97-000971RP
Marion B. Hilliard vs.
Department Of Transportation
Status: Closed
DOAH Final Order on Friday, April 3, 1998.
DOAH Final Order on Friday, April 3, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MARION B. HILLIARD, )
12)
13Petitioner, )
15)
16vs. ) Case No. 97-0971RP
21)
22DEPARTMENT OF TRANSPORTATION, )
26)
27Respondent. )
29___________________________________)
30WILLIAM C. JONSON, )
34)
35Petitioner, )
37)
38vs. ) Case No. 97-0972RP
43)
44DEPARTMENT OF TRANSPORTATION, )
48)
49Respondent. )
51___________________________________)
52FLORIDA OUTDOOR ADVERTISING )
56ASSOCIATION, ELLER MEDIA )
60COMPANY, 3M NATIONAL )
64ADVERTISING COMPANY, )
67AK MEDIA/FLORIDA, UNIVERSAL )
71OUTDOOR ADVERTISING, and )
75WHITECO OUTDOOR ADVERTISING, )
79)
80Petitioners, )
82)
83vs. ) Case No. 97-1504RP
88)
89DEPARTMENT OF TRANSPORTATION, )
93)
94Respondent. )
96___________________________________)
97FINAL ORDER
99Pursuant to notice, this matter was heard before the
108Division of Administrative Hearings, by its duly designated
116Administrative Law Judge, Diane Cleavinger, on February 3, 1998,
125in Tallahassee, Florida.
128APPEARANCES
129For Petitioner : William D. Brinton, Esquire
136Hilliard Allen, Brinton and Simmons, P.A.
142Suite 3200
144One Independent Drive
147Jacksonville, Florida 32202-5026
150For Petitioner : Linda C. Ingham, Esquire
157Jonson Marks, Gray, Conroy and Gibbs
163Post Office Box 447
167Jacksonville, Florida 32201
170For Petitioners: Gerald S. Livingston, Esquire
176FOAA, et al . Gerald S. Livingston, P.A.
184Post 0ffice Box 2151
188Orlando, Florida 32802
191For Respondent : Paul Sexton, Esquire
197Department of Transportation
200Mail Station 58
203Haydon Burns Building
206605 Suwannee Street
209Tallahassee, Florida 32399-0458
212STATEMENT OF THE ISSUE
216Whether Petitioners, Jonson and Hilliard, have standing to
224challenge portions of the proposed amendment to Chapter 14-10,
233Florida Administrative Code.
236PRELIMINARY STATEMENT
238On March 6, 1997, Petitioners, William C. Jonson and
247Marion B. Hilliard filed separate Petitions challenging portions
255of the proposed amendment of Chapter 14-10, Florida
263Administrative Code. The two Petitions were essentially the same
272and were assigned Case Nos. 97-0972RP and 97-0971RP,
280respectively. On March 27, 1997, Petitioners, Florida
287Association of Outdoor Advertising; Eller Media Company ;
2943M National Advertising Company; AK Media/Florida, Universal
301Outdoor Advertising; and Whiteco Outdoor Advertising (FOAA et
309al .), filed a Petition challenging portions of the proposed
319amendment of Chapter 14-10, Florida Administrative Code. The
327case was assigned Case No. 97-1504RP. All three cases were
337consolidated for purposes of hearing. By agreement of the
346parties all three cases were abated pending further rulemaking
355proceedings by the Department.
359Prior to hearing, the issues raised in the Petition filed by
370FOAA, et al ., were made moot by changes to the proposed rule
383amendment. At the beginning of the hearing, FOAA, et al . , asked
395to Intervene in the Hilliard and Jonson portion of the case.
406Intervention was granted. Additionally, portions of the Hilliard
414and Jonson Petitions were resolved by changes in the proposed
424rule amendment. However, challenges to proposed rules 14-004(2)
432and 14-10.007(1)(d), Florida Administrative Code, remain
438unresolved.
439At the hearing, Petitioner Hilliard and Jonson testified in
448their own behalf on the issue of standing. None of the parties
460offered any exhibits into evidence, but did submit a Prehearing
470Stipulation and a Joint Stipulation containing agreement on
478several facts.
480After the hearing, Petitioners and Respondent filed Proposed
488Final Orders on February 13, 1998, and February 18, 1998.
498FINDINGS OF FACT
5011. On February 14, 1997, the Department published a Notice
511of Rulemaking to amend Chapter 14-10, Florida Administrative
519Code, in the Florida Administrative Weekly.
5252. After public hearings and comment, the Department on
534July 3, 1997, January 16, 1998, and January 23, 1998, published a
546Notice of Changes to the proposed amendment of Chapter 14-10,
556Florida Administrative Code, in the Florida Administrative
563Weekly.
5643. As a result of the Notice of Changes to the proposed
576amendment of Chapter 14-10, Florida Administrative Code, the only
585remaining issues in this hearing concerned the validity of
594proposed rule 14-10.004(2) and 14-10.007(1)(d). The proposed
601amendments involve the validity of the Departments approval of
610signs with automatic changeable facings which meet certain
618criteria for message changes and the validity of the Departments
628method for determining when a nonconforming sign is destroyed and
638may not be repaired or reerected. The proposed rules state:
64814-10.004(2 ) A permit shall be granted for
656an automatic changeable facing provided:
661(a ) the static display time for each message
670is a minimum of six seconds,
676(b ) the time to completely change from one
685message to the next is a maximum of two
694seconds,
695(c ) the change of message occurs
702simultaneously for the entire sign face, and
709(d ) the application meets all other
716permitting requirements. Any such signs
721shall contain a default design that will
728freeze the sign in one position if a
736malfunction occurs.
73814-10.007(1)(d ) A nonconforming sign which
744is destroyed may not be reerected.
750Destroyed is defined as when more than 50%
758of the upright supports of a sign structure
766are physically damaged such that normal
772repair practices of the industry would call
779for, in the case of wooden sign structures,
787replacement of the broken supports and, in
794the case of a metal sign structure,
801replacement of at least 25% of the length
809above ground of each broken, bent or twisted
817support. However, in the event that such
824damage occurs, a sign will not be considered
832destroyed if the sign owner shows that
839replacement materials costs to reerect the
845sign would not exceed 50% of the value of the
855structural materials in the sign, immediately
861prior to destruction. The following shall be
868applicable in determining whether the
873replacement materials costs to reerect the
879sign exceed 50% of the value of the
887structural material:
8891. Structural materials shall not include
895the sign face, any skirt, any electrical
902service, electrical lighting or other non-
908structural items. Structural materials shall
913include any support brackets for the face,
920any catwalk, and any supporting braces or
927members of the sign structure.
9322. The value of the structural materials in
940the sign immediately prior to destruction
946shall be based on the cost of all structural
955materials contained in the sign as it was
963configured just prior to damage, and the cost
971of such materials shall be based on normal
979market cost as if purchased new on or about
988the date of destruction, without regard to
995any labor costs or special market conditions.
10023. The materials to be included in the
1010replacement materials costs to reerect the
1016sign shall be all materials that would be
1024used to return the sign to its configuration
1032immediately prior to destruction and shall
1038not include any material that is repaired on-
1046site, but shall include any material obtained
1053from a source other than the sign itself,
1061whether used, recycled or repaired. The
1067repairs to the sign shall be with like
1075materials and shall be those reasonably
1081necessary to permanently repair the sign in a
1089manner normally accomplished by the industry
1095in that area. The cost of such materials
1103shall be as described in paragraph (2)(c )2.
11114. The Departments rulemaking authority is provided by
1119Sections 334.044(2), 479.02 (2) and (7), Florida Statutes.
1127Chapter 479, Florida Statutes, federal law and federal
1135regulations define the regulatory jurisdiction of the Department.
1143Sections 479.01(1 )and (14) define automatic changeable facings
1151and nonconforming signs, respectively. Sections 479.01(1) and
1158(14) state:
1160(1) Automatic changeable facing means a
1166facing which through a mechanical system is
1173capable of delivering two or more advertising
1180messages and shall not rotate so rapidly as
1188to cause distraction to a motorist.
1194* * *
1197(14) Nonconforming sign means a sign which
1204was lawfully erected but which does not
1211comply with the land use, setback, size,
1218spacing, and lighting provisions of state or
1225local law, rule, regulation, or ordinance
1231passed at a later date or a sign which was
1241lawfully erected but which later fails to
1248comply with state or local law, rule,
1255regulation, or ordinance due to changed
1261conditions.
12625. Both Petitioners asserted standing based on each being a
1272Florida taxpayer, a user of Floridas highways and each having an
1283intense personal interest in the beauty of Floridas highways.
1292Both have engaged in numerous social and political activities
1301related to the regulation of highway signs. Because of each
1311Petitioners interest, both were invited by either the Department
1320or the Governor to participate in the rulemaking process. None
1330of these characteristics affords a basis for standing in this
1340proceeding.
13416. Neither Petitioner owns any outdoor advertising signs.
1349Nor do they own any land upon which such signs are located or
1362land adjacent to or near enough to such signs as to permit the
1375conclusion that either Petitioners property rights might be
1383impaired. Petitioners like all motorists in Florida, simply
1391drive down roads on which these signs may be located. Neither
1402Petitioner is significantly impacted by these proposed rules or
1411impacted differently than the general population. In short,
1419neither Petitioner has demonstrated facts sufficient to confer
1427standing on them in this proceeding.
1433CONCLUSIONS OF LAW
14367. The Division of Administrative Hearings has jurisdiction
1444over this subject matter of and the parties to this proceeding.
1455Section 120.54, Florida Statutes.
14598. In order to hav e standing to challenge a proposed rule a
1472Petitioner must establish he or she will suffer a real and
1483sufficiently immediate injury in fact and/or that the
1491Petitioners alleged interest is arguably within the zone of
1500interest to be regulated by the proposed rules. Ward v. Board of
1512the Internal Improvement Trust Fund , 651 So. 2d 1236 (Fla. 4th
1523DCA 1995); and Televisual Communications, Inc. v. Florida
1531Department of Labor and Employment , 667 So. 2d 372 (Fla. 1st DCA
15431995).
15449. In this case the proposed rules deal with the manner of
1556changing sign facings so that such signs do not cause a
1567distraction to motorists and the repair of nonconforming signs.
1576Petitioners speculation about highway safety was nothing more
1584than that of the general publics speculation about such
1593subjects. More importantly, such speculation on the possibility
1601of injurious highway events is too remote to demonstrate a
1611sufficiently immediate injury in fact or that either party has a
1622sufficiently real interest which falls within the zone of
1631interest regulated by the proposed rule. Ameristeel Corp. v.
1640Clark , 691 So. 2d 473 (Fla. 1973) ; State Board of Optometry v.
1652Florida Society of Ophthalmology , 538 So. 2d 878 (Fla. 1st DCA
16631988): and Florida Department of Offender Rehabilitation v.
1671Jerry , 353 So. 2d 1230 (Fla. 1st DCA 1978).
168010. The record in this case demonstrates that neither
1689Petitioner's interest in outdoor advertising signs is
1696significantly different from the interests of the general
1704population. Similarly, neither Petitioner demonstrated any
1710sufficiently immediate impact on them different from the general
1719population. Moreover, the record does not show that the
1728invitation by the Department or the Governor to Petitioners to
1738participate in the development of these rules was in recognition
1748of any legally significant status on their part. The invitation
1758does not lead to the conclusion that either Petitioner is
1768substantially affected for purposes of standing. Therefore the
1776Petitions filed by Hilliard and Jonson should be dismissed.
1785ORDER
1786Based upon the findings of fact and conclusions of law, it
1797is
1798ORDERED:
1799That the Petitions are DISMISSED.
1804DONE AND ORDERED this 3rd day of April, 1998, in
1814Tallahassee, Leon County, Florida.
1818___________________________________
1819DIANE CLEAVINGER
1821Administrative Law Judge
1824Division of Administrative Hearings
1828The DeSoto Building
18311230 Apalachee Parkway
1834Tallahassee, Florida 32399-3060
1837(850) 488- 9675 SUNCOM 278-9675
1842Fax Filing (904) 921-6847
1846Filed with the Clerk of the
1852Division of Administrative Hearings
1856this 3rd day of April , 1998.
1862COPIES FURNISHED:
1864William D. Brinton, Esquire
1868Allen, Brinton and Simmons, P.A.
1873Suite 3200
1875One Independent Drive
1878Jacksonville, Florida 32202-5026
1881Linda C. Ingham, Esquire
1885Marks, Gray, Conroy and Gibbs
1890Post Office Box 447
1894Jacksonville, Florida 32201
1897Gerald S. Livingston, Esquire
1901Gerald S. Livingston, P.A.
1905Post Office Box 2151
1909Orlando, Florida 32802
1912Paul Sexton, Esquire
1915Department of Transportation
1918Mail Station 58
1921Haydon Burns Building
1924605 Suwannee Street
1927Tallahassee, Florida 32399-0458
1930Thomas F. Barry, Secretary
1934Department of Transportation
1937Mail Station 58
1940Haydon Burns Building
1943Tallahassee, Florida 32399-0450
1946Pamela Leslie, General Counsel
1950Department of Transportation
1953Mail Station 58
1956Haydon Burns Building
1959605 Suwannee Street
1962Tallahassee, Florida 32399-0450
1965Carroll Webb, Executive Director
1969Joint Administrative Procedure Committee
1973120 Holland Building
1976Tallahassee, Florida 32399-1300
1979Liz Cloud, Chief
1982Bureau of Administrative Code
1986The Elliott Building
1989Tallahassee, Florida 32399-0250
1992NOTICE OF RIGHT TO APPEAL
1997A party who is adversely affected by this Final Order is entitled
2009to judicial review pursuant to Section 120.68, Florida Statutes.
2018Review proceedings are governed by the Florida Rules of Appellate
2028Procedure. Such proceedings are commenced by filing one copy of
2038the notice of appeal with the Agency Clerk of the Division of
2050Administrative Hearings and a second copy, accompanied by filing
2059fees prescribed by law, with the District Court of Appeal, First
2070District, or with the District Court of Appeal in the Appellate
2081District where the party resides. The notice of appeal must be
2092filed within 30 days of rendition of the order to be reviewed.
- Date
- Proceedings
- Date: 01/08/1999
- Proceedings: First DCA Mandate filed.
- Date: 12/23/1998
- Proceedings: First DCA Opinion (Affirmed) filed.
- Date: 12/22/1998
- Proceedings: Mandate
- Date: 07/23/1998
- Proceedings: Index, Record, Certificate of Record sent out.
- Date: 06/15/1998
- Proceedings: Payment for indexing filed.
- Date: 06/09/1998
- Proceedings: Invoice in the amount of $140.00 for indexing sent out.
- Date: 06/09/1998
- Proceedings: Index sent out.
- Date: 05/06/1998
- Proceedings: Notice of Appeal in Case 97-971RP filed.
- Date: 05/06/1998
- Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1-98-1705.
- Date: 05/01/1998
- Proceedings: Certificate of Notice of Administrative Appeal sent out.
- Date: 05/01/1998
- Proceedings: Notice of Administrative Appeal filed.
- Date: 02/18/1998
- Proceedings: (I Volume) Transcript filed.
- Date: 02/13/1998
- Proceedings: (Respondent) Order Dismissing Petitions filed.
- Date: 02/13/1998
- Proceedings: Petitioners` Memorandum of Law; Order on Standing filed.
- Date: 02/13/1998
- Proceedings: Petitioners`, Florida Outdoor Advertising Association, et al, Memorandum of Law in Support of Dismissal of the Petitions Filed by Petitioners Marion B. Hilliard and William C. Jonson for Lack of Standing filed.
- Date: 02/03/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 02/02/1998
- Proceedings: Joint Stipulation as to Issues and Filing of Prehearing Stipulation filed.
- Date: 10/06/1997
- Proceedings: Order of Consolidation sent out. (CN002672) (97-0971RP, 97-0972RP & 97-1504RP consolidated)
- Date: 10/06/1997
- Proceedings: Order Granting Continuance and Rescheduling Hearing sent out. (hearing set for 2/3/98; 9:30am; Tallahassee)
- Date: 07/24/1997
- Proceedings: Department`s Status Report filed.
- Date: 07/07/1997
- Proceedings: (M. Hillard) Status Report filed.
- Date: 05/07/1997
- Proceedings: Joint Motion to Consolidate (cases to be consolidated: 97-971RP, 97-1504RP) filed.
- Date: 04/04/1997
- Proceedings: Order Granting Motion to Consolidate; Motion to Abate and Requiring Report sent out. Consolidated case are: 97-000971RP 97-000972RP. CONSOLIDATED CASE NO - CN002672
- Date: 04/01/1997
- Proceedings: Joint Motion to Consolidate and Joint Motion to Abate filed. (Cases to be consolidated: 97-971RP, 97-972RP)
- Date: 03/12/1997
- Proceedings: Order of Assignment sent out.
- Date: 03/07/1997
- Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
- Date: 03/06/1997
- Proceedings: Petition (Challenge to Proposed Rule Amendment) filed.
Case Information
- Judge:
- DIANE CLEAVINGER
- Date Filed:
- 03/06/1997
- Date Assignment:
- 03/12/1997
- Last Docket Entry:
- 01/08/1999
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Transportation
- Suffix:
- RP