08-003175 Lamar Of Tallahassee vs. Department Of Transportation Status: Closed Recommended Order on Monday, June 7, 2010.

Summary: Despite its status as a "nonconforming sign," Petitioner's sign did not meet the relevant criteria for a Department permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR OF TALLAHASSEE, )

)

Petitioner, )

)

vs. ) Case No. 08-3175

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 29, 2010, in Tallahassee, Florida, before

Lawrence P. Stevenson, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

At issue in this proceeding is whether the Department of

Transportation's Notice of Denied Application for an outdoor

advertising permit at State Road 61 (U.S. 319), 168 feet west of

Thomasville Road, Leon County, issued to Lamar of Tallahassee on

May 30, 2008, should be upheld pursuant to Section 479.07,

Florida Statutes, 1 / or whether the sign should be permitted as a

nonconforming sign as defined by Section 479.01(14), Florida

Statutes.

PRELIMINARY STATEMENT

On May 30, 2008, the Department of Transportation (the

"Department") issued a Notice of Denied Application (Application

Number 57155) to Lamar of Tallahassee ("Lamar") for a state sign

permit for a location described as State Road 61 (U.S. 319), 168

feet west of Thomasville Road, in Leon County, Florida. The

stated basis for denial was that the sign did not meet the

spacing requirement of Section 479.07(9)(a)2. in that it was

less than 1000 feet from another permitted sign (also owned by

Lamar) on the same side of State Road 61, a federal-aid primary

highway.

On June 17, 2008, Lamar filed a Petition for Formal

Administrative Hearing with the Department to contest the permit

denial. On July 2, 2008, the Petition was forwarded to the

Division of Administrative Hearings ("DOAH") for the assignment

of an administrative law judge to conduct a formal hearing.

The hearing was initially scheduled for September 10, 2008.

On Lamar's motion, the hearing was continued to September 25,

2008. On September 17, 2008, Lamar filed a second motion to

continue, a motion for leave to amend its Petition, and an

Amended Petition for Formal Administrative Hearing Involving

Challenge to Unadopted Rule. The Amended Petition alleged that

the Department's interpretation of the definition of

"nonconforming sign" in Section 479.01(14), Florida Statutes,

amounts to an unadopted rule.

On September 19, 2008, the Department filed an unopposed

Motion for Remand to allow the parties to review the facts of

the case and determine the necessity of a hearing. The motion

was granted, and an order closing DOAH's file was entered on

September 22, 2008. The order provided that either party would

be allowed to request that DOAH reopen the case in the event

that the Department disapproved the potential settlement of the

case.

On September 18, 2009, the Department filed a motion to

reopen the case. By order dated October 9, 2009, DOAH's file

was reopened. The hearing was scheduled for January 29, 2010,

on which date it was held.

At the hearing, the parties stipulated to the admission of

Joint Exhibits 1 through 7. Lamar presented no live testimony.

Lamar's Exhibits 1 through 4 and 6 were admitted into evidence.

These exhibits included the deposition testimony of Myron "Chip"

Laborde, regional manager for Lamar Advertising Southeast; Loyd

Childree, vice-president and general manager of Lamar; and Lisa

Adams, outdoor advertising inspector for TBE Group, a Department

contractor. The Department presented the testimony of Lynn

Holschuh, the Department's state outdoor advertising

administrator. 2 / The Department's Exhibits 1 through 7 were

admitted into evidence.

The one-volume hearing transcript was filed on February 15,

2010. On February 25, 2010, Lamar filed an unopposed motion to

extend the time to submit proposed recommended orders. By order

dated February 26, 2010, the motion was granted and the parties

were given until March 5, 2010, to file their proposed

recommended orders. Both parties timely filed their Proposed

Recommended Orders on March 5, 2010.

FINDINGS OF FACT

1. The Department is a state agency empowered to regulate

outdoor advertising signs along the interstate and federal-aid

primary highway systems of Florida pursuant to Chapter 479,

Florida Statutes.

2. Lamar is licensed to engage in the business of outdoor

advertising within the state of Florida pursuant to Section

479.04, Florida Statutes.

3. Lamar owns a V-shaped sign located on certain real

property at 1940 Thomasville Road in Tallahassee. Thomasville

Road is also known as State Road 61. Lamar does not own the

real property, but has the right to erect and maintain its sign

on the property under a lease that Lamar executed with the

landowner in 1998.

4. Lamar's sign was erected in 1998, with the approval of

the City of Tallahassee.

5. The sign is located on the southwest corner of the

intersection of Thomasville and Betton/Bradford Road, behind the

Southern Flooring showroom. The east side of the sign face is

within 660 feet of and visible to State Road 61. State Road 61

is a federal-aid highway and thus a "controlled road" subject to

the jurisdiction of the Department pursuant to Section

479.07(1), Florida Statutes. Therefore, the east side of the

sign requires a permit from the Department. The west side is

visible only to Bradford Road and does not require a permit from

the Department.

6. On February 10, 2008, Lisa Adams, an outdoor

advertising inspector conducting an annual inventory on behalf

of the Department, identified the subject sign as an unpermitted

sign that is visible from State Road 61. Ms. Adams completed a

Department compliance checklist stating that the sign was

possibly illegal because it lacked a Department permit and the

east side of the sign was visible from State Road 61.

7. On April 22, 2008, the Department issued a notice of

violation stating that the sign was illegal and must be removed

within 30 days of the date of the notice, pursuant to Section

479.105, Florida Statutes.

8. Lamar did not file a request for hearing in response to

the notice of violation, and does not contest the notice of

violation in this proceeding.

9. On May 16, 2008, Lamar filed an Application for Outdoor

Advertising Permit for the sign. The Department reviewed the

application and issued a Notice of Denied Application on May 30,

2008. The application was denied because the sign site does not

meet the spacing requirements of Section 479.07(9)(a)2., Florida

Statutes, in that it is closer than 1,000 feet from another

permitted sign owned by Lamar.

10. The other permitted sign was built in 1979. The 1,000

foot spacing requirement has been in the statute at all times

since the 1998 construction of the sign at issue in this

proceeding, meaning that it could never have met the spacing

requirement of Section 479.07(9)(a)2., Florida Statutes.

11. Myron Laborde was Lamar Advertising Southeast's

regional manager in 1998 when the sign was built. His area of

authority included Tallahassee. Mr. Laborde testified that in

1998 the view of the sign from State Road 61 was obstructed by

several palm trees, some scrub oaks, and a very tall tallow

tree. Some of these trees were removed when Southern Flooring

took over and remodeled the old Helms Exterminators building at

1940 Thomasville Road about four years ago. Mr. Laborde

testified that the sign is now visible from State Road 61 due to

the removal of the trees, but only "if you . . .turn your head

90 degrees" while driving north on State Road 61.

12. Loyd Childree has been the vice-president and general

manager of Lamar of Tallahassee since 2003. Mr. Childree

testified that the renovations to the Helms Exterminators

building began some time after March 2005, and that the

building's size was nearly doubled to accommodate the Southern

Flooring showroom. Mr. Childree testified that a lot of trees

were removed during the renovation, including palm trees and a

"canopy-type tree" about 25 to 30 feet tall with a full crown

similar to that of an oak. Mr. Childree testified that the sign

is now visible from State Road 61 due to the removal of the

trees.

13. Mr. Childree further stated that Lamar markets the

sign to advertisers based on the traffic counts from Bradford

Road, not those from State Road 61.

14. Ms. Adams, the inspector who identified the possible

illegality of the sign, has worked for the Department's

contractor, TBE Group, since August 2004. Her job is to conduct

an inventory of permitted signs on controlled roads such as

State Road 61 and determine which unpermitted signs are visible

from the roadway. Ms. Adams inventoried State Road 61 in 2005,

2006 and 2007 without identifying Lamar's sign as an unpermitted

sign visible from the roadway. Ms. Adams testified that her

predecessor in the position inventoried State Road 61 every year

since Lamar's sign was erected and never identified the sign as

one visible from State Road 61.

15. Ms. Adams testified that she might have seen the sign

in a previous year but did not identify it as illegal because

she believed it had "on-premise" advertising, i.e. , it

advertised Southern Flooring. With certain restrictions, a sign

erected on the premises of a business establishment that bears

advertising for that establishment is exempt pursuant to Section

479.16(1), Florida Statutes.

16. Ms. Adams frankly conceded that she was speculating

and that her memory was unclear as to whether she had seen and

noted this sign in past years. In any event, Lamar's log of

advertisers showed that Southern Flooring never advertised on

the sign.

17. Lynn Holschuh is the Department's state outdoor

advertising administrator, and had held this position since

1992. Ms. Holschuh testified that State Road 61 has been

inventoried by an outdoor advertising inspector every year since

Lamar's sign was erected in 1998. None of the inspectors noted

the visibility or possible illegality of the sign until

Ms. Adams noted the sign on February 12, 2008.

18. Ms. Holschuh lives in Tallahassee and has driven on

State Road 61 hundreds of times over the years. In her

deposition, she testified that she believed the sign was not

visible when it was built, and only became visible from State

Road 61 when a third party removed the obstructing trees.

19. The testimony of Mr. Laborde, Mr. Childree, and

Ms. Holschuh was credible and uncontroverted as to the history

of the sign. It is found that the sign was not visible from

State Road 61 when it was erected in 1998, but that it became

visible from State Road 61 when trees were removed by the

landowner during renovations to the old Helms Exterminators

building at some point after March 2005.

20. Lamar's sign, now visible from State Road 61, is

subject to the Department's jurisdiction pursuant to Section

479.01, Florida Statutes, because State Road 61, as a federal-

aid primary highway, is a "controlled road" under the statute.

A sign visible from a controlled road must carry a Department

permit.

21. Lamar contends that the facts of this case establish

that its sign meets the definition of a "nonconforming sign" set

forth in Section 479.01(14), Florida Statutes:

"Nonconforming sign" means 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.

22. Lamar's sign was not visible from State Road 61 in

1998 and therefore was "lawfully erected" in terms of the

Department's licensing requirements. Lamar contends that the

removal of trees by a third party constituted "changed

conditions" that rendered the sign out of compliance with state

law, and that the sign is therefore a nonconforming sign under

Section 479.01(14), Florida Statutes.

23. The Legislature has provided no definition of the term

"changed conditions," and the Department has no rule to provide

interpretive guidance to the words of the statute. On

September 17, 2008, Lamar filed a motion for leave to amend its

petition for hearing in this case to challenge the Department's

alleged interpretation of the phrase "due to changed conditions"

as an unadopted rule. In particular, Lamar alleged that the

Department was applying an unadopted rule limiting "changed

conditions" to those initiated by a government agency. On

September 19, 2008, the Department filed an unopposed motion to

remand the case to the agency. The motion was granted on

September 22, 2008.

24. In the Florida Administrative Weekly dated

November 26, 2008 (vol. 34, no. 48, p. 6228), the Department

published a Notice of Development of Proposed Rule, with the

following preliminary text of an amendment to Florida

Administrative Code Rule 14-10.006:

14-10.006 Additional Permitting Criteria.

Each application for an outdoor advertising

sign permit shall meet the requirements of

Sections 479.07(9) and 479.11, F.S. In

addition, an application must comply with

the requirements of the agreement between

the state and the United States Department

of Transportation referenced in Section

479.02(1), F.S., which have not been

duplicated in Sections 479.07(9) and 479.11,

F.S., or superseded by stricter provisions

in those statutes. The requirements are:

(1) through (8) No change.

(9) The term "changed conditions"

referenced in Section 479.01(14), F.S.,

defining nonconforming signs, means only the

actions of a governmental entity, as defined

by Section 11.45, F.S., which includes for

example: Rezoning of a commercial area,

reclassifying a secondary highway as a

primary highway, or altering a highway's

configuration causing a preexisting sign to

become subject to the Department's

jurisdiction. (Emphasis added)

25. Ms. Holschuh testified that this draft rule language

was written in direct response to Lamar's allegation that the

Department's denial of its application was based on an

unadopted rule.

26. On December 16, 2008, the Department held a workshop

on the draft rule. At the workshop, the Florida Outdoor

Advertising Association ("FOAA") submitted the following

suggested draft language for subsection (9) of Florida

Administrative Code Rule 14-10.006:

(9) The term "changed conditions" referenced

in Section 479.01(14), F.S., defining

nonconforming signs, means, and shall

include, any of the following:

(a) An action taken by a governmental

entity, as defined by Section 11.45, F.S.,

such as the rezoning of a parcel of property

fro commercial to noncommercial,

reclassifying a secondary highway to a

primary highway, altering a highway's

configuration, or the taking of any other

action within the powers of such

governmental entity which thereby causes a

preexisting sign to become subject to the

Department's jurisdiction;

(b) The action of a third party, who is not

the owner of a preexisting sign, relating to

modifications to the topography, vegetation,

buildings or other physical characteristics

of the property upon which the sign is

located, or the property surrounding the

sign, which thereby causes a preexisting

sign to become subject to the Department's

jurisdiction.

(c) an act of God which thereby causes a

preexisting sign to become subject to the

Department's jurisdiction.

27. The Department rejected the FOAA's proposed language,

and ultimately abandoned the effort to adopt a rule defining the

term "changed conditions." On September 18, 2009, the

Department filed a motion with DOAH to reopen this case and

proceed to a fact-finding hearing regarding its proposed

rejection of Lamar's application.

28. In her deposition, Ms. Holschuh testified that the

rulemaking effort was abandoned because the language proposed by

the FOAA made it clear that it would be "nearly impossible" to

arrive at a definition that would cover "every situation that

might arise for when an existing sign might suddenly become

visible."

29. Ms. Holschuh testified in deposition that it is now

the Department's policy to review these matters on a case-by-

case basis. However, she also testified that the Department, as

a matter of "policy," continues to limit its consideration of

"changed conditions" to actions taken by a governmental entity.

The Department bases this limitation on the examples provided by

23 C.F.R. § 750.707(b), defining "nonconforming signs" for

purposes of the Federal Highway Administration:

A nonconforming sign is 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.

Changed conditions include, for example,

signs lawfully in existence in commercial

areas which at a later date become

noncommercial, or signs lawfully erected on

a secondary highway later classified as a

primary highway.

30. Ms. Holschuh stated that the Department's policy was

applied to Lamar in the instant case, and would continue to be

applied in the future unless some "extraordinary circumstance"

in a specific case led the Department to revisit the policy.

31. At the final hearing, Ms. Holschuh backed away

somewhat from her flat statement that the Department's "policy"

was to limit consideration of changed conditions to those caused

by government action. She stated that FOAA's proposed rule

language caused the Department to reconsider its position that

governmental action should be the exclusive reason for granting

a permit for "changed conditions," and testified that the

Department will consider other circumstances in its case-by-case

review of permit applications.

32. Ms. Holschuh testified that, under the facts presented

in this case, the Department would deny the permit because there

is DOAH case law on point for the proposition that tree removal

does not constitute "changed conditions," and because broadening

the definition of "changed conditions" to include the situation

presented by this case would open up the process to abuse.

33. Ms. Holschuh testified, at more than one point in the

proceeding, that the Department would have very likely granted

the permit had the trees been removed by the Department rather

than the private landowner. She gave no indication that Section

479.105(1)(e), Florida Statutes, or any other statute would

prevent the Department from granting the permit for Lamar's

nonconforming sign, should the Department find that the sign

fell into nonconformity due to "changed conditions."

34. The DOAH case law cited by Ms. Holschuh is Lamar of

Tallahassee v. Department of Transportation , Case Nos. 08-0660

and 08-0661 (DOAH September 15, 2008), discussed more fully in

the Conclusions of Law below.

35. Ms. Holschuh testified that Lamar's sign is not

located in a Department right-of-way and is not a hazard to the

public in its current location.

CONCLUSIONS OF LAW

36. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat.

37. The Department is authorized to regulate outdoor

advertising signs located along interstate and federal-aid

primary highways pursuant to Chapter 479, Florida Statutes, and

Florida Administrative Code Chapter 14-10.

38. As the party seeking a permit from the Department,

Lamar has the burden to prove its entitlement to the permit by a

preponderance of the evidence. See Florida Department of

Transportation v. J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA

1981) (the burden of proof, apart from statute, is on the party

asserting the affirmative of an issue).

39. Section 479.07(1), Florida Statutes, provides:

Except as provided in ss. 479.015(1)(e) and

479.16, a person may not erect, operate,

use, or maintain, or cause to be erected,

operated, used, or maintained, any sign on

the State Highway System outside an

incorporated area or on any portion of the

interstate or federal-aid primary highway

system without first obtaining a permit for

the sign from the department and paying the

annual fee as provided in this section. For

purposes of this section, "on any portion of

the State Highway System, interstate, or

federal-aid primary system" shall mean a

sign located within the controlled area

which is visible from any portion of the

main-traveled way of such system.

40. The evidence adduced at hearing established that

Lamar's sign fell under the Department's jurisdiction when the

removal of trees by the landowner caused the sign to become

visible from State Road 61, a federal-aid highway.

41. Section 479.07(9)(a), Florida Statutes, provides, in

relevant part:

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:

1. One thousand five hundred feet from any

other permitted sign on the same side of the

highway, if on an interstate highway.

2. One thousand feet from any other

permitted sign on the same side of the

highway, if on a federal-aid primary

highway....

42. The evidence established that Lamar's sign cannot be

permitted as a conforming sign because it is located inside of

1000 feet from another permitted sign, contrary to Section

479.07(9)(a)2., Florida Statutes.

43. As set forth at Finding of Fact 21, supra , Section

479.01(14), Florida Statutes, provides:

"Nonconforming sign" means 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.

44. Section 479.105(1), Florida Statutes, provides, in

relevant part:

(1) Any sign which is located adjacent to

the right-of-way of any highway on the State

Highway System outside an incorporated area

or adjacent to the right-of-way on any

portion of the interstate or federal-aid

primary highway system, which sign was

erected, operated, or maintained without the

permit required by s. 479.07(1) having been

issued by the department, is declared to be

a public nuisance and a private nuisance and

shall be removed as provided in this

section.

* * *

(e) However, if the sign owner demonstrates

to the department that:

1. The sign has been unpermitted,

structurally unchanged, and continuously

maintained at the same location for a period

of 7 years or more;

2. At any time during the period in which

the sign has been erected, the sign would

have met the criteria established in this

chapter for issuance of a permit;

3. The department has not initiated a

notice of violation or taken other action to

remove the sign during the initial 7-year

period described in subparagraph 1.; and

4. The department determines that the sign

is not located on state right-of-way and is

not a safety hazard, the sign may be

considered a conforming or nonconforming

sign and may be issued a permit by the

department upon application in accordance

with this chapter and payment of a penalty

fee of $300 and all pertinent fees required

by this chapter, including annual permit

renewal fees payable since the date of the

erection of the sign.

45. The evidence established that, for at least some

portion of the pendency of this case, the Department interpreted

the term "changed conditions" in the statutory definition of

"nonconforming sign" as limited to actions taken by governmental

agencies.

46. Lamar contends that this interpretation constitutes an

unadopted rule, as defined in Section 120.52(20), Florida

Statutes. An unadopted rule is an "agency statement of general

applicability that implements, interprets, or prescribes law or

policy" that has not been adopted pursuant to the requirements

of Section 120.54, Florida Statutes. Section 120.57(1)(e),

Florida Statutes, provides, in relevant part:

1. An agency or an administrative law judge

may not base agency action that determines

the substantial interests of a party on an

unadopted rule. The administrative law

judge shall determine whether an agency

statement constitutes an unadopted rule.

This subparagraph does not preclude

application of adopted rules and applicable

provisions of law to the facts.

2. Notwithstanding subparagraph 1., if an

agency demonstrates that the statute being

implemented directs it to adopt rules, that

the agency has not had time to adopt those

rules because the requirement was so

recently enacted, and that the agency has

initiated rulemaking and is proceeding

expeditiously and in good faith to adopt the

required rules, then the agency's action may

be based upon those unadopted rules, subject

to de novo review by the administrative law

judge. The agency action shall not be

presumed valid or invalid. The agency must

demonstrate that the unadopted rule :

a. Is within the powers, functions, and

duties delegated by the Legislature or, if

the agency is operating pursuant to

authority derived from the State

Constitution, is within that authority;

b. Does not enlarge, modify, or contravene

the specific provisions of law implemented ;

c. Is not vague, establishes adequate

standards for agency decisions, or does not

vest unbridled discretion in the agency;

d. Is not 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;

e. Is not being applied to the

substantially affected party without due

notice; and

f. Does not impose excessive regulatory

costs on the regulated person, county, or

city . . . (Emphasis added.)

47. The agency statement that "changed conditions" is

limited by policy to changes initiated by governmental action

meets the definition of a rule, based on Ms. Holschuh's

deposition testimony. Though the Department in November 2008

commenced the process to adopt this policy as a rule, that

process was abandoned. Thus, the policy would constitute an

unadopted rule if it were applied to Lamar in this case.

48. Nothing in Section 479.01(14), Florida Statutes, or in

Chapter 479 as whole, indicates a legislative directive or

intent to limit the term "changed conditions" to actions taken

by a government agency. The plain language of the term "changed

conditions" evokes no such limitation. 23 C.F.R. § 750.707(b)

does not purport to provide an exclusive list of all the

possible "changed conditions" that could render a sign

nonconforming, nor does the federal rule appear to preempt state

governments from expanding on the examples it provides. 3 / The

unadopted rule modifies the definition of "nonconforming sign"

found at Section 479.01(14), Florida Statutes, by adding a

requirement not directly imposed by nor fairly inferable from

the language of the statute.

49. Giving full credit to Ms. Holschuh's testimony at the

final hearing, the Department is now proceeding on a "case-by-

case basis" rather than pursuant to its previously-stated

policy. However, this change renders the Department's position

no more tenable. Though the Department's asserted "governmental

action" policy constituted an unadopted rule that modified the

specific provision of law it purported to implement, it at least

had the virtue of articulating a reviewable standard against

which the agency's decision could be judged.

50. Absent the policy, "changed conditions" is an

undefined term for purposes of the grant or denial of a permit.

The Department provided no standard or reference point against

which its decision may be measured. The Department offered no

evidence tending to show that "changed conditions" in the

statute carries any meaning other than that which a common

reader would ascribe to it, or to show that this tribunal should

defer to the Department's specialized knowledge and expertise in

interpreting and applying the term. It stands to reason that if

the Legislature is not allowed to delegate to an agency the

power to exercise unrestricted discretion in applying the law,

Department of State, Division of Elections v. Martin , 916 So. 2d

763, 769-771 (Fla. 2005), then an agency may not assume such

power.

51. In the instant case, there was no dispute that Lamar's

sign was lawfully erected, and that the only reason it currently

fails to comply with state law is the cutting of trees by the

landowner, a circumstance out of Lamar's control. 4 / The

Department has offered no reasonable explanation for why this

should not be considered "changed conditions" pursuant to the

undefined term set forth in Section 479.01(14), Florida

Statutes, and Lamar's sign therefore considered nonconforming.

52. Ms. Holschuh pointed to Lamar of Tallahassee v.

Department of Transportation , Case Nos. 08-0660 and 08-0661

(DOAH September 15, 2008), as authority for the proposition that

the removal of trees does not constitute "changed conditions."

However, in that case the Administrative Law Judge did not make

an explicit finding as to whether the removal of trees causing

the sign to become visible from a federal-aid highway

constituted "changed conditions." The dispositive issue was

whether the sign in question met the permitting criteria of

Section 479.105(1)(e), Florida Statutes. 5 /

53. The dispositive issue in the 2008 Lamar of Tallahassee

proceeding raises the final question in the instant case. Lamar

contends that once its sign is found to meet the definition of a

"nonconforming sign," the inquiry is at an end and the permit

should be granted.

54. The Department contends that, even if the sign is

nonconforming, it must still meet the criteria set forth in

Section 479.105(1)(e), Florida Statutes, in order to obtain a

permit. The Department's position, in this case and in the 2008

proceeding, has been that Section 479.105(1)(e), Florida

Statutes, "is the only portion of Chapter 479 which establishes

criteria under which a sign erected or maintained without a

permit may be issued a permit as either a conforming or a

nonconforming sign. A non-permitted sign's eligibility for the

issuance of a permit is governed by those criteria and is not

dependent upon . . . whether the sign is ultimately

characterized as a conforming or nonconforming sign." Lamar of

Tallahassee v. Department of Transportation , Case Nos. 08-0660

and 08-0661 (Department of Transportation Final Order,

October 27, 2008), p. 8.

55. The parties do not dispute that Lamar's sign cannot

meet the requirement set forth in Section 479.105(1)(e)2.,

Florida Statutes. At no time since its erection in 1998 would

the sign have met the criteria of Chapter 479 for the issuance

of a permit due to its proximity within 1000 feet of another

permitted sign.

56. Lamar argues that Section 479.105(1)(e) is not at

issue in this case. Lamar notes that the Department did not

cite Section 479.105(1)(e) as a basis for disapproval of the

permit, and points out that Ms. Holschuh testified that the

permit would most likely have been granted if the trees had been

removed by a governmental entity. Lamar contends that

Ms. Holschuh's testimony establishes that the Department could

grant the nonconforming sign permit to Lamar, notwithstanding

Section 479.105(1)(e), Florida Statutes. 6

57. Lamar's reading of Ms. Holschuh's testimony is fair

and reasonable. However, Ms. Holschuh is only the administrator

of the outdoor advertising program. She does not have the

authority to waive the requirements of Section 479.105(1),

Florida Statutes. The statute plainly states that a sign

"erected, operated, or maintained without the permit required by

s. 479.07(1)" adjacent to the right-of-way on a federal-aid

highway is a public nuisance and must be removed, unless it can

meet the criteria set forth in paragraph (e). Lamar's sign is

subject to this statute, and cannot meet the criteria of

paragraph (e).

58. In summary and conclusion, Lamar established that its

sign meets the definition of a "nonconforming sign" set forth in

Section 479.01(14), Florida Statutes. The Department's

unadopted rule limiting the definition of "changed conditions"

to actions taken by government agencies was an illicit

modification of the statute it purported to implement. The

Department articulated no reasonable rationale for denying that

Lamar's sign was nonconforming. However, Lamar could not

establish that its nonconforming sign satisfied the criteria set

forth in Section 479.105(1)(e), Florida Statutes. Therefore,

the Department should deny Lamar's permit application.

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 denying the application of Lamar of

Tallahassee for a state sign permit for a location described as

State Road 61 (U.S. 319), 168 feet west of Thomasville Road, in

Leon County, Florida (Application Number 57155).

DONE AND ENTERED this 7th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June, 2010.

ENDNOTES

1 / Unless otherwise indicated, references to the Florida

Statutes are to the 2008 edition.

2 / In addition to her live testimony, Ms. Holschuh's deposition

of January 7, 2010, was admitted into evidence as Joint

Exhibit 7.

3 / At least two states provide for "changed conditions" that go

beyond governmental action. Arizona Administrative Code s. R17-

3-901 (signing for colleges/universities) provides that

"physical deterioration of a sign" is an example of a "changed

condition." Georgia Comprehensive Rules and Regulations r. 672-

6-.03(2) provides that "changed conditions" include those

"beyond the control of the sign owner since the erection of the

sign."

4 / If there were evidence that Lamar had procured its own

"changed conditions," by itself removing the trees or having

them removed by a third party, then the Department would be

fully justified in denying the permit for failure to meet the

definition of a "nonconforming sign." Though Ms. Holschuh never

elaborated on the potential for "abuse" that caused the

Department to reject broadening the definition of "changed

conditions," it is presumed from the context of the hearing that

she had in mind such a "self-help" scenario.

5 / The most apt Findings of Fact from the cited case are as

follows:

13. The Department's employee responsible

for issuing violation notices is Lynn

Holschuh. She confirmed that if the south

sign face was completely blocked from view

from the main traveled way of SR366/West

Pensacola Street when it was originally

constructed, a sign permit would not be

required from the Department. Ms. Holschuh

further testified that if a change in

circumstances occurred resulting in the

subject sign becoming visible from the main

traveled way of Pensacola Street, the sign

might be permitted by the Department as a

non-conforming sign, if it met the criteria

for such.

14. In this case, the south face of the

sign was once legal and did not require a

permit because several large trees blocked

the sign's visibility from a federal aid

highway. The removal of the trees that

blocked the sign caused the sign to become

visible from a federal aid highway. In

short, the south sign face no longer

conformed to the Florida Statutes and Rules

governing such signs and now is required to

have a sign permit. However, the sign has

not been in continuous existence for seven

years and has received a Notice of Violation

since its construction in 2005. The

evidence was clear that the sign does not

meet the requirements to qualify as a

nonconforming sign and cannot be permitted

as such. Therefore, Petitioner's

application for a sign permit should be

denied and the sign removed pursuant to the

Notice of Violation.

The most relevant Conclusion of Law is as follows:

20. In this case, the evidence showed that

the sign had been lawfully erected in 2005

because it was not visible from a federal

aid highway and did not require a permit.

There was no evidence that the designation

of a highway changed the legal status of the

sign. In fact, the status of the sign

changed when the trees blocking its view

were removed. However, the evidence was

clear that the sign has not been in

continuous existence for seven years since

its construction. Additionally, the sign

has been issued a Notice of Violation since

the time of its construction. Given these

facts, the sign does not meet the statutory

requirements to be designated a

nonconforming sign entitled to a permit

under [Section 479.105(1)(e), Florida

Statutes.] See Scharrer v. Department of

Professional Regulation , 536 So. 2d 320

(Fla. 3rd DCA 1988). The evidence was also

clear that the sign is located within 1,000

feet of another permitted structure.

Therefore, Petitioner is not entitled to a

permit for the south face of the subject

sign since it is within 1,000 feet of

another permitted sign.

6 / Lamar has identified a genuine source of tension in the

governing statutes, a tension that the Department's own rules

appear to acknowledge. The facts of this case established that

Lamar's sign was "lawfully erected" as that term is used in

Section 479.01(14). However, the sign was lawfully erected

outside of the jurisdiction of the Department. Once it fell

within the Department's jurisdiction, the sign became subject to

the Catch-22 of Section 479.105(1)(e)2., Florida Statutes: in

order to obtain a permit, the sign in question must have met the

Department's permitting criteria at some point during its

existence, even though it was never subject to the Department's

jurisdiction until a third party cut down the obstructing trees.

In other words, a sign may meet the definition of a

"nonconforming sign" yet be unpermittable. Section

479.105(1)(e) makes no exception for a sign that was "lawfully

erected" yet never met the criteria for a Department permit.

Florida Administrative Code Rule 14-10.004 is titled

"Permits." It does not cite Section 479.105, Florida Statutes,

as either rulemaking authority or as a law implemented. Section

(3) of the rule provides:

(3) Notwithstanding any other provisions of

this rule chapter, an outdoor advertising

sign existing at a location which previously

was not subject to the permitting

requirements of this chapter, but which has

become subject to the requirements of this

chapter due to changes in the jurisdictional

designation of highways, shall be granted a

state permit in accordance with the process

outlined below:

(a) The Department shall conduct an

inventory of outdoor advertising signs on

the highway section subject to

jurisdictional change and, within 60

calendar days of the effective date of the

proposed change, advise all affected sign

owners and local governments that the change

is being considered, the regulatory effect

of the change, and when the change may

become effective.

(b) Upon approval of the jurisdictional

change, the Department will provide a second

notice to sign owners and local governments

advising that the change in jurisdiction has

become effective and that sign owners have

30 calendar days from receipt of the second

notice to submit an application for a sign

permit.

(c) When the Department is unable to provide

the advance notice referenced in paragraph

(a), above, the Department will advise the

affected sign owners that they have 90

calendar days from receipt of the notice

that the change in jurisdiction has become

effective to submit an application for a

sign permit.

(d) The Department shall issue an Outdoor

Advertising Permit, Form 575-070-30, Rev.

07/01, to the sign owner upon receipt of a

complete Application for Outdoor Advertising

Permit, Form 575-070-04, Rev. 02/09,

together with all items required by Section

479.07(3)(b), F.S. For existing signs, the

written statement required by Section

479.07(3)(b), F.S., shall be any written

document from the appropriate local

governmental official indicating compliance

with local requirements as of the date of

the permit application. A previously issued

building permit shall be accepted as the

statement from an appropriate local

governmental official, except in cases where

the local government has provided notice to

the sign owner that the sign is illegal or

has undertaken action to cause the sign to

be removed. When a building permit is

submitted as the statement of the local

government, the applicant shall certify in

writing that the local government has not

provided notice that the sign is illegal,

and that the local government has taken no

action to cause the sign to be removed.

The quoted rule establishes that the Department has not always

been consistent in its position that the only way for the owner

of an existing sign to obtain a permit is by way of Section

479.105(1)(e). In Florida Administrative Code Rule 14-

10.004(3), the Department effectively decrees that where there

has been a change in the jurisdictional designation of a

highway, the question whether the sign "would have met the

criteria established in [Chapter 479, Florida Statutes]" at any

time during its existence may be ignored. Though this is no

doubt a practical solution to the problem of large numbers of

signs falling under the Department's jurisdiction at once when a

highway designation changes, it does not appear to be consistent

with Section 479.105(1), Florida Statutes, with the Department's

position in the instant case, or with the Department's Final

Order in the 2008 Lamar of Tallahassee case as quoted in

Conclusion of Law 54, supra .

The validity of Florida Administrative Code Rule 14-10.004(3)

is not at issue in this proceeding. The rule was cited to

indicate that it was not unreasonable for Lamar to believe that

the Department could sidestep Section 479.105(1) when exigent

circumstances and basic fairness to an applicant make it

reasonable to do so.

However, despite the apparent unfairness to Lamar, the

undersigned is constrained by the statutory scheme to recommend

denial of Lamar's application. In the instant case, the

Department's position is correct and consistent with Sections

479.07(1) and 479.105(1), Florida Statutes.

COPIES FURNISHED :

Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

Deanna Hurt, Clerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie C. 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 Station 58

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.