97-000971RP Marion B. Hilliard vs. Department Of Transportation Status: Closed DOAH Final Order on Friday, April 3, 1998.

Summary: Petitioner`s intense interest in highway signs was insufficient for standing to challenge proposed rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION B. HILLIARD, )

)

Petitioner, )

)

vs. ) Case No. 97-0971RP

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

___________________________________)

WILLIAM C. JONSON, )

)

Petitioner, )

)

vs. ) Case No. 97-0972RP

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

___________________________________)

FLORIDA OUTDOOR ADVERTISING )

ASSOCIATION, ELLER MEDIA )

COMPANY, 3M NATIONAL )

ADVERTISING COMPANY, )

AK MEDIA/FLORIDA, UNIVERSAL )

OUTDOOR ADVERTISING, and )

WHITECO OUTDOOR ADVERTISING, )

)

Petitioners, )

)

vs. ) Case No. 97-1504RP

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings, by its duly designated

Administrative Law Judge, Diane Cleavinger, on February 3, 1998,

in Tallahassee, Florida.

APPEARANCES

For Petitioner : William D. Brinton, Esquire

Hilliard Allen, Brinton and Simmons, P.A.

Suite 3200

One Independent Drive

Jacksonville, Florida 32202-5026

For Petitioner : Linda C. Ingham, Esquire

Jonson Marks, Gray, Conroy and Gibbs

Post Office Box 447

Jacksonville, Florida 32201

For Petitioners: Gerald S. Livingston, Esquire

FOAA, et al . Gerald S. Livingston, P.A.

Post 0ffice Box 2151

Orlando, Florida 32802

For Respondent : Paul Sexton, Esquire

Department of Transportation

Mail Station 58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Whether Petitioners, Jonson and Hilliard, have standing to

challenge portions of the proposed amendment to Chapter 14-10,

Florida Administrative Code.

PRELIMINARY STATEMENT

On March 6, 1997, Petitioners, William C. Jonson and

Marion B. Hilliard filed separate Petitions challenging portions

of the proposed amendment of Chapter 14-10, Florida

Administrative Code. The two Petitions were essentially the same

and were assigned Case Nos. 97-0972RP and 97-0971RP,

respectively. On March 27, 1997, Petitioners, Florida

Association of Outdoor Advertising; Eller Media Company ;

3M National Advertising Company; AK Media/Florida, Universal

Outdoor Advertising; and Whiteco Outdoor Advertising (FOAA et

al .), filed a Petition challenging portions of the proposed

amendment of Chapter 14-10, Florida Administrative Code. The

case was assigned Case No. 97-1504RP. All three cases were

consolidated for purposes of hearing. By agreement of the

parties all three cases were abated pending further rulemaking

proceedings by the Department.

Prior to hearing, the issues raised in the Petition filed by

FOAA, et al ., were made moot by changes to the proposed rule

amendment. At the beginning of the hearing, FOAA, et al . , asked

to Intervene in the Hilliard and Jonson portion of the case.

Intervention was granted. Additionally, portions of the Hilliard

and Jonson Petitions were resolved by changes in the proposed

rule amendment. However, challenges to proposed rules 14-004(2)

and 14-10.007(1)(d), Florida Administrative Code, remain

unresolved.

At the hearing, Petitioner Hilliard and Jonson testified in

their own behalf on the issue of standing. None of the parties

offered any exhibits into evidence, but did submit a Prehearing

Stipulation and a Joint Stipulation containing agreement on

several facts.

After the hearing, Petitioners and Respondent filed Proposed

Final Orders on February 13, 1998, and February 18, 1998.

FINDINGS OF FACT

1. On February 14, 1997, the Department published a Notice

of Rulemaking to amend Chapter 14-10, Florida Administrative

Code, in the Florida Administrative Weekly.

2. After public hearings and comment, the Department on

July 3, 1997, January 16, 1998, and January 23, 1998, published a

Notice of Changes to the proposed amendment of Chapter 14-10,

Florida Administrative Code, in the Florida Administrative

Weekly.

3. As a result of the Notice of Changes to the proposed

amendment of Chapter 14-10, Florida Administrative Code, the only

remaining issues in this hearing concerned the validity of

proposed rule 14-10.004(2) and 14-10.007(1)(d). The proposed

amendments involve the validity of the Department’s approval of

signs with automatic changeable facings which meet certain

criteria for message changes and the validity of the Department’s

method for determining when a nonconforming sign is destroyed and

may not be repaired or reerected. The proposed rules state:

14-10.004(2 ) A permit shall be granted for

an automatic changeable facing provided:

(a ) the static display time for each message

is a minimum of six seconds,

(b ) the time to completely change from one

message to the next is a maximum of two

seconds,

(c ) the change of message occurs

simultaneously for the entire sign face, and

(d ) the application meets all other

permitting requirements. Any such signs

shall contain a default design that will

freeze the sign in one position if a

malfunction occurs.

14-10.007(1)(d ) A nonconforming sign which

is destroyed may not be reerected.

“Destroyed” is defined as when more than 50%

of the upright supports of a sign structure

are physically damaged such that normal

repair practices of the industry would call

for, in the case of wooden sign structures,

replacement of the broken supports and, in

the case of a metal sign structure,

replacement of at least 25% of the length

above ground of each broken, bent or twisted

support. However, in the event that such

damage occurs, a sign will not be considered

destroyed if the sign owner shows that

replacement materials costs to reerect the

sign would not exceed 50% of the value of the

structural materials in the sign, immediately

prior to destruction. The following shall be

applicable in determining whether the

replacement materials costs to reerect the

sign exceed 50% of the value of the

structural material:

1. Structural materials shall not include

the sign face, any skirt, any electrical

service, electrical lighting or other non-

structural items. Structural materials shall

include any support brackets for the face,

any catwalk, and any supporting braces or

members of the sign structure.

2. The value of the structural materials in

the sign immediately prior to destruction

shall be based on the cost of all structural

materials contained in the sign as it was

configured just prior to damage, and the cost

of such materials shall be based on normal

market cost as if purchased new on or about

the date of destruction, without regard to

any labor costs or special market conditions.

3. The materials to be included in the

replacement materials costs to reerect the

sign shall be all materials that would be

used to return the sign to its configuration

immediately prior to destruction and shall

not include any material that is repaired on-

site, but shall include any material obtained

from a source other than the sign itself,

whether used, recycled or repaired. The

repairs to the sign shall be with like

materials and shall be those reasonably

necessary to permanently repair the sign in a

manner normally accomplished by the industry

in that area. The cost of such materials

shall be as described in paragraph (2)(c )2.

4. The Department’s rulemaking authority is provided by

Sections 334.044(2), 479.02 (2) and (7), Florida Statutes.

Chapter 479, Florida Statutes, federal law and federal

regulations define the regulatory jurisdiction of the Department.

Sections 479.01(1 )and (14) define automatic changeable facings

and nonconforming signs, respectively. Sections 479.01(1) and

(14) state:

(1) “Automatic changeable facing” means a

facing which through a mechanical system is

capable of delivering two or more advertising

messages and shall not rotate so rapidly as

to cause distraction to a motorist.

* * *

(14) “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.

5. Both Petitioners asserted standing based on each being a

Florida taxpayer, a user of Florida’s highways and each having an

intense personal interest in the beauty of Florida’s highways.

Both have engaged in numerous social and political activities

related to the regulation of highway signs. Because of each

Petitioner’s interest, both were invited by either the Department

or the Governor to participate in the rulemaking process. None

of these characteristics affords a basis for standing in this

proceeding.

6. Neither Petitioner owns any outdoor advertising signs.

Nor do they own any land upon which such signs are located or

land adjacent to or near enough to such signs as to permit the

conclusion that either Petitioner’s property rights might be

impaired. Petitioners like all motorists in Florida, simply

drive down roads on which these signs may be located. Neither

Petitioner is significantly impacted by these proposed rules or

impacted differently than the general population. In short,

neither Petitioner has demonstrated facts sufficient to confer

standing on them in this proceeding.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over this subject matter of and the parties to this proceeding.

Section 120.54, Florida Statutes.

8. In order to hav e standing to challenge a proposed rule a

Petitioner must establish he or she will suffer a real and

sufficiently immediate injury in fact and/or that the

Petitioner’s alleged interest is arguably within the zone of

interest to be regulated by the proposed rules. Ward v. Board of

the Internal Improvement Trust Fund , 651 So. 2d 1236 (Fla. 4th

DCA 1995); and Televisual Communications, Inc. v. Florida

Department of Labor and Employment , 667 So. 2d 372 (Fla. 1st DCA

1995).

9. In this case the proposed rules deal with the manner of

changing sign facings so that such signs do not cause a

distraction to motorists and the repair of nonconforming signs.

Petitioner’s speculation about highway safety was nothing more

than that of the general public’s speculation about such

subjects. More importantly, such speculation on the possibility

of injurious highway events is too remote to demonstrate a

sufficiently immediate injury in fact or that either party has a

sufficiently real interest which falls within the zone of

interest regulated by the proposed rule. Ameristeel Corp. v.

Clark , 691 So. 2d 473 (Fla. 1973) ; State Board of Optometry v.

Florida Society of Ophthalmology , 538 So. 2d 878 (Fla. 1st DCA

1988): and Florida Department of Offender Rehabilitation v.

Jerry , 353 So. 2d 1230 (Fla. 1st DCA 1978).

10. The record in this case demonstrates that neither

Petitioner's interest in outdoor advertising signs is

significantly different from the interests of the general

population. Similarly, neither Petitioner demonstrated any

sufficiently immediate impact on them different from the general

population. Moreover, the record does not show that the

invitation by the Department or the Governor to Petitioners to

participate in the development of these rules was in recognition

of any legally significant status on their part. The invitation

does not lead to the conclusion that either Petitioner is

substantially affected for purposes of standing. Therefore the

Petitions filed by Hilliard and Jonson should be dismissed.

ORDER

Based upon the findings of fact and conclusions of law, it

is

ORDERED:

That the Petitions are DISMISSED.

DONE AND ORDERED this 3rd day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

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 [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April , 1998.

COPIES FURNISHED:

William D. Brinton, Esquire

Allen, Brinton and Simmons, P.A.

Suite 3200

One Independent Drive

Jacksonville, Florida 32202-5026

Linda C. Ingham, Esquire

Marks, Gray, Conroy and Gibbs

Post Office Box 447

Jacksonville, Florida 32201

Gerald S. Livingston, Esquire

Gerald S. Livingston, P.A.

Post Office Box 2151

Orlando, Florida 32802

Paul Sexton, Esquire

Department of Transportation

Mail Station 58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary

Department of Transportation

Mail Station 58

Haydon Burns Building

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Mail Station 58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Carroll Webb, Executive Director

Joint Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO APPEAL

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 one copy of

the notice of appeal with the Agency Clerk of the Division of

Administrative Hearings and a second 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.