STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTH AMERICA MEDIA, INC.,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 12-1196

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RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was conducted in this case on June 28, 2012, in Orlando, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer R. Dixon, Esquire

Lowndes, Drosdick, Doster, Kantor and Reed, P.A.

215 North Eola Drive Orlando, Florida 32814

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue in this case, as set forth in a Notice of Violation initially issued by Respondent, Department of Transportation (the "Department"), on February 15, 2011, is

whether Petitioner, North American Media, Inc. ("NAM"), illegally erected and maintained a roadside billboard for which a permit was required, but not obtained.1/

PRELIMINARY STATEMENT

This case commenced with the posting of a Notice of Violation on an advertising sign on or about February 15, 2011. NAM timely filed a Petition for Administrative Hearing (which was subsequently amended) challenging the Department's Notice of Violation.

At the final hearing, NAM presented the testimony of David Cybulski, a videographer; and Bruno Gustinelli, NAM's president.

NAM's Exhibits 1 through 6, 9 through 15, 18 through 27, 29 and 30 were admitted into evidence. The Department called the following witnesses: James Anderson, an inspector; and Robert Jessee, outdoor advertising manager. The Department's Exhibits 1, 2, and 4 through 18 were admitted into evidence.

The parties advised that a transcript of the final hearing would be ordered. By rule, the parties have ten days from the date the transcript is filed to file proposed recommended orders. The Transcript was filed on August 3, 2012. The parties each timely filed a Proposed Recommended Order, and they were duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the State highway system, federal interstate, or federal-aid primary highway system. State Road (SR) 50, at all times material to this proceeding, has been a federal-aid primary highway. The area in question for purposes of this proceeding includes the intersection of SR 50 with SR 436, a non-regulated highway.

2. Besides the NAM sign (which will be discussed more fully below), there are three other outdoor advertising signs relevant to this case. The three signs are designated as: CH801 (constructed in 1979), located on the southbound lane of SR 436 just west of the NAM sign; CH258/259 (constructed in 2009), located just east of the NAM sign and in closer proximity to the westbound lane of SR 50; and CBS770/769 (constructed in 1980), located further west from the NAM sign on the westbound lane of SR 50.

3. The NAM sign is located on the southbound lane of

   
   

   SR 436, almost directly across from the CH801 sign. The sign is located within 660 feet of SR 50, but by its design, is meant to be visible from SR 436. The sign is a mono-pole sign with two digital sign facings in a "V" shape. The narrow portion of the "V" is pointed toward SR 436. The sign has an electronically

   
   

   changeable face; the face remains static for six seconds before changing. (A simple schematic of the subject area is appended to this Recommended Order to illustrate the proximity of the signs to each other and to the two state roads. The schematic was accepted into evidence as Petitioner's Exhibit 1.)

4. The NAM sign was constructed in late November 2010 at a cost of about $300,000. At that time, CH801 was already in place and did not have a permit from the Department. CH801 is larger and higher than the NAM sign. It, like the NAM sign, is within 660 feet of SR 50. However, at the time the NAM sign was built, the Department's database listed CH801 as being on SR 436, not

   SR 50. (In June 2012 the Department amended its database to declare the southern face of the sign to be visible from SR 50, thus, requiring a permit for that side. That side of the sign was then given the designation AU902.)

5. Just a year before the NAM sign was built, the Department issued a permit for the CH258/259 sign. That sign is in closer proximity to SR 50 than the NAM sign and is not as visible from SR 436. CH258/259 was built approximately 490 feet from the existing CH801.

6. On February 5, 2011, the Department posted a Notice of Violation on the NAM sign, citing failure to have a required sign permit. Gustinelli saw the notice on February 17 or 18, 2011. A Notice of Violation was also mailed to "North American Media" in

   
   

   Orlando, Florida, on February 18, 2011. That entity has nothing to do with NAM, which is located in Deerfield Beach, Florida.

   Another notice was mailed the same day to NAM's proper address, but the notice cited the wrong mile post marker for the NAM sign. The mile post marker was corrected on another notice that was mailed to NAM, but Gustinelli denies ever receiving a copy of the final version.

7. On March 15, 2011, the Department sent out yet another notice, again citing the wrong mile post marker. The mistake was corrected in a notice sent out on April 26, 2011, but Gustinelli says he did not receive the corrected notice. Then, on June 12, 2012, the Department sent out another notice, but again sent it to the wrong address.

8. Notwithstanding all the problems experienced by the Department in trying to put NAM on notice about the sign, it was ultimately brought to NAM's attention that the Department was requiring a permit for the sign. Gustinelli was surprised by this position for a number of reasons:

   • Gustinelli had done due diligence before he constructed the sign. He visually inspected the area where the sign was to be placed, researching the Department's database to see if similarly situated signs were required to be permitted.

     
     

   • Gustinelli corresponded with a Department employee through his agent, Reid Whisonant, to ascertain whether permitting would be required. (The employee's response was somewhat nebulous, but definitely could have been read to suggest that no permit was necessary.)

   • Gustinelli reviewed how other signs in the area were listed in the Department's database, then ascertained that his proposed sign would not be in a controlled area that required a permit.

9. NAM contends that the Department, through the person of Robert Jessee, indicated that no permit was necessary for the proposed NAM sign. The primary basis for NAM's contention is an email dated August 20, 2010, from Jessee to Whisonant. The email, a response to an inquiry by Whisonant, states in its entirety:

   Both sections 7500300 and 75120000 [the proposed site of the new NAM sign] are listed as secondary inside urban. The current statute s. 479.07(1), F.S. states that a sign is not allowed to exist on a state highway (secondary) OUTSIDE and [sic] urban area.

   This would allow signage without a permit from FDOT, as long as there is not another factor that would cause it to be within a controllable area.

   
   

10. The email, while seeming to say that the sign would not need to be permitted, contains a caveat. It is clear the

    
    

    Department was not addressing all factors that might require a permit for the NAM sign. And although it is understandable that Gustinelli might believe the email asserted a position by the Department that no permit would be required, it is not the only interpretation of that email.

11. At the end of the day, the Department determined that the NAM sign was visible from SR 50 and, thus, was required to have a permit.

12. The pertinent issue then becomes whether the NAM sign is a "visible sign" as that term is defined in statute. See

    §§ 479.01(29), Fla. Stat. (2011).2/ The definition appearing therein says that a visible sign is one which has an advertising message or informative content, whether legible or not, which is capable of being seen without visual aid by a person of normal visual acuity. The definition is clear, but subject to some interpretation.

13. In the present case, both parties produced videotapes showing the sign as it appears from SR 50. The Department's videotape was taken by a person standing in the median on (not driving across) the SR 50 overpass that traverses SR 436 in the subject area. In that video, the NAM sign can be seen clearly and most of its message can be discerned. The video, however, is not a perspective from the "main travel way" of the road.

    
    

14. The NAM-produced video, conversely, is taken from an automobile driving eastbound at the posted speed limit across the overpass. While the NAM sign can be seen in the video, its message is not clearly seen, and the sign can be seen only peripherally. The sign can be seen for only about three seconds when driving at the speed limit. Further, the front of the sign can only be seen by persons in the eastbound lane of SR 50; persons driving west could only see the inside of the "V" of the sign.

15. By way of comparison, the southern side of CH801 (a/k/a AU902) can be seen for five seconds; CBS 770/769 can be seen for three seconds, and CH259/259 can be seen for three seconds.

    There is no timeframe for visibility set forth in the rule, but the time is important. A driver may have "normal visual acuity," but must not divert his eyes from the road for a long period of time.

16. Considering all of the evidence, the message on the NAM sign is not clearly and completely visible from a moving automobile for a period of time long enough to read and understand its message or content. It is, therefore, not a visible sign, unless all the signs that appear in the Department's video are also visible signs. The Department does not contend that the other non-permitted signs are in violation of statute.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to chapter 120, Florida Statutes. Proceedings under section 120.57(1) are de novo in nature.

18. The Department has the authority to regulate outdoor advertising and to issue permits for signs located along interstate and federal aid highways pursuant to chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10.

19. The Department, as the party seeking to enforce a Notice of Violation, bears the burden of proof by a preponderance of the evidence. Fla. Dep't of Transp. v. J.W.C. Co., Inc.,

    396 So. 2d 778, 788 (Fla. 1st DCA 1981). There is no dispute in this case as to the Department's authority.

20. Section 479.07(1) prohibits anyone from erecting, operating, using, or maintaining any unpermitted sign on the State Highway System which is "visible from any portion of the main-traveled way of such system." Section 479.01(29) says that a "[v]isible sign means that the advertising message or information contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity."

21. Based on the evidence presented, the NAM sign is not a visible sign on a State Highway System. While the sign can be

seen from SR 436, that road is not subject to the definitions in chapter 479. Further, even though the sign can be seen from SR 50, its message and content are not discernible to drivers on that road. See, for example, Hancock Advertising v. Department of Transportation, 549 So. 2d 1086 (Fla. 5th DCA 1989), in which the court, in a very analogous situation, found that a sign was not "on" a highway just because drivers could potentially see it by turning their heads.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation rescinding its Notice of Violation against North America Media, Inc.

DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2012.

ENDNOTES

1/ There were a series of Notices of Violation issued by the Department, as will be discussed further herein. The first of the notices was dated February 15, 2011.

2/ Unless specifically stated otherwise herein, all references to Florida Statutes are to the 2011 codification.

COPIES FURNISHED:

Ananth Prasad, Secretary Department of Transportation

Haydon Burns Building, Mail Station 57 605 Suwannee Street

Tallahassee, Florida 32399-0450

Gerald B. Curington, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Deanna Hurt, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Kimberly Clark Menchion, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399

Jennifer R. Dixon, Esquire Lowndes, Drosdick, Doster,

Kantor and Reed, P.A.

215 North Eola Drive Orlando, Florida 32814

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 12-001196

Orders for Case No: 12-001196