs existing in the municipality or county as of the date of the Federal/State agreement[,] being January 27, 1972." Petitioners assert that the Department's definition of customary use is arbitrary and capricious, that the Department is without authority to define customary use or interfere with a local zoning authority's adoption of ordinances on wall murals, and that the rule is an invalid exercise of delegated legislative authority.
Petitioners' positions were further explained as follows in the immediately succeeding section of the Joint Stipulated Pre- Hearing Report:
Petitioner Fuel Miami, LLC
Fuel Miami LLC asserts that the proposed rule is an invalid exercise of delegated legislative authority mean[ing] action that goes beyond the powers, functions, and duties delegated by the Legislature, that the agency has exceeded its grant of rulemaking authority, that the proposed rule enlarges, modifies, and contravenes the specific provisions of law implemented, and
that the proposed rule is arbitrary or capricious.
Nothing in . . . § 479.156 (Fla. Stat. 2007) allows the Department to make a determination, or regulate in any way a local zoning authority's determination of customary use relative to wall murals. The statute is self-executing. Additionally, the Department's definition is unsupported [by] any law, state or federal, and is irrational.
Petitioner Van Wagner Communications, LLC
Van Wagner asserts that the proposed rule is an invalid exercise of delegated legislative authority because the FDOT has exceeded its rule making authority by purporting to impose a requirement upon local governments that they demonstrate the validity of their wall mural regulations to FDOT, or else, be subject to statewide default regulations, and by purporting to define "customary use." Florida Statute § 479.156 does not confer this authority on FDOT in either regard.
The Proposed Rule furthermore "enlarges, modifies, or contravenes" the legislation it purports to implement because it adds requirements absent from the legislation, and is "arbitrary and capricious."
In a subsequent portion of their Joint Stipulated Pre-Hearing Report, the parties stipulated that "[DOAH] has jurisdiction over the subject matter and the parties hereto" and that "Fuel Miami, LLC, and Van Wagner Communications, LLC, have standing and timely challenged the Department's actions."
The evidentiary portion of the final hearing in these consolidated cases was held on November 18, 2008, as scheduled.
The lone witness to testify at the hearing was John Garner, the head of the Department's Office of Right-of-Way. In addition to Mr. Garner's testimony, 20 exhibits were offered and received into evidence (Joint Exhibits 1 through 6; Petitioners' Exhibits
1 through 9; and Respondent's Exhibits 1 through 5).
After the taking of evidence at the November 18, 2008, hearing, the undersigned, at the request of the parties, established the following post-hearing schedule: proposed final orders to be filed no later than January 9, 2009; supplemental proposed final orders to be filed no later than January 16, 2009; and closing oral argument to be held by telephone conference call on January 23, 2009.
The parties timely filed their proposed final orders and supplemental proposed final orders on January 9, 2009, and January 16, 2009, respectively.
Closing oral argument was heard by telephone conference call on January 23, 2009.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
Chapter 479, Florida Statutes, regulates "signs in areas adjacent to state highways." The "[l]egislative intent
with respect to [such] regulation" is described as follows in Section 479.015, Florida Statutes:
The control of signs in areas adjacent to the highways of this state is declared to be necessary to protect the public investment in the state highways; to attract visitors to this state by conserving the natural beauty of the state; to preserve and promote the recreational value of public travel; to assure that information in the specific interest of the traveling public is presented safely and aesthetically; to enhance the economic well-being of the state by promoting tourist-oriented businesses, such as public accommodations, vehicle services, attractions, campgrounds, parks, and recreational areas; and to promote points of scenic, historic, cultural, and educational interest.
The regulatory program established by Chapter 479, Florida Statutes, involves the Department's permitting of signs that meet established requirements.
Section 479.07, Florida Statutes, is entitled, "Sign Permits."
Subsection (1) of the statute, provides as follows:
Except as provided in ss. 479.105(1)(e)[1] and 479.16,[2] 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. 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.
"Controlled area," as that term is used in Section 479.07(1) and elsewhere in Chapter 479, Florida Statutes, is defined in Section 479.01(4), Florida Statutes, as "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."
Section 479.07(9)(a) and (b), Florida Statutes, prescribes spacing and size requirements for Department- permitted signs. It provides as follows:
A permit shall 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:
One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.
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.
A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign:
Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporated area;
Exceeds 65 feet in sign structure height above the crown of the main-traveled way, if inside an incorporated area; or
Exceeds 950 square feet of sign facing including all embellishments.
Section 479.11, Florida Statutes, enumerates "[s]pecified signs [that are] prohibited" and for which a permit may not be issued. It provides, in pertinent part, as follows:
No sign shall be erected, used, operated, or maintained:
Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in ss. 479.111 and 479.16.
Beyond 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system outside an urban area, which sign is erected for the purpose of its message being read from the main- traveled way of such system, except as provided in ss. 479.111(1) and 479.16.
* * *
Section 479.111, Florida Statutes, contains an exhaustive listing of those "[s]pecified signs [that are]
allowed within controlled portions of the interstate and federal-aid primary highway system" and for which a permit may be issued. It provides as follows:
Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal-aid primary highway system as set forth in s. 479.11(1) and (2):
Directional or other official signs and notices which conform to 23 C.F.R. ss. 750.151-750.155.
Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of- way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation.
Signs for which permits are not required under s. 479.16.
Grouped together (in Sections 479.15, 479.155, and 479.156, Florida Statutes) are three statutes that each address regulation of signs by local authorities.
Section 479.15, Florida Statutes, is entitled, "Harmony of Regulations." It provides, in pertinent part, as follows:
(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.[3]
Section 479.155, Florida Statutes, is entitled, "Local outdoor advertising or sign ordinances." It provides as follows:
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.
(Sections 125.0102 and 166.0425, Florida Statutes, similarly provide, "Nothing in chapter 78-8, Laws of Florida, shall be deemed to supersede the rights and powers of municipalities and counties to establish sign ordinances," and they add the caveat (consistent with Section 479.15, Florida) that "such ordinances shall not conflict with any applicable state or federal laws.")
The most recent of the statutes in the group is Section 479.156, Florida Statutes, which deals specifically with signs that constitute "wall murals." The statute was created by the Florida Legislature through the passage of Chapter 2007-196, Laws of Florida. It became law on July 1, 2007, and has remained in effect unchanged since then,4 providing as follows:
Wall murals
Notwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government.[5] If a municipality or county permits wall murals, a wall mural that displays a commercial message and is within 660 feet of the nearest edge of the right-of-way within an area adjacent to the interstate highway system or the federal-aid primary highway
system shall be located in an area that is zoned for industrial or commercial use and the municipality or county shall establish and enforce regulations for such areas that, at a minimum, set forth criteria governing the size, lighting, and spacing of wall murals consistent with the intent of the Highway Beautification Act of 1965 and with customary use. A wall mural that is subject to municipal or county regulation and the Highway Beautification Act of 1965 must be approved by the Department of Transportation and the Federal Highway Administration and may not violate the agreement between the state and the United States Department of Transportation or violate federal regulations enforced by the Department of Transportation under s. 479.02(1). The existence of a wall mural as defined in s.
479.01(27) shall not be considered in determining whether a sign as defined in s. 479.01(17), either existing or new, is in compliance with s. 479.07(9)(a).
The same legislation that created Section 479.156, Florida Statutes, also added the following subsection to Section 479.01, Florida Statutes (which defines various terms used in Chapter 479, Florida Statutes, including Section 479.156, Florida Statutes):
(27) "Wall mural" means a sign[6] that is a painting or an artistic work composed of photographs or arrangements of color and that displays a commercial or noncommercial message, relies solely on the side of the building for rigid structural support, and is painted on the building or depicted on vinyl, fabric, or other similarly flexible material that is held in place flush or flat against the surface of the building. The term excludes a painting or work placed on a structure that is erected for the sole or primary purpose of signage.
The Highway Beautification Act of 1965 (Beautification Act), which is referenced in Section 479.156, Florida States, is a federal law codified at 23 U.S.C. § 131.
The purpose of the Beautification Act is described in
23 U.S.C. § 131(a), which reads as follows:
The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.
23 U.S.C. § 131(b), which reads as follows, provides for a ten percent reduction of a state's share of federal-aid highway funds if the state has failed to maintain "effective control" of outdoor advertising "along the Interstate System and the primary system":
Federal-aid highway funds apportioned on or after January 1, 1968, to any State which the Secretary [of the federal Department of Transportation] determines has not made provision for effective control of the erection and maintenance along the Interstate System and the primary system of outdoor advertising signs, displays, and devices which are within six hundred and sixty feet of the nearest edge of the right- of-way and visible from the main traveled way of the system, and Federal-aid highway funds apportioned on or after January 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, to any State which the Secretary determines has not made provision
for effective control of the erection and maintenance along the Interstate System and the primary system of those additional outdoor advertising signs, displays, and devices which are more than six hundred and sixty feet off the nearest edge of the right-of-way, located outside of urban
areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under section 104 of this title [23 U.S.C. § 104], until such time as such State shall provide for such effective control. Any amount which is withheld from apportionment to any State hereunder shall be reapportioned to the other States. Whenever he determines it to be in the public interest, the Secretary may suspend, for such periods as he deems necessary, the application of this subsection to a State.[7]
What constitutes "effective control," as that term is used in 23 U.S.C. § 131(b), is explained as follows in 23 U.S.C.
§ 131(c):
Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders,
scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located,
signs, displays, and devices including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located,
signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required.
An exception to the restrictions imposed on outdoor advertising by 23 U.S.C. § 131(c) is found in 23 U.S.C. § 131(d), which allows the placement of signs in commercial and industrial areas "consistent with customary use," as "determined by agreement between the several States and the Secretary [of the federal Department of Transportation]." 23 U.S.C. § 131(d) provides as follows:
In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary [of the federal Department of Transportation], may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and primary systems which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States and the Secretary. The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act. Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority. Nothing in this subsection shall apply to signs, displays, and devices referred to in clauses (2) and (3) of subsection (c) of this section.
23 U.S.C. § 131(k) provides that, "[s]ubject to compliance with subsection (g) of this section for the payment of just compensation, nothing in this section shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this section."
Congress has vested the Federal Highway Administration (FHWA), within the federal Department of Transportation, with the authority to promulgate regulations and otherwise carry out the provisions of 23 U.S.C. § 131. Among the regulations that the FHWA has promulgated pursuant to this authority are 23 C.F.R. § 750.705 and 23 C.F.R. § 750.706.
23 C.F.R. § 750.705 describes what a state must do "[i]n order to provide effective control of outdoor advertising." It provides, in pertinent part, as follows:
In order to provide effective control of outdoor advertising, the State must:
* * *
(b) Assure that signs erected under § 750.704(a)(4)[8] and (5)[9] comply, at a minimum, with size, lighting, and spacing criteria contained in the agreement between the Secretary and the State;
* * *
(h) Develop laws, regulations, and procedures to accomplish the requirements of this subpart;
* * *
(j) Submit regulations and enforcement procedures to FHWA for approval.
23 C.F.R. § 750.706 concerns "[s]ign control in zoned and unzoned commercial and industrial areas." It provides as follows:
The following requirements apply to signs located in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way adjacent to the Interstate and Federal-aid primary highways.
The State by law or regulation shall, in conformity with its agreement with the Secretary [of the federal Department of Transportation], set criteria for size, lighting, and spacing of outdoor advertising signs located in commercial or industrial zoned or unzoned areas, as defined in the agreement, adjacent to Interstate and Federal-aid primary highways. If the agreement between the Secretary and the State includes a grandfather clause, the criteria for size, lighting, and spacing will govern only those signs erected subsequent to the date specified in the agreement. The States may adopt more restrictive criteria than are presently contained in agreements with the Secretary.[10]
Agreement criteria which permit multiple sign structures to be considered as one sign for spacing purposes must limit multiple sign structures to signs which are physically contiguous, or connected by the same structure or cross-bracing, or located not more than 15 feet apart at their nearest point in the case of back-to-back or "V" type signs.
Where the agreement and State law permits control by local zoning authorities, these controls may govern in lieu of the size, lighting, and spacing controls set forth in the agreement, subject to the following:
The local zoning authority's controls must include the regulation of size, of lighting and of spacing of outdoor
advertising signs, in all commercial and industrial zones.
The regulations established by local zoning authority may be either more restrictive or less restrictive than the criteria contained in the agreement, unless State law or regulations require equivalent or more restrictive local controls.
If the zoning authority has been delegated, extraterritorial, jurisdiction under State law, and exercises control of outdoor advertising in commercial and industrial zones within this extraterritorial jurisdiction, control by the zoning authority may be accepted in lieu of agreement controls in such areas.
The State shall notify the FHWA in writing of those zoning jurisdictions wherein local control applies. It will not be necessary to furnish a copy of the zoning ordinance. The State shall periodically assure itself that the size, lighting, and spacing control provisions of zoning ordinances accepted under this section are actually being enforced by the local authorities.
Nothing contained herein shall relieve the State of the responsibility of limiting signs within controlled areas to commercial and industrial zones.
The "agreement between the state and the United States Department of Transportation" (1972 Agreement) referenced in Section 479.156, Florida Statutes (as well as in Section 479.111(2), Florida Statutes) was entered into on January 27, 1972, pursuant to 23 U.S.C. § 131(d), by the FHWA Administrator
(acting on behalf of the federal Department of Transportation) and the Governor of the State of Florida (acting on behalf of the State).
The 1972 Agreement contains the following "WHEREAS"
clauses:
WHEREAS, Congress has declared that outdoor advertising in areas adjacent to the Interstate and Federal-aid Primary Systems should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty; and
WHEREAS, Section 131(d) of Title 23, United States Code, authorizes the Secretary of Transportation to enter into agreements with the several States to determine the size, lighting, and spacing or signs, displays, and devices, consistent with customary use, which may be erected and maintained within six hundred sixty (660) feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and Federal-aid Primary Systems which are zoned industrial or commercial under authority of State law or in unzoned commercial or industrial areas, also to be determined by agreement; and
WHEREAS, the purpose of said agreement is to promote the reasonable, orderly, and effective display of outdoor advertising while remaining consistent with the national policy to protect the public investment in the Interstate and Federal-aid Primary Highways, to promote the safety and recreational value of public travel and to preserve natural beauty; and
WHEREAS, Section 131(b) of Title 23, United States Code, provides that Federal-aid
highway funds apportioned on or after January 1, 1968, to any State which the Secretary determines has not made provision for effective control of the erection and maintenance along the Interstate System and Primary System of outdoor advertising signs, displays, and devices which are within six hundred and sixty (660) feet of the nearest edge of the right-of-way and visible from the main traveled way of the system, shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under Section 104 of Title 23, United States Code, until such time as such State shall provide for such effective control; and
WHEREAS, the State of Florida desires to implement and carry out the provisions of Section 131 of Title 23, United States Code, and the national policy in order, among other things, to remain eligible to receive the full amount of all Federal-aid highway funds to be apportioned to it on or after January 1, 1968, under Section 104 of Title 23, United States Code;
Section I. of the 1972 Agreement contains definitions of the following terms used in the agreement: "Act"; "Unzoned commercial or industrial area"; "Commercial or industrial area"; "National System of Interstate and Defense Highways and Interstate System"; "Federal-aid Primary Highway"; "Main- traveled way"; "Sign"11; "Erect"; "Maintain"; "Safety rest area"; and "Visible." The term "customary use" (found in the agreement's second "WHEREAS" clause and in Section III) is not defined anywhere in the agreement.
Section II. of the 1972 Agreement is entitled, "Scope of Agreement," and it reads as follows:
This agreement shall apply to the following areas:
All zoned and unzoned commercial and industrial areas within six hundred sixty (660) feet of the nearest edge of the right- of-way of all portions of the Interstate and Federal-aid Primary Systems within the State of Florida in which outdoor advertising signs may be visible from the main-traveled way of either or both of said systems.
Section III. of the 1972 Agreement is entitled, "State Control," and it reads as follows:
The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria:
In zoned commercial and industrial areas, the State may notify the Administrator that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply.
In all other zoned and unzoned commercial and industrial areas, the criteria set forth below shall apply:
SIZE OF SIGNS
The maximum area for any one sign shall be twelve hundred (1,200) square feet with a maximum height of thirty (30) feet and maximum length of sixty (60) feet, inclusive of any border and trim but excluding the base or apron, supports, and other structural members.
The area shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof which will encompass the entire sign.
The maximum size limitations shall apply to each side of a sign structure; and signs may be placed back-to-back, side-by-side, or in V-type construction with not more than two displays to each facing, and such sign structure shall be considered as one sign.
SPACING OF SIGNS
Interstate and Federal-aid Primary Highways.
Signs may not be located in such a manner as to obscure, or otherwise physically interfere with the effectiveness of an official traffic sign, signal, or device, obstruct or physically interfere with the deriver's view of approaching, merging, or intersecting traffic.
Interstate Highway.
No two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction.
Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or safety rest area. Said five hundred (500)
feet to be measured along the Interstate from the beginning or ending of pavement widening at the exit from or entrance to the main traveled [way.]
Federal-aid Primary Highways.
No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction.
Explanatory Notes.
Official and "on premise" signs, as defined in Section 131(c) of Title 23, United States Code, and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements.
The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway and shall apply only to structures located on the same side of the highway.
LIGHTING
Signs may be illuminated subject to the following restrictions:
Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.
Signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of the Interstate or Federal- aid Primary Highway and which are of such intensity or brilliance as to cause glare or
to imp[air] the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited.
No sign shall be so illuminated that it interferes with the effectiveness of, or obscures an official traffic sign, device, or signal.
All such lighting shall be subject to any other provisions relating to lighting of signs presently applicable to all highways under the jurisdiction of the State.
At any time that a bona fide county or local zoning authority adopts regulations which include the size, lighting, and spacing of outdoor adverting, the State may so certify to the Administrator and control of outdoor advertising in the commercial or industrial zones within the geographical jurisdiction of said authority will transfer to subsection A of this section.
It is hereby agreed that the State shall not be required to remove any tourist- oriented directional sign until the Highway Beautification Commission has submitted its report to the Congress of the United States.
It is further agreed that the removal of such signs will be of the lowest priority in the State's removal schedule.
The size, lighting, and spacing criteria set forth in Subsection
III.B. are the product of what the parties to the agreement deemed to be the statewide "customary use" with respect to outdoor advertising in the affected areas of the State, as of the date of the agreement, January 27, 1972.
Section IV. of the 1972 Agreement is entitled, "Interpretations," and it reads as follows:
The provisions contained herein shall constitute the standards for effective control of signs, displays, and devices within the scope of this agreement.
In the event the provisions of the Highway Beautification Act of 1965 are amended by subsequent action of Congress or the State legislation is amended, the parties reserve the right to renegotiate this agreement or to modify it to conform to any amendment.
There is no evidence that the 1972 Agreement has been modified, pursuant to the provisions of Section IV., at any time subsequent to its execution in 1972.12
Section V. of the 1972 Agreement provides that the "agreement shall have an effective date of the 27th day of January, 1972."
The Legislature has delegated to the Department the responsibility of administering and enforcing the 1972 Agreement, as well as Chapter 479, Florida Statutes. These and other duties of the Department are described in Section 479.02, Florida Statutes, which provides, in pertinent part, as follows:
It shall be the duty of the department to:
Administer and enforce the provisions of this chapter and the agreement between the state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States
Code, and federal regulations in effect as of the effective date of this act.[13]
Regulate size, height, lighting, and spacing of signs permitted in zoned and unzoned commercial areas and zoned and unzoned industrial areas on the interstate highway system and the federal-aid primary highway system.
Determine unzoned commercial areas and unzoned industrial areas.
* * *
(7) Adopt such rules as it deems necessary or proper for the administration of this chapter, including rules which identify activities that may not be recognized as industrial or commercial activities for purposes of determination of an area as an unzoned commercial or industrial area.
* * *
Other Florida statutory provisions that delegate authority to the Department include Sections 334.044(2) and 339.05, Florida Statutes, which provide as follows:
Section 334.044(2), Florida Statutes
The department shall have the following general powers and duties:
To adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of law conferring duties upon it.
Section 339.05, Florida Statutes
The state hereby assents to the provisions of the Act of Congress approved July 11, 1916, known as the Federal Aid Law, which Act of Congress is entitled "An act to provide that the United States shall aid the
states in the construction of rural post roads and for other purposes," and assents to all subsequent amendments to such Act of Congress and any other act heretofore passed or that may be hereafter passed providing for federal aid to the states for the construction of highways and other related projects. The department is authorized to make application for the advancement of federal funds and to make all contracts and do all things necessary to cooperate with the United States Government in the construction of roads under the provisions of such Acts of Congress and all amendments thereto.
In 1995, the City of Tampa requested that it be allowed, pursuant to Subsection III.A. of the 1972 Agreement, to regulate outdoor advertising on property controlled by the Tampa Sports Authority in lieu of the more restrictive controls established in the agreement. By letter dated November 13, 1995, the Department (exercising its authority to administer and enforce the 1972 Agreement on behalf of the State of Florida) notified the FHWA that it had certified that the City of Tampa had "established effective control of outdoor advertising" within the area in question. In its letter, the Department advised, among other things, that a showing had been made that the "uses recognized" by the City of Tampa "were in place . . . prior to 1972." The FHWA responded to this notification by sending the Department a letter dated November 17, 1995, in which it stated the following:
Your letter dated November 13, 1995 requesting that the City of Tampa be authorized to control outdoor advertising signs in the Tampa Sports Authority Complex along Dale Mabry Highway has been reviewed. The [FHWA] appreciates the opportunity to participate in this initial effort to delegate the control of outdoor advertising signs to local officials as authorized by the applicable Federal Regulations. The proposal and plan to control the erection of outdoor advertising signs in the Stadium Complex are considered to be in compliance with Federal requirements and the proposal is approved as requested.
If similar requests are made by other local jurisdictions, it will not be necessary for this office to review and approve individual requests if they follow the same basic format as this proposal
No other jurisdiction in Florida has been certified by the Department as exercising "effective control" over outdoor advertising pursuant to Subsection III.A. of the 1972 Agreement.
The instant controversy involves the validity of a proposed Department rule (Florida Administrative Code Rule 14- 10.025) regulating "wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid primary highway."
The original version of the proposed rule was published in the February 23, 2008, edition of the Florida Administrative Weekly.
Petitions challenging the original version of the proposed rule were filed with DOAH by Van Wagner and Fuel Miami on April 11, 2008.
A hearing on the petitions (which were consolidated) was scheduled for June 16, 2008.
On May 21, 2008, the Department filed an Agreed Motion for Abeyance, in which it stated the following:
This consolidated proceeding involves a challenge to Proposed Rule 14-10.025, Florida Administrative Code. A hearing is currently scheduled for June 16, 2008.
The Department relied on the 2007 enactment of Section 479.156, Florida Statutes, as authority for the proposed rule.
On May 2, 2008, the Florida legislature passed Senate Bill 682, which included in Section 42 the following underlined and strike through changes to Section 479.156, Florida Statutes:
"479.156 Wall murals.--Notwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government. If a municipality or county permits wall murals, a wall mural that displays a commercial message and is within 660 feet of the nearest edge of the right-of-way within an area adjacent to the interstate highway system or the federal-aid primary highway system shall be located in an area that is zoned for industrial or commercial use and the municipality or county shall establish and enforce regulations for such areas that, at a minimum, set forth criteria governing the size, lighting, and spacing of wall murals
consistent with the intent of the Highway Beautification Act of 1965 and with customary use. Whenever a municipality or county exercises such control and makes a determination of customary use, pursuant to 23 U.S.C. s. 131(d), such determination shall be accepted in lieu of controls in the agreement between the state and the United States Department of Transportation, and the Department of Transportation shall notify the Federal Highway Administration pursuant to the agreement, 23 U.S.C. s. 131(d), and 23 C.F.R. s. 750.706(c). A wall mural that is subject to municipal or county regulation and the Highway Beautification Act of 1965 must be approved by the Department of Transportation and the Federal Highway Administration where required by federal law and federal regulation pursuant to and may not violate the agreement between the state and the United States Department of Transportation and or violate federal regulations enforced by the Department of Transportation under s. 479.02(1). The existence of a wall mural as defined in s.
479.01(27) shall not be considered in determining whether a sign as defined in s. 479.01(17), either existing or new, is in compliance with s. 479.07(9)(a)."
The bill is awaiting presentation to the Governor.
Based on changes to the implementing legislation and comments received during the workshop process, the Department plans to publish a Notice of Change to Rule 14- 10.025, Fla. Admin. Code within the next forty-five days.
The parties have agreed that a hearing on the current version of the proposed rule would be unproductive.
Wherefore, the Department requests with concurrence from both Petitioners that the June 16, 2008, hearing be cancelled and the
above styled matter be placed in abeyance with the parties to report the status of this matter by August 1, 2008.
The Department's motion was granted by the undersigned by order issued May 23, 2008.
The bill amending Section 479.156, Florida Statutes, that the Department had cited in its May 21, 2008, Agreed Motion for Abeyance was vetoed by the Governor on June 17, 2008.
On July 18, 2008, the Department published a notice in the Florida Administrative Weekly of changes it had made to proposed Florida Administrative Code Rule 14-10.025. As amended, the proposed rule reads as follows:
14-10.025 Wall Murals.
Department approval of wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid primary highway may be obtained either by compliance with local sign control in municipalities or counties exercising such control pursuant to subsection (2) of this rule or by direct approval as set forth in subsection (3) of this rule.
In order to exercise local sign control over wall murals pursuant to 23 U.S.C. 131(d), 23 C.F.R. 750.706(c) and the Agreement between the State of Florida and the United States Department of Transportation (Federal/State Agreement), a municipality or county must demonstrate to the Department that it has established and will enforce regulations with criteria governing the size, lighting, and spacing of signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. Customary use means the
predominant, usual practice with regard to size, lighting, and spacing of signs existing in the municipality or county as of the date of the Federal/State Agreement, being January 27, 1972.
Upon Department acceptance of a municipality or county's exercise of local control, the Department will notify the Federal Highway Administration pursuant to
23 CFR 750.706(c). The Department will monitor the municipality or county for continuing effective local control.
Exercise of local control will be disallowed if the municipality or county fails to enforce its regulations or if the Federal Highway Administration notifies the Department of an intent to impose the penalty provided for in 23 USC 131(b) because the exercise of local control by the municipality or county has resulted in a of [sic] loss of effective control of outdoor advertising.
Wall murals maintained in violation of local control requirements are illegal signs subject to local enforcement and removal in accordance with Section 479.105, F.S.
In municipalities or counties which permit and regulate wall murals but which do not exercise local sign control as a [sic] described above, application for approval of a wall mural is made by completing and submitting the form Application for Wall Mural Approval, Form 575-070-31, Rev. 09/07, incorporated herein by reference, to the address listed in subsection 14-10.003(2),
F.A.C. The application form may be obtained from the State Outdoor Advertising License and Permit Office.
A separate application is required for each wall mural.
Priority of applications will be based upon the order of receipt of completed applications.
An application will be considered complete when all items on the application form have been filled in, and all required attachments received.
Incomplete applications will be returned to the applicant without Departmental action. Applications containing incorrect information will be returned to the applicant as denied.
Once an application form has been received by the Department, any change or addition to the application form as submitted must be initialed by the applicant on the original application document.
Each application must include the following attachments:
A statement from the municipality or county government within whose jurisdiction the mural is to be located that the property on which the mural is to be located is zoned for commercial or industrial use,
A statement from the municipality or county government approving the placement of the wall mural as described in the Application,
A copy of the municipality or county ordinance enacted in conformance with Section 479.156, F.S., allowing for the placement of wall murals,
A photograph of the building on which the mural will be displayed, and
Payment for the initial fee in the amount set forth in Rule 14-10.0043, F.A.C., for outdoor advertising permit fees.
In order to be approved by the Department, all the following requirements must be met:
The property on which the wall mural is to be located must be zoned for commercial or industrial uses.
The height of the mural may not exceed
30 feet.
The width of the mural may not exceed 60 feet.
The total area of the mural may not exceed 1,200 square feet.
Wall murals must meet minimum spacing from any permitted outdoor advertising sign or previously approved wall mural. Minimum spacing is 500 feet on the federal aid primary highway system and 1,000 feet on the Interstate highway system. Measurements are taken from the midpoint of a mural placed parallel to the controlled roadway and from the point of the mural closest to the roadway for right or left read displays.
Wall murals may not be located within
500 feet of an interstate interchange outside an incorporated area.[14]
An annual fee in the amount established in Rule 14-10.0043, F.A.C., for outdoor advertising permit fees must be paid.
The Department shall deny any application for a wall mural and will revoke any previously issued permit if the Department receives notification from the Federal Highway Administration that the wall mural is not approved under federal laws or regulations.
The Department will approve or deny complete applications within 30 days of receipt by the Department.
Specific Authority 334.044(2), 479.02(7)
FS. Law Implemented 339.05, 479.02, 479.07,
479.15, 479.156 FS.
In defining "customary use" in the amended version of proposed Florida Administrative Code Rule 14-10.025 (Amended Proposed Rule), the Department borrowed from what, according to information it had received from the FHWA, was the definition employed by the FHWA.
Prior to publishing notice of the Amended Proposed Rule, the Department had obtained from the FHWA, in response to an inquiry it had made, a copy of a February 14, 2007, e-mail from the FHWA's Janis Gramatins and a copy of a March 17, 2008, memorandum authored by the FHWA's Gerald Solomon, Esquire. Both of these documents addressed the meaning of the term "customary use," as it had been interpreted by the FHWA.15
Ms. Gramatins' e-mail read, in pertinent part, as follows:
It is also noted that during our phone conversation, it appears that some confusion may have arisen over interpretation of the Florida agreement and the corresponding sections of the HBA, namely Section III of the agreement and Federal HBA requirements, Title 23, United States Code, Section 131(d) and Title 23, Code of Federal Regulations, Subsection 750.706. A casual reading may indicate that any time a bona fide State, county or local jurisdiction makes a determination of customary use, such determination will be accepted in lieu of controls specified in the agreement in the zoned commercial and industrial areas within
the geographic area of the jurisdiction. That is not the case. The words "customary use" must be interpreted within the context of the time when the agreement was written.[16]
In executing its agreement with the United States in 1972, the State of Florida determined that customary use limited the size of signs in Florida to 1,200 square feet and made no exceptions for larger signs within its political subdivisions or other jurisdictions of the State. Any sign in existence at the time the agreement was executed that exceeded the limitation of 1,200 square feet would have been classified as nonconforming and subject to purchase and removal. Any sign erected since execution of the agreement that exceeded the 1,200 square foot limit would be illegal and subject to removal without compensation.
Even if the city (Miami) secures Florida certification, the signs would remain illegal unless the city could show a history of signs in 1968 [sic], when the agreement was executed,[17] that were differently sized, spaced or lighted from the State standards within its zoning authority. We understand that signs like these have no customary use in Miami or the State of Florida. They cannot now be deemed "customary."[18]
In his memorandum, Mr. Solomon discussed FHWA's "long held position" on what constitutes "customary use." The memorandum read as follows:
The purpose of this memorandum is to respond to your correspondence of March 4, 2008, regarding the Federal Highway Administration (FHWA) position on building/wall murals as it relates to customary use. Murals which contain commercial advertisement, which are along federally controlled routes, must
comply with State/Federal agreement criteria for size, spacing, and/or zoning.
Your questions relate to the interpretation of customary use. In the Highway Beautification Act (HBA), codified at 23
U.S.C. § 131, the term "customary use" appears twice in subsection (d). Your questions are concerned with the FHWA interpretation of the term as it appears the second time in subsection (d):
"Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority."
The FHWA reiterates its long held position on this matter; the term "customary use" in the above sentence refers to the predominant, usual outdoor advertising signs existing in a zoning authority's jurisdiction as of the date the State/Federal agreement was executed.[19] The term is limited to the size, lighting and spacing standards for outdoor advertising signs and displays within the zoning authority. The FHWA has maintained this interpretation since at least 1990 (as old documents have attested). The issue of customary use within a local zoning authority has not generated much controversy over the years. There were very few local zoning authorities in the United States which made a determination of customary use as specified in § 131(d), and most were established about the time of the execution of the State/Federal agreements. In the past few years the issue has arisen in Dallas, Texas, and Columbus, Ohio, because of the desire to erect exceedingly large outdoor advertising displays. In both of these instances, the FHWA has maintained
that the cities would have to demonstrate that such large signs were in customary use at the time the State/Federal agreements were signed. Dallas had been a certified city (i.e., a recognized local zoning authority that controls signs in zoned areas in the city) since the early 1970's, so the date of the State/Federal agreement was not important. The City of Columbus is not a certified city so the date of their State/Federal agreement was important.
Again, the FHWA said that the city of Columbus had to show that such large signs were a customary use within its jurisdction at the time the agreement between the State of Ohio and the FHWA was executed.
The FHWA's position in the Dallas, Texas matter referenced in Mr. Solomon's memorandum was explained in a letter, dated September 2, 2003, from FHWA Administrator Mary Peters to Texas Congressman Pete Sessions, which read, in pertinent part, as follows:
. . . . TxDOT rules do allow cities to be less strict than the State on size, lighting, and spacing criteria. However, the State-Federal agreement requires these municipal criteria to be consistent with the purpose of the HBA and with customary use prior to the date of the Federal-State agreement.
During the meeting with Mr. Anderson, the subject of "customary use" was discussed. "Customary use" would apply to Mr. Rogers' sign if such signs had been customarily in use in Dallas, as the certifying city, prior to the HBA State-Federal agreement. The TxDOT letter stated that signs of the size in question had not been a common practice and are prohibited. If Mr. Rogers has information to the contrary, I suggest he present it to TxDOT for consideration.
The FHWA's position in the Columbus, Ohio matter referenced in Mr. Solomon's memorandum was explained in a letter, dated May 19, 2005, from FHWA Administrator Peters to Ohio Congresswoman Deborah Pryce, which read, in pertinent part, as follows:
As described in the material you enclosed, the Ohio Department of Transportation (ODOT) has ordered the removal of three signs belonging to Orange Barrel Media that were erected as part of the graphics plan. The order was issued because the signs exceed the maximum size allowed by Ohio law and the ODOT's agreement of June 26, 1968, with the Federal Highway Administration.
It appears that some confusion has arisen over the interpretation of the agreement and the corresponding sections of the HBA, namely Section III of the agreement and Federal HBA requirements at Title 23, United States Code 131(d) and Title 23, Code of Federal Regulations, Subsection 750.706. A casual reading may indicate that any time a bona fide State, county or local jurisdiction makes a determination of customary use, such determination will be accepted in lieu of controls specified in the agreement in the zoned commercial and industrial areas within the geographic area of the jurisdiction. That is not the case. The words "customary use" must be interpreted within the context of the time when the agreement was written.
Under the FHWA's regulations, the city of Columbus is seeking ODOT certification to regulate outdoor advertising along highways subject to the HBA. We understand that the proposed ordinance submitted by the city is not sufficient in scope to substitute for State regulation. If the city resubmits a request that satisfies ODOT certification
criteria, the city will be expected to adhere, at a minimum, to the size, spacing, and lighting requirements in the agreement; the city would be able to adopt more stringent, but not less stringent requirements.
In executing its agreement with the United States in 1968, the State of Ohio determined that customary use limited the size of signs in Ohio to 1,200 square feet and made no exceptions for larger signs within its political subdivisions or other jurisdictions of the State. Any sign in existence at the time the agreement was executed that exceeded the limitation of 1,200 square feet would have been classified as nonconforming and subject to purchase and removal. Any sign erected since execution of the agreement that exceeded the 1,200 square foot limit would be illegal and subject to removal without compensation.
The three signs in question violate the agreement because of their size and, in one case, spacing. Even if the city secures ODOT certification, the signs would remain illegal unless the city could show a history of signs in 1968, when the agreement was executed, that were differently sized, spaced or lighted from the State standards within its zoning authority. We understand that signs like these have no history of customary use in Columbus. They cannot now be deemed customary.[20]
CONCLUSIONS OF LAW
In the instant case, Petitioners are challenging proposed Florida Administrative Code Rule 14-10.025, as amended, pursuant to Section 120.56, Florida Statutes, which allows substantially affected persons to challenge the facial validity of proposed rules. See Fairfield Communities v. Florida Land
and Water Adjudicatory Commission, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988)("At the outset, we note that we are being asked [in this appeal of a DOAH final order in a rule challenge proceeding] to determine the facial validity of these two rules [being challenged], not to determine their validity as applied to specific facts, or whether the agency has placed an erroneous construction on them."); and Association of Florida Community Developers v. Department Of Environmental Protection, No. 04- 0880RP, 2006 Fla. Div. Adm. Hear. LEXIS 62 *23 (Fla. DOAH
February 24, 2006)(Final Order)("A rule challenge proceeding under Section 120.56, Florida Statutes, constitutes a challenge to the facial validity of the rule and is not to determine the validity of a rule as applied to specific facts.").
It is undisputed that Petitioners have standing to pursue such a challenge and that the undersigned, as a DOAH administrative law judge, has jurisdiction to hear their challenge.
Subsections (1) and (2) of Section 120.56, Florida Statutes, provides, in pertinent part, as follows:
120.56 Challenges to rules.–
GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that
the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
The petition shall be filed with the division which shall, immediately upon filing, forward copies to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division director shall, if the petition complies with the requirements of paragraph (b), assign an administrative law judge who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn or a continuance is granted by agreement of the parties or for good cause shown. Evidence of good cause includes, but is not limited to, written notice of an agency's decision to modify or withdraw the proposed rule or a written notice from the chair of the committee stating that the committee will consider an objection to the rule at its next scheduled meeting. The failure of an agency to follow the applicable rulemaking procedures or requirements set forth in this chapter shall be presumed to be material; however, the agency may rebut this presumption by showing that the substantial interests of the petitioner and the fairness of the proceedings have not been impaired.
Within 30 days after the hearing, the administrative law judge shall render a decision and state the reasons therefor in writing. The division shall forthwith transmit copies of the administrative law
judge's decision to the agency, the Department of State, and the committee.
Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. Other substantially affected persons may join the proceedings as intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.
CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.
Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule by filing a petition seeking such a determination with the division within 21 days after the date of publication of the notice required by s. 120.54(3)(a), within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(e)d., within 20 days after the statement of estimated regulatory costs required pursuant to s. 120.541, if applicable, has been provided to all persons who submitted a lower cost regulatory alternative and made available to the public, or within 20 days after the date of publication of the notice required by s. 120.54(3)(d). The petition shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority. The petitioner has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of
delegated legislative authority as to the objections raised.[21] Any person who is substantially affected by a change in the proposed rule may seek a determination of the validity of such change. Any person not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the rule and is not limited to challenging the change to the proposed rule.
The administrative law judge may declare the proposed rule wholly or partly invalid. Unless the decision of the administrative law judge is reversed on appeal, the proposed rule or provision of a proposed rule declared invalid shall not be adopted. After a petition for administrative determination has been filed, the agency may proceed with all other steps in the rulemaking process, including the holding of a factfinding hearing. In the event part of a proposed rule is declared invalid, the adopting agency may, in its sole discretion, withdraw the proposed rule in its entirety. The agency whose proposed rule has been declared invalid in whole or part shall give notice of the decision in the first available issue of the Florida Administrative Weekly.
When any substantially affected person seeks determination of the invalidity of a proposed rule pursuant to this section, the proposed rule is not presumed to be valid or invalid.
* * *
A proposed rule may be challenged pursuant to Section 120.56, Florida Statutes, only on the ground that it is an "invalid exercise of delegated legislative authority." An administrative law judge is without authority to declare a
proposed rule invalid on any other ground. To do so would be an impermissible extension of the judge's authority beyond the boundaries established by the Legislature. See Schiffman v.
Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An administrative agency has only the authority that the legislature has conferred it by statute."); Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1st DCA 1986)("Administrative agencies have only the powers delegated by statute."); and Fiat Motors of North America, Inc. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978)("Administrative agencies are creatures of statute and have only such powers as statutes confer."). For example, an administrative law judge may not invalidate a proposed rule simply because, in the judge's opinion, it does not represent the wisest or best policy choice. See Board of Trustees of Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue before the hearing officer in this [rule challenge] case was not whether the Trustees made the best choice in limiting the lengths of docks within the preserve, or whether their choice is one that the appellee finds desirable for his particular location."); and Dravo Basic Materials Co., Inc. v. State, Department of Transportation, 602 So. 2d 632, 634 (Fla. 2d DCA 1992)("Dravo's frustration is understandable. It may well be that it could provide a quality
product to the point of use under some other adequate and economical test procedures. It may well be that this additional competition would help reduce the cost of highways in Florida.
It is not our task, however, to write the best rule for DOT. That was not the task of the hearing officer."); cf. Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)("An interpretation of a statutory term cannot be based on this Court's own view of the best policy.").
The phrase "invalid exercise of delegated legislative authority," as used in Section 120.56, Florida Statutes, is defined in Section 120.52(8), Florida Statutes, which provides, in pertinent part, as follows:
"Invalid exercise of delegated legislative authority" means action that goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; [22]
* * *
(e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by
logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
* * *
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.[23]
Subsections (8)(b) and (c) of Section 120.52, Florida Statutes, although they are "interrelated," "address two different problems" or "issues." Board of Trustees of Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 701 (Fla. 1st DCA 2001); and Consolidated Tomoka Land Co., 717 So. 2d at 81.
Section 120.52(8)(b), Florida Statutes, "pertains to the adequacy of the grant of rulemaking authority," including any statutory qualifications upon the exercise of such authority. Day Cruise Association, 794 So. 2d at 701;
Department of Business and Professional Regulation v. Calder Race Course, Inc., 724 So. 2d 100, 104 (Fla. 1st DCA 1998); and Consolidated Tomoka Land Co., 717 So. 2d at 81. "Rulemaking authority," as that term is used in Section 120.52(8)(b), "means statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term 'rule.'"
§ 120.52(17), Fla. Stat. Whether an agency has been delegated the requisite "rulemaking authority" is an "issue [that] will rarely be disputed since most agencies have been granted general rulemaking powers." Home Delivery Incontinent Supplies Co., Inc., v. Agency for Health Care Administration, No. 07-4167RX, 2008 Fla. Div. Adm. Hear. LEXIS 205 *27 (Fla. DOAH April 18, 2008)(Final Order); see also Day Cruise Association, 794 So. 2d at 702 ("Under the statutory scheme, a grant of power to adopt rules is certainly required, but normally should be of little interest. Almost all agencies have a general grant--usually found in the first part of their enabling statute--which basically states that the agency 'may adopt rules necessary to carry out the provisions of this chapter.'").
"Under [S]ection 120.52(8)(c), [Florida Statutes], the test is whether a (proposed) rule gives effect to a 'specific law to be implemented,' and whether the (proposed) rule implements or interprets 'specific powers and duties.'"
Association of Florida Community. Developers v. Department of Environmental Protection, 943 So. 2d 989, 992 (Fla. 1st DCA 2006)(quoting from Day Cruise Association, 794 So. 2d at 704). The "law implemented," as that term is used in Section 120.52(8)(c), "means the language of the enabling statute being carried out or interpreted by an agency through rulemaking."
§ 120.52(9), Fla. Stat. "Logic dictates that the closer the [proposed] rule tracks the [enabling] statute, the less likely it modifies or contravenes the statute. The language need not be identical, however, as there would be no need for the rule." Sierra Club v. St. Johns River Water Management District, 816 So. 2d 687, 692 (Fla. 5th DCA 2002). "Although it is not necessary . . . that the particular enabling statute contain all the particulars (such details being the stuff of rules), it is necessary that the enabling statute grant the specific power or duty that the agency claims to be implementing." Home Delivery Incontinent Supplies, 2008 Fla. Div. Adm. Hear. LEXIS 205 *22-
In determining whether the enabling statute "evinces a legislative intent to grant the agency the specific power or specific duty behind the subject rule[,] . . . the specificity of the enabling statute's terms is not the primary consideration. Specificity is nevertheless a relevant factor, however, inasmuch as a relative lack of specificity tends to obscure legislative intent, whereas relative precision in
legislative draftsmanship tends to reveal such intent." Id. at
*18.
Subsections (8)(b) and (c) of Section 120.52, Florida Statutes, must be read in pari materia with the "closing paragraph of the statute," also known as the "flush left paragraph,"24 which "was intended to restrict agency rulemaking." Golden West Financial Corporation v. Department of Revenue, 975 So. 2d 567, 571 (Fla. 1st DCA 2008); see also Home Delivery Incontinent Supplies, 2008 Fla. Div. Adm. Hear. LEXIS 205 *36 ("[T]he flush left paragraph, in its present form, restricts rulemaking authority to: (a) specific (or explicit) powers and duties (b) whose distinguishing characteristics (i.e., the features that make the power specific and not merely categorical) (c) are established ("identified"), that is, actually present ("contained"), in the enabling statute.").25
If a proposed rule is "justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the [rule] is neither arbitrary nor capricious," within the meaning of Section 120.52(8)(e), Florida Statutes. Dravo Basic Materials Company,
Inc., v. State, Department of Transportation, 602 So. 2d at 634
n.3. Action taken by an agency that the Legislature has specifically authorized the agency to take is neither arbitrary nor capricious. See Florida Manufactured Housing Association,
Inc., v. Department of Revenue, 642 So. 2d 626, 627 (Fla. 1st DCA 1994)(proposed rules that "add nothing whatsoever to the requirements of the law, but instead fit squarely within [statute implemented]" not arbitrary or capricious).
In seeking to ascertain whether a challenged rule is an "invalid exercise of delegated legislative authority," as defined by Section 120.52(8), Florida Statutes, it is necessary for the administrative law judge to attempt to understand the meaning of the statutory provisions relied upon by the agency (as "rulemaking authority" and the "law implemented"). If these statutory provisions are among those that the agency is specifically responsible for administering, the agency's construction of these provisions (as incorporated in the rule) "should be upheld when it is within the range of permissible interpretations."26 Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 658, 660 (Fla. 1st DCA 2001)27; see also Gulfstream Park Racing Association v. Tampa Bay Downs, 948 So. 2d 599, 603-04 (Fla. 2006)("As the federal district court correctly reasoned, '[i]n Florida, courts give great deference to the interpretation of a statute by an administrative agency charged with the statute's enforcement.'"); and Imhotep-Nguzo Saba Charter School v. Department of Education, 947 So. 2d 1279, 1285 (Fla. 4th DCA 2007)("An agency's interpretation of a statute that it is
charged with enforcing is entitled to great deference and will be approved on appeal unless it is clearly erroneous."). The agency's construction need not be the sole possible construction, or even the most desirable one, but must only be "within the range of possible and reasonable interpretations."28 Florida Department of Education v. Cooper, 858 So. 2d 394, 396 (Fla. 1st DCA 2003); see also GTC, Inc. v. Edgar, 967 So. 2d 781, 787 (Fla. 2007)("Because this is a reasonable construction, we apply the rule of statutory interpretation that requires us to defer to the PSC's expertise and its interpretation of the provision."); and Republic Media v. Department of Transportation, 714 So. 2d 1203, 1205 (Fla. DCA 1998)("A reviewing court must defer to any statutory interpretation by an agency which is within the range of possible and reasonable.")29
"Legislative intent is the 'polestar' in interpretation of statutory provisions." Blinn v. Florida Department of Transportation, 781 So. 2d 1103, 1107 (Fla. 1st DCA 2000); see also Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003)("Our purpose in construing a statutory provision is to give effect to legislative intent. Legislative intent is the polestar that guides a court's statutory construction analysis.").
"Legislative intent must be derived primarily from the words expressed in the statute. If the language of the statute is clear and unambiguous," these words must be given effect. Florida Department of Revenue v. Florida Municipal Power Agency, 789 So. 2d 320, 323 (Fla. 2001). Accordingly, an agency's construction of a statute that is contrary to the plain legislative intent is not entitled to any deference and must be rejected. See Office of Fire Code Official of Collier County Fire Control v. Florida Department of Financial Services, 869 So. 2d 1233, 1237 (Fla. 2d DCA 2004)("[T]he deferential standard of review] does not require that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency."); and PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459, 460 (Fla. 2d DCA 1989)("[J]udicial adherence to the agency's view is not demanded [however] when it is contrary to the statute's plain meaning.").
In attempting to ascertain the meaning of statutory language (and thereby legislative intent), the administrative law judge must examine the entire statute, along with related provisions. See Horowitz v. Plantation General Hospital Limited Partnership, 959 So. 2d 176, 183 (Fla. 2007)("[W]e conclude that there is no indication in this single statement of legislative intent to impose civil liability on hospitals. This
determination is reinforced by reading this statutory provision in conjunction with other subsections of section 458.320, and within the greater context of chapter 458 and related statutory provisions discussing hospital responsibilities."); Woodham v.
Blue Cross and Blue Shield of Florida, 829 So. 2d 891, 898 (Fla. 2002)("[R]elated statutory provisions must be read together to achieve a consistent whole."); Dufresne v. State, 826 So. 2d 272, 275 (Fla. 2002)("I]n cases where the exact meaning of a term was not defined in a statute itself, we have ascertained its meaning by reference to other statutory provisions . . . .
Further, 'while the legislature may direct that statutes be read in pari materia, the absence of such a directive does not bar construing two statutes in that manner.'"); Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla.
1992)("It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.")(citation omitted); and Florida Jai Alai, Inc., v. Lake Howell Water and Reclamation District, 274 So. 2d 522, 524 (Fla. 1973)("Legislative intent should be gathered from consideration of the statute as a whole rather than from any one part thereof."). Furthermore, the administrative law judge must be guided by common sense. See Florida Department of Business
and Professional Regulation v. Investment Corporation of Palm Beach, 747 So. 2d 374, 385 n.10 (Fla. 1999)("In recently rejecting a similarly tortured statutory construction, the Fourth District sagely advised: 'Laws should be enforced with common sense and applied without losing sight of the legislative purpose behind their enactment. To do otherwise is to generate disrespect for the law by creating a morass of technical regulations with no connection to human experience.'"); Perez v. Perez, 769 So. 2d 389, 393, n.7 (Fla. 3d DCA 1999)("Our
interpretation is consistent . . . with common sense."); Dorsey v. State, 402 So. 2d 1178, 1183 (Fla. 1981)("The definition of wire communications contained in section 934.02 must be interpreted in a common sense and reasonable manner."); and Pensacola Associates v. Biggs Sporting Goods Co., 353 So. 2d 944, 947 (Fla. 1st DCA 1978)("Statutes are interpreted in the light of reason and common sense ").
The administrative law judge must not only construe the statutory provision(s) relied upon by the agency as authority for the rule provision under attack, but must also determine the meaning of the challenged provision(s) of the proposed rule as well. In doing so, the administrative law judge is obligated to accept the agency's interpretation of its own rule30 unless the agency's interpretation is clearly erroneous or unreasonable, given the language contained in the
rule. See Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Citizens of State of Florida v. Wilson, 568 So. 2d 1267, 1271 (Fla. 1990); Miles v. Florida A and M University, 813 So. 2d 242, 245 (Fla. 1st DCA 2002); and Langston v. Jamerson, 653 So.
2d 489, 490 (Fla. 1st DCA 1995).
In the instant case, Petitioners are challenging the Amended Proposed Rule on the ground that it is an "invalid exercise of delegated legislative authority," as described in Subsections (8)(b), (c), and (e) of Section 120.52, Florida Statutes. They argue that the Amended Proposed Rule "usurps" the authority that the Legislature, through the passage of Section 479.156, Florida Statutes, has given local governments to "establish and enforce regulations for [controlled] areas [within their jurisdictional boundaries] that, at a minimum, set forth criteria governing the size, lighting, and spacing of wall murals consistent with the intent of the Highway Beautification Act of 1965 and with customary use." According to Petitioners, Section 479.156 "authorizes local governments, not [the Department] to establish local criteria and to determine what 'customary use' means," and "[i]t does not limit local governments by requiring that local governments obtain approval of their criteria from [the Department]; by imposing a requirement that 'customary use' be defined with reference to any date; or by requiring that such 'customary use' have been
'predominant or usual' on any particular date." Additionally, Petitioners contend that the definition of "customary use" is "'arbitrary or capricious' because there is no logical reason for local governments that currently adopt wall mural regulations (as a result of the enactment of Section 479.156 in 2007) to define criteria concerning size, lighting, and spacing on the basis of the predominant and usual practice that existed in 1972, over thirty years ago."
As a threshold matter, in assessing the merits of Petitioners' challenge, it is necessary to examine the extent of the Department's "rulemaking authority," as that term is used in Section 120.52(8)(b), Florida Statutes, and defined in Section 120.52(17), Florida Statutes. See Food Safety Training, Inc. v. Department of Business and Professional Regulation, Division of Hotels and Restaurants, No. 01-3753RP, 2002 Fla. Div. Adm. Hear. LEXIS 209 *26-28 (Fla. DOAH February 14, 2002)(Final Order)("The threshold question, of course, is whether the agency has been delegated the power to make rules."). The two statutory provisions cited by the Department as "specific authority" (or "rulemaking authority") for the Amended Proposed Rule, Sections 334.044(2) and 479.02(7), Florida Statutes, grant the Department broad and sweeping authority to adopt rules. The former authorizes the Department "[t]o adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of law
conferring duties upon it," while the latter empowers the Department to "[a]dopt such rules as it deems necessary or proper for the administration of this chapter [Chapter 479, Florida Statutes] "
As the "flush left paragraph" instructs, however, "[a] grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule." There must also be a specific power or duty delegated to the agency by the Legislature that the rule implements or interprets. Moreover, that specific power or duty must be contained in the enabling statute(s) cited by the agency as the "law implemented."
The first step in determining whether these additional requirements have been met is to ascertain, by examining the proposed rule in question, what specific powers or duties the agency is attempting to exercise.
In the case of the Amended Proposed Rule, the Department is seeking to exercise what it believes is its power to approve, either directly or as a result of its acceptance of a local government's control over signage in the area in question, the placement of wall murals in "controlled areas" of local jurisdictions.
The Amended Proposed Rule describes how "Department approval of wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid
primary highway may be obtained." It provides that such approval "may be obtained either by compliance with local sign control in municipalities or counties exercising such control pursuant to subsection (2) of this rule or by direct approval as set forth in subsection (3) of this rule."
Subsection (2) of the Amended Proposed Rule explains that a local governemnt may "exercise local sign control over wall murals" by demonstrating to the satisfaction of the Department that it has established and will enforce regulations regarding the "size, lighting, and spacing of signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use."31 It then goes on to define "customary use" as "the predominant, usual practice with regard to size, lighting, and spacing of signs existing in the municipality or county as of the date of the Federal/State Agreement, being January 27, 1972."
"[D]irect approval" as described in Subsection (3) of the Amended Proposed Rule is required where a local government "permit[s] and regulate[s] wall murals," but its exercise of "local control" has not been "accept[ed]" by the Department because the local government has not made the showing required by Subsection (2) of the rule. To obtain the Department's
"direct approval," a wall mural must meet the statewide spacing, size, and lighting criteria set forth in Subsection III.B. of the 1972 Agreement.
It is the position of the Department that the Amended Proposed Rule carries out the provisions of Section 479.156, Florida Statutes, and does so in a manner that is consistent with the State of Florida's obligation under the 1972 Agreement to make provision for "effective control" of outdoor advertising in areas within the scope of the agreement so that the State will not suffer a loss of federal road construction funding pursuant to 23 U.S.C. § 131(b).
Having identified what specific power the Amended Proposed Rule purports to implement (to wit: approval of the placement of wall murals in "controlled areas," either directly or by "acceptance" of a local government's control of outdoor advertising), the next step is to examine the enabling statutes cited by the Department (as the "law implemented") to determine whether this specific power is among those delegated to the Department by the Legislature.
These cited statutes are Sections 339.05, 479.02, 479.07, 479.15, and 479.156, Florida Statutes, which have been, in pertinent part, set out above.
At the center of the instant controversy is the parties' disagreement over the meaning of the provisions of the
latter statute, Section 479.156, Florida Statutes, the lone statute cited by the Department that deals exclusively with wall murals.
Petitioners contend that the "requirements that Section 479.156 [Florida Statutes] imposes on local wall mural regulation are self-executing," and that the statute "confers no authority for any action by the Department." They acknowledge that the statute contains language providing that "[a] wall mural that is subject to municipal or county regulation and the Highway Beautification Act of 1965 must be approved by the Department of Transportation and the Federal Highway Administration," but they argue that this language merely "dictates" that the Department "must," without exception, "approve wall murals subject to local regulation" and that therefore approval by the Department is a mere ministerial act not involving the exercise of any discretion or judgment. The Department disagrees that the Legislature, in Section 479.156, has not granted it meaningful authority to determine whether or not wall murals "subject to municipal or county regulation and the Highway Beautification Act of 1965" should be approved. Noting that the statute provides that wall murals "must be approved by," not only itself, but the FHWA as well, the Department reasons that, "[t]o read 'must' as used in the statute to mean that approval is automatic, is illogical because
the Florida legislature cannot dictate what the Federal Highway Administration must approve." The argument is a persuasive one. The undersigned agrees that Petitioners' interpretation is strained and he therefore rejects that interpretation in favor of the Department's, which he finds to be more reasonable. What the language in question makes mandatory is the obtaining of the Department's and FHWA's approval. It does not impose upon either the Department or FHWA the nondiscretionary obligation to grant such approval, regardless of circumstances. See Support Terminals Operating Partnership, L.P. v. Board of Trustees of the Internal Improvement Trust Fund, Nos. 98-1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, 1998 Fla. ENV LEXIS 333 *37 (Fla. DOAH
August 11,1998)(Final Order)("[I]nherent in the power to issue disclaimers is the power to deny, or not disclaim, sovereign submerged lands."); State ex rel. Board of Education of Dayton v. State Department of Education, 67 Ohio St. 2d 126, 128 (Ohio 1981)("It is apparent, however, that the power to approve generally includes as well the power to disapprove."); and Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 321 (Mo. 1978)("The power to 'approve' includes the power to 'disapprove.'").
Petitioners take the further position that, not only does Section 479.156, Florida Statutes, not grant the Department "authority for any action" (a view the undersigned does not
share, as noted above), it effectively takes away authority the Department would otherwise have under other provisions of Chapter 479, Florida Statutes. In support of their divestiture argument, they point to the first sentence of Section 479.156, which provides that, "[n]otwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government." They claim that the sentence's "notwithstanding any other provision of this chapter" language means that other provisions of Chapter
479 that address signs in general, but not wall murals specifically, cannot "serve as authority for implementation" of a Department rule which "purports to govern" wall murals. The Department takes issue with this interpretation, contending that, while the first sentence of Section 479.156 may give local governments the authority to regulate wall mural signs within their jurisdictional boundaries, it does not divest the Department of the authority granted it elsewhere in Chapter 479 to regulate these signs to the extent that they are located in "controlled areas." The undersigned again agrees with the Department. There is nothing irreconcilably inconsistent with local governments' having the authority to "permit and regulate wall murals within areas designated by such government[s]" and the Department's overseeing the local governments' exercise of
that authority in those portions of these areas that are subject to the Beautification Act.
The Department is granted such regulatory oversight authority by Section 479.02(1), Florida Statutes (another of the statutory provisions cited as the "law implemented" by the Amended Proposed Rule). Among other things, this statutory provision incorporates by reference the 1972 Agreement and delegates to the Department the authority to "[a]dminister and enforce" its provisions. This authority includes the power to determine whether a local government has "effective control" of outdoor advertising signs (including wall murals) in its "zoned commercial and industrial areas," as described in the 1972 Agreement. To make this determination, the Department must ascertain whether, in accordance with Subsection III.A. of the agreement, the local government has "established within such areas [local] regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use." Only if the Department (acting on behalf of the State, pursuant to the authority granted to it pursuant to Section 479.02(1)) finds in the affirmative and so "notif[ies] the [FHWA] Administrator" will the local government, under the terms of the 1972 Agreement, be able to exercise sign control in its "zoned commercial and industrial areas." The
agreement does not allow local governments to unilaterally determine whether they have and enforce regulations meeting the agreement's requirements for local sign control.
By ceding sign control to a local government that has not been found by the Department to have established and enforced such regulations, the State (as noted in the fourth "WHEREAS" clause of the 1972 Agreement) runs the risk of losing federal road construction funding pursuant to 23 U.S.C. § 131(b). This is an outcome clearly not desired by the Legislature (which has directed the Department, in Section 339.05, Florida Statutes, yet another of the statutes cited as the "law implemented" by the Amended Proposed Rule, to "do all things necessary to cooperate with the United States Government" to facilitate the "construction of roads" in Florida). Cf. Chancellor Media Whiteco Outdoor Corporation v. Department of Transportation, 796 So. 2d 547, 549-550 (Fla. 1st DCA 2001)("Florida has exerted considerable effort over the last 30 years in complying with the Highway Beautification Act in order to protect its full share of federal highway funds. The
federal-state agreement has been executed, legislation required for compliance has been enacted, and comprehensive state administrative rules have been enacted. The legislature surely did not intend to cast aside these years of effort and imperil
the state's share of future federal highway funds simply to allow erection of some nonconforming highway billboards.").
It is apparent from a reading of Section 479.156, Florida Statutes, in its entirety (not just its first sentence) that, in enacting the statute, the Legislature did not intend to assume this risk, but rather was determined that wall mural regulation in Florida adhere to the terms of the 1972 Agreement. For instance, the Legislature imported into the second sentence of the statute the requirements that local sign regulations must meet pursuant to Subsection III.A. of the agreement in order for there to be "effective control." In so doing, the Legislature used language identical to the key language found in the agreement, to wit: "size, lighting, and spacing . . . consistent with the intent of the Highway Beautification Act of 1965 and with customary use." In the following sentence of the statute, the Legislature included a provision that wall murals that are subject to local government regulation and the Beautification Act "may not violate" the 1972 Agreement, leaving no doubt that it was not the Legislature's intent that Section
479.156 override or supersede the provisions of the agreement (which, as noted above, the Department has the responsibility to "[a]dminister and enforce" pursuant to Section 479.02(1), Florida Statutes).
Consistent with Section 479.02(1)'s delegating to the Department the responsibility of overseeing compliance with the 1972 Agreement, Section 479.156, Florida Statutes, provides for Department approval of wall murals that are subject to local government regulation and the Beautification Act. To obtain such approval under Section 479.156, a wall mural must meet the standards set forth in the statute, including the requirement that it "not violate the agreement between the state and the United States Department of Transportation." The approval process therefore necessarily requires that the Department determine whether the wall mural under review complies with the agreement. A wall mural that meets local "size, lighting, and spacing" criteria, but not the statewide criteria set forth in Subsection III.B. of the agreement, does not comply with the agreement if the Department fails to find that those local criteria are "consistent with the intent of the Highway Beautification Act of 1965 and with customary use," as those terms are used in the agreement (and in Section 479.156, into which they have been imported). Accordingly, the Department's authority under Section 479.156 to approve locally permitted and regulated wall murals includes the power (described in Subsection (2) of the Amended Proposed Rule) to determine whether the local regulations under which they are permitted and regulated contain "size, lighting, and spacing" criteria that
are "consistent with the intent of the Highway Beautification Act of 1965 and with customary use," as required by the 1972 Agreement.
Because the exercise of its authority to make such a determination, of necessity, involves application of the ambiguous term "customary use," as used in Section 479.156, Florida Statutes, as well as in the 1972 Agreement,32 the Department is empowered, by the rulemaking authority it has been granted by the Legislature, to adopt a rule defining that term, as it has done in the Amended Proposed Rule. See Board of Podiatric Medicine, 779 So. 2d at 659 ("The Board's rulemaking authority under section 461.005 encompasses the implementation of the provisions by which chapter 461 confers duties upon the Board. Those duties include matters which require the Board's assessment as to the lawful scope of podiatric practice. The Board's proposed rule is thus within the section 461.005 grant of rulemaking authority, insofar as the rule provides a permissible explication and definition of the statutory terminology used in section 461.003 to describe the practice of podiatric medicine.")(citations omitted); cf. Chevron, U.S.A.,
Inc. v. NRDC, Inc., 467 U.S. 837, 843-844 (1984)("If Congress
has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation."); Mahon v.
United States Department of Agriculture, 485 F.3d 1247, 1258 (11th Cir. 2007)("After reviewing the statute and its legislative history, it is apparent that Congress failed to provide any guidance with respect to the meaning of the term 'commercial sale,' therefore, Congress has implicitly left a gap in the statutory scheme that must be filled by the USDA."); and Russell v. North Broward Hospital District, 346 F.3d 1335, 1345 (11th Cir. 2003)("The statute does not speak precisely to the issue because it does not tell us exactly which medical or health conditions are serious enough to qualify for FMLA leave protection. What Congress did was sketch the outlines of the picture and leave to the Department of Labor the task of drawing in the finer lines and coloring the spaces. That is not unusual. Congress often confines itself to the big picture and leaves the detail work to administrative agencies, subject of course to congressional oversight. Acting pursuant to the authority Congress gave it, the Department of Labor has defined the otherwise undefined statutory term 'serious health condition' when it involves 'continuing treatment.'"). Defining "customary use" by rule is consistent with the Legislature's "selection of rulemaking over adjudication as the primary means of policy development." Schluter, 705 So. 2d at 86; see also Reiff v. Northeast Florida State Hospital, 710 So. 2d 1030, 1033 (Fla. 1st DCA 1998)("[R]ulemaking is the [legislatively]
preferred means of issuing agency statements. . . ."). By exercising its rulemaking authority to define what constitutes "customary use," the Department has "provide[d] fair notice to affected persons" of what definitional standard it will apply in assessing whether local wall mural regulations meet the requirements of Section 479.156, Florida Statutes, and the 1972 Agreement, thereby "clos[ing] the gap between what [the Department] and its staff know about [the Department's] law and policy and what an outsider can know." Peoples Bank v. State, 395 So. 2d 521, 525 n.5 (Fla. 1981).
Moreover, the definition selected by the Department is neither arbitrary nor capricious, but rather "within the range of permissible interpretations." Inasmuch as the term comes from a document, the 1972 Agreement, that was executed on January 27, 1972, it is not unreasonable or illogical to construe the term as meaning a "use" (or practice) that was "customary" (that is, predominant and usual) as of the date of the agreement, January 27, 1972. See Holmes v. Kilgore, 103 So. 825, 827 (Fla. 1925)("It is a well established canon or rule of construction that in order to arrive at the intention of the parties the contract must be read in the light of the circumstances under which it was executed."); and Nebraska Public Power District v. MidAmerican Energy Co., 234 F.3d 1032, 1044 (8th Cir. 2000)("Nebraska law requires a contract to be
read to give meaning to the intent of the parties at the time that the contract was made. This rule avoids confusion resulting from changes in language and usage over time that might affect a contract's plain contemporary meaning. In employing the modern definition of decommissioning costs, the court apparently overlooked this principle and failed to give the contract its meaning at the time it was signed. This rule renders evidence regarding practices post-dating the contract's signing inapposite.")(citation omitted). Such a construction is particularly reasonable given that the FHWA, the other party to the 1972 Agreement, has indicated that this is what the term, as used in the agreement, was intended to mean. See Welsh v.
Carroll, 378 So. 2d 1255, 1257 (Fla. 3d DCA 1979)("It is a recognized principle of law that the parties' interpretation of their own contract will be followed unless it is contrary to law."); and Natural Kitchen, Inc. v. American Transworld Corp.,
449 So. 2d 855, 859 (Fla. 2d DCA 1984)("Where a contract is unclear but the parties have placed a reasonable construction upon it, the court should adopt that construction.").
In summary, the Amended Proposed Rule is supported by an adequate grant of properly cited "rulemaking authority"; it implements or interprets specific power granted to the Department by the Legislature through what the Department, in the rulemaking process, has identified as the "law implemented";
and it does so in a manner that neither enlarges, modifies, nor contravenes the "law implemented," and that is neither arbitrary nor capricious, in the ways claimed by Petitioners. Such being the case, it cannot be said that the Amended Proposed Rule is an "invalid exercise of delegated legislative authority," within the meaning of either Subsection (8)(b), (c),or (e) of Section 120.52, Florida Statutes, as alleged by Petitioners.
In view of the foregoing, Petitioners' amended petitions are hereby DISMISSED.
Petitioners' not having prevailed in their challenge to the validity of the Amended Proposed Rule, they are not entitled to an award of attorney's fees pursuant to Section 120.595(2), Florida Statutes,"33 and their request for same is hereby DENIED.
DONE AND ORDERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida.
S
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 9th day of February, 2009.
ENDNOTES
1/ Section 479.105(1)(e), Florida Statutes, provides as follows:
However, if the sign owner demonstrates to the department that:
The sign has been unpermitted, structurally unchanged, and continuously maintained at the same location for a period of 7 years or more;
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;
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
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.
2/ Section 479.16, Florida Statutes, provides as follows: Signs for which permits are not required
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):
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:
Messages which specifically reference any commercial enterprise.
Messages which reference a commercial sponsor of any event.
Personal messages.
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.
Signs erected, used, or maintained on a farm by the owner or lessee of such farm and relating solely to farm produce,
merchandise, service, or entertainment sold, produced, manufactured, or furnished on such farm.
Signs posted or displayed on real property by the owner or by the authority of the owner, stating that the real property is for sale or rent. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.
Official notices or advertisements posted or displayed on private property by or under the direction of any public or court officer in the performance of her or his official or directed duties, or by trustees under deeds of trust or deeds of assignment or other similar instruments.
Danger or precautionary signs relating to the premises on which they are located; forest fire warning signs erected under the authority of the Division of Forestry of the Department of Agriculture and Consumer Services; and signs, notices, or symbols erected by the United States Government under the direction of the United States Forestry Service.
Notices of any railroad, bridge, ferry, or other transportation or transmission company necessary for the direction or safety of the public.
Signs, notices, or symbols for the information of aviators as to location, directions, and landings and conditions affecting safety in aviation erected or authorized by the department.
Signs or notices erected or maintained upon property stating only the name of the owner, lessee, or occupant of the premises and not exceeding 8 square feet in area.
Historical markers erected by duly constituted and authorized public authorities.
Official traffic control signs and markers erected, caused to be erected, or approved by the department.
Signs erected upon property warning the public against hunting and fishing or trespassing thereon.
Signs not in excess of 8 square feet that are owned by and relate to the facilities and activities of churches, civic organizations, fraternal organizations, charitable organizations, or units or agencies of government.
Except that signs placed on benches, transit shelters, and waste receptacles as provided for in s. 337.408 are exempt from all provisions of this chapter.
Signs relating exclusively to political campaigns.
Signs not in excess of 16 square feet placed at a road junction with the State Highway System denoting only the distance or direction of a residence or farm operation, or, in a rural area where a hardship is created because a small business is not visible from the road junction with the State Highway System, one sign not in excess of 16 square feet, denoting only the name of the business and the distance and direction to the business. The small-business-sign provision of this subsection does not apply to charter counties and may not be implemented if the Federal Government notifies the department that implementation will adversely affect the allocation of federal funds to the department.
3/ It has been said that this "statute contemplates that no zoning ordinance may stand that is less stringent than Chapter 479," but that it also "clearly contemplates that municipalities may enact stricter rules than those imposed by the state
law . . . ." Lamar-Orlando Outdoor Advertising v. City of Ormond Beach, 415 So. 2d 1312, 1320-1321 (Fla. 5th DCA 1982).
4/ The 2008 Legislature passed revisions to the statute, but the legislation was vetoed by the Governor.
5/ The first sentence of Section 479.156, Florida Statutes, makes clear that what the Legislature said in Section 479.155, Florida Statutes, regarding the authority of local governments applies to the regulation of wall murals.
6/ Prior to the enactment of Section 479.01(27), Florida Statutes, Chapter 479, Florida Statutes, contained no provision specifying that a "wall mural [is] a sign" (although the Department had taken the position that the term "sign," as used in Chapter 479, was defined therein broadly enough to include wall murals). See, e.g., Big Times Productions v. Department of Transportation, No. 06-3032, 2007 Fla. Div. Adm. Hear. LEXIS 129 (Fla. DOAH March 2, 2007)(Recommended Order).
7/ The authority granted by 23 U.S.C. § 131(b) to withhold funding from noncompliant states has previously been exercised by the Secretary of the federal Department of Transportation. See, e.g., South Dakota v. Volpe, 353 F. Supp. 335, 337 (D. S.D. 1973)(Secretary withheld from the State of South Dakota
"Federal-Aid Highway Funds for fiscal year 1973 in the amount of
$3,361,546.60," which "sum represent[ed] a ten per cent reduction assessed for failure to comply with the Highway Beautification Act of 1965 . . . as authorized by subsection (b) of that Act."). Were the State of Florida to have "a ten per cent reduction assessed [against it] for failure to comply with the Highway Beautification Act of 1965 . . . as authorized by subsection (b) of that Act," the loss to the state, "at current funding levels, would amount to about $160 million. "
8/ "[S]igns erected under § 750.704(a)(4)" are "[s]igns within 660 feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and Federal-aid Primary Systems which are zoned industrial or commercial under the authority of State law."
9/ "[S]igns erected under § 750.704(a)(5)" are "[s]igns within 660 feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and Federal-aid Primary Systems which are unzoned commercial or industrial areas, which areas are determined by agreement between the State and the Secretary [of the federal Department of Transportation]."
10/ As permitted by 23 C.F.R. § 750.706, the spacing and size requirements set forth in Section 479.07(9)(a) and (b), Florida Statutes, are "more restrictive" than those "presently contained in [the State of Florida's] agreement[] with the Secretary [of the federal Department of Transportation]."
11/ While they are not specifically mentioned anywhere in the 1972 Agreement, wall murals, as defined in Section 479.01(27), Florida Statutes, fall within the agreement's definition of the term "Sign."
12/ Accordingly, the statewide size, lighting, and spacing criteria set forth in Subsection III.B. of the agreement have been "frozen as of 1972," to use language employed by Fuel Miami in paragraph 32 of its Proposed Recommended Order, wherein it argues that "[t]here is no logical support for the Department's position that customary use in a locale is frozen as of 1972, and, in fact that determination is illogical "
13/ The effect of this language in Section 479.02(1), Florida Statutes, directing the Department to "[a]dminister and enforce" the 1972 Agreement is to make the agreement a part of Chapter 479, Florida Statutes.
14/ The size and spacing criteria prescribed in Subsections (3)(d)(2) through (6) of the amended version of proposed Florida Administrative Code Rule 14-10.025 mirror those set forth in Subsection III.B. of the 1972 Agreement.
15/ According to the testimony of John Garner, the Director of the Department's Office of Right-of-Way, which testimony the undersigned has credited, the Department had "had an understanding of what FHWA's interpretation was for many years." Neither Ms. Gramatins' e-mail nor Mr. Solomon's memorandum did anything to "change [that] understanding."
16/ The undersigned does not share the view, expressed in Fuel Miami's Proposed Final Order, that Ms. Gramatins "concede[d] that [her] opinion [was] contrary to the plain language of the
Act" when she observed that "[a] casual reading may indicate that any time a bona fide State, county or local jurisdiction makes a determination of customary use, such determination will be accepted in lieu of controls specified in the agreement." It appears to the undersigned that, in making this observation,
Ms. Gramatins was merely pointing out that a "casual" (as opposed to a careful) reading of the provisions she cited might lead to an erroneous interpretation of their true meaning. See, e.g., Long v. Anderson, 37 So. 216, 218 (Fla. 1904)("A casual reading of the third headnote in the case of The State of Florida et al. v. the Florida Central R.R. Co. et al., 15 Fla.
690, would seem to require that this question be answered in the affirmative, but a more careful reading thereof, as well as a reference to the opinion, will lead to a different conclusion.").
17/ As Ms. Gramatins had correctly noted in the first sentence of this paragraph, the year of the agreement's execution was actually 1972.
18/ The undersigned, like Ms. Gramatins, does not read
23 U.S.C. § 131(d) as requiring acceptance of a local government's finding of "customary use" that is based on an erroneous interpretation of the term.
19/ It is the FHWA's responsibility, as the agency authorized to carry out the provisions of the Beautification Act, to engage in such statutory interpretation; and its "interpretation is entitled to [judicial] deference, as long as it is reasonable." American Library Association v. FCC, 406 F.3d 689, 699 (D.C. Cir. 2005).
20/ FHWA Administrator Peters' May 19, 2005, letter to Congresswoman Pryce and her September 2, 2003, letter to Congressman Sessions were received into evidence as Respondent's Exhibits 4 and 5. To the extent that these letters were offered merely to establish what Ms. Peters, as the head of the FHWA, had communicated to the letters' recipients, the letters do not constitute hearsay. See Seagrave v. State, 768 So. 2d 1121, 1122 (Fla. 1st DCA 2000)("When the statement is being offered for this purpose, it is not being offered to prove the truth of the matter, but simply that it was made. Therefore, it is not hearsay."); and Stendebach v. CPC International, Inc., 691 F.2d 735, 739 (5th Cir. 1982)("The documents were introduced to show the methodology employed by the committee in rating the
employees. They were not offered to prove the truth of but merely the fact of their contents. As such, the instruments are not hearsay.").
21/ The following explanation of the respective burdens shouldered by the parties in a challenge to a proposed rule was given in Southwest Florida Water Management District v.
Charlotte County, 774 So. 2d 903, 908, (Fla. 2d DCA 2001), citing St. Johns River Water Management District v. Consolidated Tomoka, 717 So. 2d 72, 76 (Fla. 1st DCA 1998): "'[n]othing in section 120.56(2) requires the agency to carry the burden of presenting evidence to disprove an objection alleged in a petition challenging a proposed rule.' Instead '[a] party challenging a proposed rule has the burden of establishing a factual basis for the objections to the rule, and then the agency has the ultimate burden of persuasion to show that the proposed rule is a valid exercise of delegated legislative authority.'"
22/ Section 120.54(3)(a)1., Florida Statutes, provides, in pertinent part, as follows:
Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency, upon approval of the agency head, shall give notice of its intended action, setting forth . . . a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made
specific. . . .
23/ The language contained in this concluding paragraph of the statute is also found in Section 120.536(1), Florida Statutes.
24/ See Day Cruise Association, 794 So. 2d at 698 n.1.
25/ While agencies may not engage in rulemaking that violates the restrictions imposed by the "flush left paragraph," neither may they avoid rulemaking when it is required pursuant to Section 120.54(1)(a), Florida Statutes, which provides as follows:
Rulemaking is not a matter of agency discretion. Each agency statement defined
as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.
Rulemaking shall be presumed feasible unless the agency proves that:
The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking;
Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or
Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that:
Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or
The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication to determine the substantial interests of a party based on individual circumstances.
This language clearly "restrict[s] agencies from establishing policy outside the confines of rulemaking . . . ." Department of Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 81, 86 (Fla. 1st DCA 1997).
26/ "Florida law is consistent with the general law on the subject of deference to an agency's interpretation of the statute it is charged with enforcing." Bolam v. Mobil Oil Corporation, 893 F.2d 311, 313 n.3 (11th Cir. 1990).
27/ The Board of Podiatric Medicine case also involved the challenge to a proposed rule governed by the provisions of Section 120.56, Florida Statutes, which provided then, as it does now, that "[t]he petitioner has the burden of going forward" and "[t]he agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised."
28/ Accordingly, to meet its burden in a proposed rule challenge proceeding of establishing the validity of its interpretation of a statute it has been delegated the responsibility of administering, the agency proposing the rule need only show that its interpretation is "within the range of possible and reasonable interpretations."
29/ In Republic Media, the court deferred to the Department's interpretation of language in Chapter 479, Florida Statutes.
30/ This interpretation is "binding on the agency." See Kearse v. Department of Health and Rehabilitative Services, 474 So. 2d 819, 820 (Fla. 1st DCA 1985); see also American Iron and Steel Institute v. E.P.A., 115 F.3d 979, 989 (D.C. Cir. 1997)("This is a permissible reading of the regulation, and we will hold the agency to it. So long as the agency adheres to this reading, the petitioners' challenge to these procedures is not ripe.
Should the agency ever adopt the interpretation the petitioners describe, this court will of course have jurisdiction to revisit the issue.").
31/ In conformance with the provisions of 23 C.F.R.
§ 750.706(c)(2), these local regulations may be either more restrictive or less restrictive than the statewide spacing, size, and lighting criteria set forth in Subsection III.B. of the 1972 Agreement, provided they are "consistent with the intent of the Highway Beautification Act of 1965 and with customary use."
32/ Neither the statute nor the agreement specifies the time as of which the existence of a "customary use" is to be determined.
33/ Section 120.595(2), Florida Statutes, provides that, "[i]f the appellate court or administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to
s. 120.56(2), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were
substantially justified or special circumstances exist which would make the award unjust."
COPIES FURNISHED:
Scott Boyd, Executive Director and General Counsel
Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Liz Cloud, Program Administrator Administrative Code
Department of State
R. A. Gray Building, Suite 101 Tallahassee, Florida 32399
Matthew H. Mandel, Esquire Laura K. Wendell, Esquire
Weiss, Serota, Helfman, Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Boulevard, Suite 700 Coral Gables, Florida 33134-6045
Donna Holshouser Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
Susan Schwartz, Esquire Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0450
James C. Myers, Clerk of Agency Proceedings
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0450
Alexis M. Yarbrough, General Counsel Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwanne Street
Tallahassee, Florida 32399-0450
Stephanie Kopelousos, Secretary Department of Transportation
Haydon Burns Building, Mail Station 57 605 Suwanne Street
Tallahassee, Florida 32399-0450
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 09, 2009 | DOAH Final Order | The proposed rule prescribing how approval of wall mural signs may be obtained from Respondent is not an invalid exercise of delegated legislative authority, within the meaning of either Subsection (8)(b), (c) or (e) of Section 120.52, Florida Statutes. |
FUEL MIAMI, LLC vs DEPARTMENT OF TRANSPORTATION, 08-001811RP (2008)
MALIBU LODGING INVESTMENTS, LLC vs DEPARTMENT OF TRANSPORTATION, 08-001811RP (2008)
DEPARTMENT OF TRANSPORTATION vs. TRACK SIDE AUTO, 08-001811RP (2008)
BIG TIME PRODUCTIONS vs DEPARTMENT OF TRANSPORTATION, 08-001811RP (2008)
DEPARTMENT OF TRANSPORTATION vs. MAXMEDIA, INC., 08-001811RP (2008)
