08-001468 Lamar Outdoor Advertising-Lakeland vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, October 7, 2008.

Summary: Petitioner failed to prove that the purpose of the underlying statute could be achieved by other means or denial of the variance would create a substantial hardship. The variance is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR OUTDOOR ADVERTISING- )

LAKELAND, )

)

Petitioner, )

)

vs. ) Case No. 08-1468

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on July 23,

2008, before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings, pursuant to the

administrative appeal of an Order Denying Petition for Variance

or Waiver under Subsection 120.542(2), Florida Statutes (2007)

in Tallahassee, Florida. 1

APPEARANCES

For Petitioner: Cynthia S. Tunnicliff, Esquire

Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 S. Monroe Street, 2nd Floor

Tallahassee, Florida 32302

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

STATEMENT OF THE ISSUE

Whether Respondent properly denied Lamar Outdoor

Advertising's Petition for Waiver or Variance from Florida

Administrative Code Rule 14-10.007(2)(b).

PRELIMINARY STATEMENT

On November 28, 2007, Petitioner, Lamar Outdoor

Advertising - Lakeland, submitted a Petition for Variance from

Florida Administrative Code Rule 14-10.007(2)(b), to the

Department of Transportation (FDOT) (Respondent), seeking a

variance to allow the raising of the height above ground level

for four non-conforming signs in Polk County, Florida. On

February 25, 2008, Respondent entered an Order Denying Petition

for Waiver or Variance. On March 13, 2008, Petitioner submitted

a Petition for Formal Administrative Hearing on the Variance

Denial to Respondent, which was then referred to the Division of

Administrative Hearings (DOAH) on March 24, 2008.

On March 20, 2008, Petitioner filed a Petition to Determine

the Invalidity of an Existing Rule with DOAH challenging Florida

Administrative Code Rule 14-10.007(2)(b). On April 1, 2008, the

challenges to an existing rule in DOAH Case No. 08-1408RX and

the Challenge to the Variance Denial in DOAH Case No. 08-1468

were consolidated for hearing. The parties waived the 30-day

hearing requirement in Subsection 120.56(1)(b), Florida

Statutes, and a hearing was scheduled for June 17, 2008. The

matter was continued upon request of Petitioner, in order to

complete additional discovery. The hearing was convened on

July 23, 2008.

Prior to hearing, the parties filed a Joint Stipulated

Pre-Hearing Report. Petitioner requested official recognition

of various provisions of the statutes and laws from Utah and

Nevada, 23 Code of Federal Regulation (CFR) 750.707, and the

preceding Florida Administrative Code Rule 14-10.007 from 1990.

Without objection recognition was granted. At hearing, the

parties submitted Joint Exhibits 1 through 11, including the

deposition of John Garner, which were admitted into evidence.

No live testimony was presented at hearing.

The Transcript was filed on August 6, 2008. By agreement

of the parties, proposed orders were timely filed by

August 26, 2008. The parties' proposals have been carefully

considered in the preparation of this order.

FINDINGS OF FACT

1. Respondent is the State agency responsible for

regulating outdoor advertising signs located within 660 feet of

the State Highway system, interstate, or federal-aid primary

system in accordance with Chapter 479, Florida Statutes.

2. Petitioner owns and operates outdoor advertising signs

in the State of Florida. In December 2004, Petitioner purchased

four outdoor advertising signs adjacent to Interstate 4 in Polk

County, Florida. The signs are located on lots zoned for

residential use. In accordance with Section 479.111, Florida

Statutes, signs adjacent to interstate highways and federal-aid

primary roads are only authorized in commercial, industrial

zoned or un-zoned areas. These signs are, therefore, not in

conformance with Section 479.111, Florida Statutes, and are non-

conforming signs.

3. When initially permitted, the height from the ground to

the bottom of the sign (referred to as "Height Above Ground

Level" or "HAGL") for each of Petitioner's four signs was ten

feet or less. The overall height of the signs from the ground

to the top of the sign ranged from 34 to 37 feet.

4. Respondent erected a sound attenuation barrier

(soundwall) along Interstate 4 in Polk County, Florida. As a

result, the signs were blocked from view by passing motorists.

5. In August 2006, without seeking the permission of

Respondent, Petitioner raised the HAGL of the four signs to a

height of 18 to 23 feet above ground level to allow the signs to

remain visible over the soundwall.

6. In September 2007, Respondent issued Notices of Intent

to Revoke Petitioner's permits for violations of Florida

Administrative Code Rule 14-10.007(2).

7. Previously, in 1972, an agreement was entered into

between the State of Florida and the United States Department of

Transportation to implement and carry out the Highway

Beautification Act (HBA) by controlling outdoor advertising

signs located along interstates and federal-aid primary

highways.

8. One of the purposes stated in the 1972 Agreement, was

to allow Florida "to remain eligible to receive the full amount

of all Federal-aid highway funds." In accordance with the

Agreement, a determination that Florida failed to maintain

effective control of outdoor advertising could result in a 10

percent reduction in federal highway funds.

9. Florida Administrative Code Rule 14-10.007 was

primarily drawn from the federal regulation language in

23 CFR 750.707, in effect since 1973, which provides as to non-

conforming signs:

(5) The sign must remain substantially the

same as it was on the effective date of the

State law or regulations. Reasonable repair

and maintenance of the sign, including a

change of advertising message, is not a

change which would terminate non-conforming

rights. Each State shall develop its own

criteria to determine when customary

maintenance ceases and a substantial change

has occurred which would terminate non-

conforming rights.

10. In November 2007, after receiving the Notices of

Intent to Revoke Permits, Petitioner filed a Petition for

Variance from Respondent to authorize the raising of these four

signs blocked by a noise attenuation barrier.

11. Thereafter, Respondent notified the Division

Administrator for the Federal Highway Administration (FHWA) that

a request for a variance had been received from Petitioner. By

letter dated January 7, 2008, FHWA was asked (1) if it had

developed any minimum criteria as to when a substantial change

had occurred to a non-conforming sign as prohibited by federal

regulations and (2) if no minimum criteria were established,

whether a variance from an existing rule could be granted to

allow a non-conforming sign to be increased in height as

minimally necessary to be seen over a noise attenuation barrier.

12. By letter dated February 5, 2008, FHWA responded that

(1) "a minimum Federal criteria has not been established," and

(2) "an increase in height is considered an expansion or

improvement, which is not allowed for non-conforming signs."

The letter concluded:

To summarize, the HBA and its implementing

regulations do not permit the adjustment of

a non-conforming sign where action by the

State transportation agency obstructs the

visibility of the sign from the highway. As

such, the FHWA would expect FDOT to deny the

request for a variance from the provisions

of Florida Administrative Code Rule 14-

10.007(2).

13. FHWA's February 2008, correspondence was not its first

attempt to address modifications to non-conforming signs. By

letter dated June 15, 2000, FHWA informed the Florida Department

of Transportation that non-conforming signs were not permitted

to be raised to be seen over a noise wall, stating:

Federal regulations require that non-

conforming signs must remain substantially

the same as they are on the effective date

of the State law or regulations enacted to

control them. FDOT is required to develop

its own criteria to determine when customary

maintenance ceases and a substantial change

has occurred which would terminate non-

conforming rights. In this instance, we

believe raising the sign above the wall

would constitute a substantial change and

appreciate that FDOT has come to the same

conclusion.

14. In September 2000, Respondent asked FHWA if non-

conforming signs could be reduced in size or height when

required by local ordinance. FHWA agreed to allow a reduction

in height for non-conforming signs, if required by local

ordinaces. Later in 2000, FHWA also authorized the addition of

catwalks or other fall-protection devices to non-conforming

signs provided such addition does not increase the structural

integrity of the sign or prolong the life of the sign.

Respondent's rules were amended accordingly to allow non-

conforming signs to be reduced in size when required by a local

ordinance and catwalks and other fall-protection devices to be

added provided they did not increase the signs' structural

15. In December 2003, Respondent sought FHWA concurrence

on amending Rule 14-10.007 to allow sign owners to submit a

request to raise a non-conforming sign when a noise attenuation

barrier screens or blocks the sign. The text of the proposed

rule provided that any requests approved by Respondent would be

forwarded to FHWA for final acceptance.

16. In March 2005, FHWA responded through a memorandum

providing: "Guidance on Adjustment of Non-Conforming Outdoor

Advertising Signs." As background, the memorandum noted:

With the broader use of noise walls around

the country, the conflict between HBA

prohibition against substantial improvement

of non-conforming signs and sign owners'

demands to maintain sign visibility is

arising with increasing frequency.

In analysis and guidance, the memorandum stated:

Current FHWA regulations permit a non-

conforming sign to remain "at its particular

location for the duration of its normal life

subject to customary maintenance." 23 CFR

750.707(c). The intent of the HBA is to

permit a non-conforming sign to continue in

place until it is destroyed, abandoned, or

discontinued, or is removed by the State

(which can use 75 percent Federal funding

for the removal of the sign). A non-

conforming sign must "remain substantially

the same as it was on the effective date of

the State law or regulations" adopted to

implement the HBA. 23 CFR 750.707(d)(5). A

height increase is an expansion and

improvement of a sign. In addition,

increasing sign height to clear a noise wall

typically will require new structural

measures, such as a monopole design, that

would be inconsistent with the concept of

limiting non-conforming signs to the

duration of their normal lives.

17. The memorandum concluded with the admonition: "If a

State fails to comply with the non-conforming sign provisions of

the HBA, it will become necessary to evaluate whether the State

is maintaining effective control."

18. On February 25, 2008, Respondent entered an Order

Denying Petitioner's Petition for Variance or Waiver, noting:

"FHWA has consistently advised Respondent that any increase in

height of a non-conforming sign would be a substantial change

under the federal regulation." As the underlying purpose of the

laws implementing Rule 14-10.007, was to implement and enforce

the federal-state Agreement, the HBA of 1965, and federal

regulations, Respondent concluded that "Petitioner has not

offered any contrary basis for Respondent to conclude that the

purpose of the laws underlying the rule can be achieved with a

variance." The Order Denying the Petition for Variance or

Waiver went on to state that Petitioner has not established a

substantial hardship as the affected signs were all over 30

years old and represented only four of the 900 signs owned by

Lamar Outdoor Advertising - Lakeland. Lastly, Respondent cited

to several cases for the proposition that a sign owner does not

have a right to be seen by passing motorists and concluded:

Any value Petitioner derived from having

signs visible from Interstate 4 was also

based on an artificially created condition

established in an exercise of the state's

police power for the benefit of the

traveling public. Principles of fairness do

not compel Respondent to waive its rules and

risk the loss of federal funds so that

Petitioner can continue receiving the same

state-sponsored benefit of passing motorists

that the signs enjoyed before the soundwall

was erected. Petitioner is subject to and

affected by the rule in the same manner as

every other sign owner who might wish to

construct improvements to a non-conforming

sign to enhance or maintain its economic

vitality.

CONCLUSIONS OF LAW

19. The DOAH has jurisdiction over the subject matter and

the parties hereto, pursuant to Sections 120.569 and Subsections

120.48(8) and 120.57(1), Florida Statutes.

20. Section 120.542, Florida Statutes, provides in

pertinent part: Variances and Waivers -

(1) Strict application of uniformly

applicable rule requirements can lead to

unreasonable, unfair, and unintended results

in particular instances. The Legislature

finds that it is appropriate in such cases

to adopt a procedure for agencies to provide

relief to persons subject to regulation. A

public employee is not a person subject to

regulation under this section for the

purpose of petitioning for a variance or

waiver to a rule that affects that public

employee in his or her capacity as a public

employee. Agencies are authorized to grant

variances and waivers to requirements of

their rules consistent with this section and

with rules adopted under the authority of

this section. An agency may limit the

duration of any grant of a variance or

waiver or otherwise impose conditions on the

grant only to the extent necessary for the

purpose of the underlying statute to be

achieved. This section does not authorize

agencies to grant variances or waivers to

statutes or to rules required by the Federal

Government for the agency's implementation

or retention of any federally approved or

delegated program, except as allowed by the

program or when the variance or waiver is

also approved by the appropriate agency of

the Federal Government. This section is

supplemental to, and does not abrogate, the

variance and waiver provisions in any other

statute.

(2) Variances and waivers shall be granted

when the person subject to the rule

demonstrates that the purpose of the

underlying statute will be or has been

achieved by other means by the person and

when application of a rule would create a

substantial hardship or would violate

principles of fairness. For purposes of

this section, "substantial hardship" means a

demonstrated economic, technological, legal,

or other type of hardship to the person

requesting the variance or waiver. For

purposes of this section, "principles of

fairness" are violated when the literal

application of a rule affects a particular

person in a manner significantly different

from the way it affects other similarly

situated persons who are subject to the

rule.

* * *

(5) A person who is subject to regulation

by an agency rule may file a petition with

that agency, . . . requesting a variance or

waiver from the agency's rule.

* * *

(8) An agency shall grant or deny a

petition for variance or waiver within 90

days after receipt of the original petition,

. . . The agency's decision to grant or

deny the petition shall be supported by

competent substantial evidence and is

subject to ss. 120.569 and 120.57 . Any

proceeding pursuant to ss. 120.569 and

120.57 in regard to a variance or waiver

shall be limited to the agency action on the

request for the variance or waiver, except

that a proceeding in regard to a variance or

waiver may be consolidated with any other

proceeding authorized by this chapter.

21. Petitions for Variance or Waiver must comply with

the requirements of Florida Administrative Code Rule 28-

104.002.

22. A non-conforming sign is defined in Subsection

479.01(14), Florida Statutes, as:

[A] sign which was lawfully erected but

which does not comply with the land use,

setback, size, spacing, and lighting

provisions of state or local law, rule,

regulation, or ordinance passed at a later

date or a sign which was lawfully erected

but which later fails to comply with state

or local law, rule, regulation, or ordinance

due to changed conditions.

23. 23 CFR Subsection 750.707(b) similarly defines a non-

conforming sign as:

[A] sign which was lawfully erected but does

not comply with the provisions of State law

or State regulations passed at a later date

or later fails to comply with State law or

State regulations due to changed conditions.

24. 23 CFR Part 750.707(d)(5), provides that a non-

conforming sign may undergo reasonable repair and maintenance,

but must "remain substantially the same as it was on the

effective date of the State law or regulations." Petitioner

argues that because 23 CFR Part 750.707(d)(5) allows each state

to "develop its own criteria to determine when customary

maintenance ceases and a substantial change had occurred which

would terminate non-conforming rights," the Respondent is free

to draft a rule that an increase in height as minimally

necessary to be viewed over a soundwall is "customary

maintenance."

25. Florida Administrative Code Rule 14-10.007 provides in

pertinent part:

(1) A nonconforming sign must remain

substantially the same as it was as of the

date it became nonconforming.

(2) Reasonable repair and maintenance of

nonconforming signs, including change of

advertising message, is permitted and is not

a change which would terminate the

nonconforming status. Reasonable repair and

maintenance means the work necessary to keep

the sign structure in a state of good

repair, including the replacement in kind of

materials in the sign structure. . . . The

following are examples of modifications

which do not constitute reasonable repair

or maintenance, and which constitute

substantial changes to a nonconforming

sign that will result in the loss of

nonconforming status:

* * *

(b) Modification that changes the area of

the sign facing or the HAGL of the sign,

however:

1. Reduction in the area of the sign facing

or the HAGL of the sign, which reduction is

required by an ordinance adopted by a local

government entity with jurisdiction over the

sign, is not a change which would terminate

the nonconforming status of the sign,

provided like materials are used and no

enhancements are made to the visibility of

the sign.

26. The implementing language for Rule 14-10.007 is found

in Subsection 479.02(1), Florida Statutes, which provides:

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 1 of the Highway Beautification

Act of 1965 and Title 23, Unites States

Code, and federal regulations in effect as

of the effective date of this act.

27. Section 479.02 was initially enacted in 1941 providing

the duty of the department to administer and enforce the

chapter. The requirement to enforce the Highway Beautification

Act was added in December 1971. See Laws of Florida, Chapter

71-971, Section 2. The final clause for enforcement of "federal

regulations in effect as of the effective date of this act" was

added in 1984. See Laws of Florida, Chapter 84-227, Section 3.

28. Respondent has defined "reasonable repair and

maintenance" as "the work necessary to keep the sign structure

in a state of good repair, including the replacement in kind of

materials in the sign structure." Fla. Admin. Code R.

14-10.007(2). Respondent's definition of reasonable repair and

maintenance is not illogical and therefore falls within its

grant of rulemaking authority. Board of Podiatric Medicine v.

Florida Medical Association , 779 So. 2d 658 (Fla. 1st DCA 2001)

(agency definitions of term subject to various interpretations

entitled to deference unless definition is without any valid

basis).

29. Respondent's definition of maintenance is reasonable.

Cf. Indiana Insurance Co. v. Winston , 377 So. 2d 718, 720

(Fla. 4th DCA 1979) (defining "maintenance" as "the labor of

keeping something in a state of repair or efficiency").

Conversely, Petitioner's manipulation of the term "maintenance"

to include replacing all structural supports and nearly doubling

the size of a structure is without valid basis.

30. Allowing each state to develop rules on when customary

maintenance ceases and a substantial change has occurred, does

not vest the individual states with unbridled discretion.

23 CFR § 750.705(j) requires that the State submit all

regulations and enforcement procedures regarding outdoor

advertising control to the FHWA for approval. If FHWA

determines that a state is not in compliance with the HBA, it

can withhold 10 percent federal highway funding. Cf. South

Dakota v. Volpe , 353 F. Supp. 335 (S.D. S. Dak. 1973) (upholding

FHWA's removal of 10 percent highway funding because South

Dakota's liberal zoning legislation was not consistent with the

HBA).

31. Section 339.05, Florida Statutes, entitled Assent to

Federal Aid Given, also provides authority for Florida

Administrative Code Rule 14-10.007, stating, in pertinent part:

The department is authorized to make

application for the advancement of federal

funds and 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.

32. In 2003, Respondent asked FHWA for permission to amend

its rule to allow non-conforming signs to be raised over

soundwalls. FHWA stated in unequivocal terms that increases in

height for non-conforming signs were not allowable under federal

regulations.

33. In Chancellor Media Whiteco Outdoor Corporation v.

State, Department of Transportation , 796 So. 2d 547 (Fla. 1st

DCA 2001), rev. denied , 821 So. 2d 293 (Fla. 2002), the court

affirmed an order directing the removal of non-conforming signs

reconstructed after being destroyed by wildfire. The court in

Chancellor addressed the sign owners' suggestion that other

states have allowed their sign regulations to vary from the

federal regulations, despite the threatened removal of federal

funds, by stating:

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 non-conforming highway

billboards. We instead conclude, as

respecting highway signs, that the

legislative intent was to authorize erection

of new like-kind signs to replace

grandfathered signs only if erection of the

signs would not be contrary to the Highway

Beautification Act and the federal

regulations. Because the appellant's non-

conforming signs do not satisfy this

condition, they are not authorized.

Chancellor , 796 So. 2d at 549-550.

34. In 2002, the Florida legislature enacted legislation

balancing the federal legislation with the rights of sign owners

by providing:

This chapter does not prevent a governmental

entity from entering into an agreement

allowing the height above ground level of a

lawfully erected sign to be increased at its

permitted location if a noise-attenuation

barrier, visibility screen, or other highway

improvement is erected in such a way as to

screen or block visibility of the sign.

However, if a nonconforming sign is located

on the federal-aid primary highway system,

as such existed on June 1, 1991, or on any

highway that was not part of such system as

of that date but that is or becomes after

June 1, 1991, a part of the National Highway

System, the agreement must be approved by

the Federal Highway Administration. Any

increase in height permitted under this

section may only be the increase in height

which is required to achieve the same degree

of visibility from the right-of-way which

the sign had prior to construction of the

noise-attenuation barrier, visibility

screen, or other highway improvement.

§ 479.25, Fla. Stat. (2002-2006).

35. After the FHWA's 2005 memorandum disapproving any

increases in height to non-conforming signs, Section 497.25,

Florida Statutes was amended in 2006 to provide that only signs

conforming to state and federal requirements for land use, size

and height could be increased in height if a noise-attenuation

barrier is erected so as to block the sign's visibility. By

specifying that conforming signs may be raised, under the

doctrine of expression unius est excluiso alterius , the Florida

legislature has declined to provide authorization for the

raising of non-conforming signs.

36. Petitioner had the option of allowing the signs to

remain at their original height. Instead, Petitioner chose to

violate Respondent's rules and raised the HAGL without

permission. Therefore, Petitioner lost the signs' right to

remain as non-conforming uses.

37. Petitioner has not demonstrated that the Order Denying

Petition for Variance or Waiver was an abuse of agency

discretion. Petitioner did not demonstrate that the underlying

purpose of the implementing statute could be met through

variance, nor that the loss of these four signs would be either

a substantial hardship or would violate principles of fairness.

38. Moreover, in accordance with Subsection 120.542(1),

Florida Statutes, FHWA concurrence was required to authorize

Respondent to waive the provisions of Florida Administrative

Code Rule 14-10.007. As FHWA explicitly refused to approve the

variance, Respondent properly denied Petitioner's request.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Transportation enter a

final order denying Petitioner's Request for a Waiver or

Variance.

DONE AND ENTERED this 7th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of October, 2008.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2007), unless otherwise indicated.

COPIES FURNISHED :

Cynthia S. Tunnicliff, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0450

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All Parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.