02-003531 Dan Calabria vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, December 31, 2002.

Summary: Petitioner lacks standing to challenge special use permit issued to city by Department to install sign/mural in median of State Road 693, but sign fails to meet criteria in Department`s Traffic Engineering Manual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAN CALABRIA, )

)

Petitioner, )

)

vs. ) C ase No. 02 - 3531

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

CITY OF SOUTH PASADENA, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 30, 2002, in Clearwater, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearin gs.

APPEARANCES

For Petitioner: Dan Calabria

7068 South Shore Drive, South

South Pasadena, Florida 33707

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

For Intervenor: Linda M. Hallas, Esquire

City of South Pasadena

7047 Sunset Drive, South

South Pasadena, Florida 33707

STATEMENT OF THE ISSUES

The issues are whether Petitioner has standing to challenge

the Department of Transportation's decision to issue special use

permit No. 02 - K - 799 - 0021 to the City of South Pasadena, and

whether the special use permit was properly issued by the

Department.

PRELIMINARY STA TEMENT

On June 26, 2002, the Department of Transportation

(Department or Respondent) issued special use permit No. 02 - K -

799 - 0021 (Permit) to the City of South Pasadena (City) to allow

the City to construct a sign on a median within the right - of - way

of Sta te Road 693. Starting on July 29, 2002, Petitioner sent

several letters to the Department requesting a formal hearing on

the Department's decision. On September 11, 2002, the

Department finally referred the matter to the Division of

Administrative Hearin gs (Division) for the assignment of an

administrative law judge to conduct the formal hearing requested

by Petitioner.

On October 7, 2002, the City filed a petition to intervene

pursuant to Rule 28 - 106.205, Florida Administrative Code. The

petition was g ranted by Order dated October 16, 2002.

At the hearing, Petitioner testified in his own behalf and

also presented the testimony of City Commissioner Chris Burgess. 1

Petitioner's Exhibits, numbered P1 through P4 and P6

through P14, were received into evid ence. 2 The Department

presented the testimony of Department employees Norman Lataille,

Kevin Dunn, and Chris Gregory, all of whom were involved in the

review of the Permit. The Department's Exhibits, numbered R1

through R13, were received into evidence. The City presented

the testimony of William Naylor, the City's Chief of Public

Safety, and Bob Brown, a professional engineer. Mr. Brown was

accepted as an expert in site distance calculation and analysis.

The City's Exhibits, numbered I1 and I2, were r eceived into

evidence. At Petitioner's request, official recognition was

taken of Sections 337.406 and 479.11, Florida Statutes.

The Transcript of the hearing was filed with the Division

on November 14, 2002. The parties requested and were granted 20

da ys from the date the Transcript was filed to submit their

proposed recommended orders (PROs). As a result, the parties

waived the deadline for the submittal of this Recommended Order.

See Rule 28 - 106.216(2), Florida Administrative Code. The

Department a nd the City timely filed their PROs; Petitioner

filed his PRO on December 9, 2002. All of the PROs were given

due consideration by the undersigned in preparing this

Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at th e

hearing, the following findings are made:

A. Parties

1. Petitioner is a resident of the City. Petitioner lives

in a subdivision less than one - half mile from the location of

the sign at issue in this proceeding.

2. Shore Drive provides the only man ner of egress from the

subdivision in which Petitioner lives. Shore Drive intersects

State Road 693 just south of the location of the sign at issue

in this proceeding. Shore Drive becomes Matthews Road once it

crosses State Road 693.

3. Petitioner driv es on State Road 693 on a daily basis.

However, Petitioner does not use the median cut (described more

fully below) immediately adjacent to the sign.

4. The Department is the state agency charged with

regulating the placement of signs, structures, and l andscaping

within state road rights - of - way in a manner that does not

interfere with the safe and efficient movement of traffic on the

roads.

5. The City is an incorporated municipality of the State

of Florida. The City is located in southern Pinellas Co unty.

6. The City is very small. It is slightly more than one

mile long and approximately one - half mile wide, and it has

approximately 6,000 residents.

7. The main north/south thoroughfare through the City is

State Road 693. More than 33,000 vehicle s per day travel

through the City on State Road 693.

8. State Road 693 enters the "downtown" area of the City

over a small bridge at the northern end of New Corey Causeway.

The southern City limits are on the causeway, just north of the

bridge across the Intercoastal Waterway to St. Petersburg Beach.

The northern City limits are near the intersection of State Road

693 and Park Street.

9. There are several condominium complexes along State

Road 693 between the City's southern boundary and the bridge

into the City's "downtown" area. A significant portion of the

City's residents live in those condominiums.

B. The Sign's Characteristics and Location

10. In October 2001, the Department gave "conceptual

approval" to the City's plan to construct a "gateway" sign on a

median within the right - of - way of State Road 693. In doing so,

the Department indicated its willingness to make an "exception"

to its policy that such signs be located at or in proximity to

the City limits. The basis of the exception was that the

Department believed (or was led to believe) that there was

insufficient right - of - way in the area of the City limits for

such a sign and that "the first urban environment encountered is

near the proposed location."

11. The general concept for the erect ion of a "gateway" or

entryway sign appears to have come from a Vision Plan prepared

by the City with the input of its citizens and others in 1999.

12. On June 12, 2002, the City formally submitted to the

Department an application for a special use permit in order to

erect and maintain a sign (which the City refers to as "mural")

on the median within State Road 693 just north of the

intersection of State Road 693 and Shore Drive/Matthews Road.

The application included a map identifying the proposed locati on

of the sign as well as drawings which showed the dimensions and

appearance of the sign.

13. The sign is a large concrete structure. As built, it

is more than 21 feet long, more than 15 feet high, and more than

3 feet wide. These dimensions are sligh tly more than the

dimensions set forth in the application.

14. Both sides of the sign are covered by a mosaic

depicting waves, dolphins jumping out of the water, a manatee, a

sailboat, and the City's logo which includes the name of the

City, the City's se al, and the City's motto ("our place in the

sun").

15. The City's logo is located in a small area at the top

of the sign. The City's name and motto are in dark blue and

they blend into the light blue background of the sign. As a

result, it is somewhat difficult to read the City's name on the

sign from a distance.

16. The median on which the sign is located is surrounded

by a six - inch non - mountable curb.

17. As built, the sign is located more than 13 feet from

the back of the curb of the southbound travel lanes of State

Road 693, and is located more than 25 feet from the back of the

curb of the northbound lanes. The sign is located approximately

77 feet south of the median cut described below.

18. The sign is located in the middle of the City in w hat

appears to be the City's "downtown" area. The sign is

approximately one - half mile north of the City's southern

boundary and approximately seven - tenths of a mile south of the

City's northern boundary.

19. At the location of the sign, State Road 693 is a

multi - lane highway divided by the median. The southbound

portion of the road consists of two through lanes and dedicated

right and left turn lanes. The northbound portion of the road

consists of three through lanes. The posted speed limit on that

portion of State Road 693 is 35 miles per hour.

20. There are traffic signals at the intersection of State

Road 693 and Shore Drive/Matthews Road, which is immediately to

the south of the median. A median opening (or "median cut") is

located on the nor th side of the median. There is no signal at

the median cut.

21. The median cut is used by southbound vehicles to turn

left into businesses located across the northbound travel lanes

of State Road 693 and to make U - turns into the northbound travel

lanes. The median cut is also used by northbound vehicles

(including emergency vehicles accessing the adjacent Pasadena

Palms Hospital) to make U - turns into the southbound travel lanes

of State Road 693 and by vehicles turning left onto southbound

State Road 69 3 from businesses along the northbound travel

lanes.

22. The sign does not affect northbound emergency vehicles

which make U - turns in the median cut to facilitate their access

into the hospital's entrance. In such circumstances, the sign

is behind the ve hicle and therefore could not interfere with the

view of oncoming southbound traffic. Similarly, the location of

the sign does not interfere with the ability of a southbound

vehicle to see emergency vehicles that might access the

hospital's entrance by tu rning left across southbound State Road

693 at the signalized intersection of State Road 693 and

Matthews Road/Shore Drive.

23. Prior to the construction of the sign, the median was

covered with large trees and other vegetation. In some areas,

the veget ation was quite dense. Much of the vegetation was

removed for the construction of the sign. As a result, the

overall visibility through the median is better now than it was

before the construction of the sign.

C. Department's Review of the Permit Applic ation

24. After receiving the City's application, the Department

staff inspected the proposed location and reviewed the

application based upon the criteria for "customized place name

signs" in the Department's Traffic Engineering Manual. The

Department staff determined that those criteria were the most

applicable because the sign was proposed to include the City's

name and logo and because it was represented to be located near

the City's geographic boundary.

25. Among other things, customized place name signs are

required to meet the Department's clear zone requirements and

safety criteria.

26. The clear zone requirements are set forth in the

Department's Plans Preparation Manual. The clear zone is an

area adjacent to the travel lanes of a road where n o fixed

objects are to be located so that a vehicle which runs off the

road will be able to recover and return to the road without

striking anything.

27. The width of the clear zone varies based upon the

posted speed limit of the road and the presence or absence of a

curb on the road. Where there is a curb, the clear zone must be

at least four feet from the back face of the curb.

28. Structures are generally not permitted to be located

in the clear zone, but if they are, they must be designed to

break a way on impact. Structures not located in the clear zone

are not required to be designed to break away on impact.

29. The safety criteria applicable to the sign are the

sight - distance criteria contained in Standard Index 546. The

sight - distance criteria are intended to ensure that a structure

or object within the right of way will not interfere with the

motorists' clear line of sight necessary to permit safe and

efficient use of the road. More specifically, the sight -

distance criteria are intended to ens ure that a vehicle turning

into or across oncoming traffic will have a clear line of sight

of the oncoming traffic for at least a specified minimum

distance, which varies based upon the speed limit of the road.

30. The Department staff determined based up on a review of

the application materials and an on - site inspection of the

proposed location of the sign that the sign met the Department's

requirements for a custom place name sign, including the clear

zone and sight - distance requirements. Accordingly, on June 26,

2002, the Department issued the Permit to the City.

31. Despite the issuance of the Permit, the Department

staff continued to review the project after the Permit had been

issued. That supplemental review was in direct response to

concerns raise d by Petitioner through correspondence with the

Department staff. Specifically, Petitioner expressed concerns

that the sign would constitute a safety hazard as a result of

its size, its placement in the median of a heavily - traveled

road, and its location in proximity to Pasadena Palms Hospital.

32. The supplemental review resulted in additional permit

conditions as reflected in a July 31, 2002, e - mail from the

Department to the City's director of public works. In that e -

mail, the Department directed the City to submit a sight -

distance analysis prepared by an engineer and further directed

the City to remove the "existing South Pasadena city limit

signing heading [northbound] on S.R. 693 between the

intercoastal bridge and the proposed location."

33. The s ight - distance analysis was conducted by Bob

Brown, a professional engineer with expertise in sight - distance

calculation and analysis. Mr. Brown performed an evaluation in

the field with respect to each location that might potentially

be impacted by the si gn from a sight - line standpoint, including

the intersection of State Road 693 and Shore Drive/Matthews

Road, the median cut, and northbound and southbound through

traffic in the vicinity of the sign.

34. Mr. Brown's analysis determined that the only

poten tial area of concern from a sight - line standpoint was for a

southbound vehicle in the median cut making a left turn across

the northbound lanes of State Road 693 or performing a U - turn

into the northbound lanes. Even in the median cut, however,

Mr. Brown' s sight - distance analysis shows (consistent with the

initial analysis conducted by the Department staff) that the

location of sign provides sufficient sight - lines to meet the

requirements of Standard Index 546. Stated another way, even

with the sign locat ed in the median, the available sight - lines

meet the applicable Department requirements.

35. Mr. Brown's analysis is corroborated by the

photographs taken from a vehicle in the median cut which were

introduced at the hearing. Those photographs clearly s how that

a vehicle using the median cut would have a clear view of

oncoming traffic beyond the signalized intersection of Shore

Drive/Matthews Road and State Road 693.

36. With respect to the July 31, 2002, e - mail's reference

to the existing city limit s igns, there are actually two wooden

customized place name signs adjacent to the northbound lanes of

State Road 693. The first is located on the New Corey Causeway

several hundred feet south of the bridge that leads into the

City. The second is located ju st south of that bridge. Both of

those signs are closer to the southern City limits than the sign

at issue in this proceeding. As of the date of the hearing,

both signs were still in place.

37. There is also a wooden customized place name sign

adjacent to the southbound lanes of State Road 693 near the

intersection of State Road 693 and Park Street, which is the

City's northern boundary. As of the date of the hearing, that

sign is also still in place.

38. After discussions with the City, the Departme nt

changed its position, and by letter dated August 8, 2002, the

"Department's Traffic Operations Unit waived the removal of the

existing signs along state road 693." The rationale for that

decision was not explained in the letter or at the hearing.

39. The August 8, 2002, letter also authorized the City to

"proceed with construction of the mural." Thereafter, the City

began construction of the sign.

40. Construction of the sign was completed in October

2002, prior to the date of the hearing.

CONCLUSI ONS OF LAW

A. Jurisdiction and Scope of Proceeding

41. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursuant to Sections 120.569

and 120.57(1), Florida Statutes. (All references to Sections

and Chapters are to the Florida Statutes (2002). All references

to Rules are to the Florida Administrative Code.)

42. At the outset, it is important to note that questions

regarding the wisdom of the City's decision to construct the

sign (and the related expenditure of significant City funds) and

the consistency of the sign with the City's 1999 Vision Plan are

beyond the scope of this proceeding. Those are issues must be

resolved, if at all, between the City and its citizens at the

local level.

43. The scope of this proceeding (and this Recommended

Order) is limited to the propriety of the Department's issuance

of the Permit based upon the standards set forth in State law

and the Department's rules and policies, as well as Petitioner's

standing to challenge the Permit through the Chapter 120

process. The threshold issue of Petitioner's standing, which is

contested by both the Department and the City, will be addressed

first.

B. Standing

44. Administrative review of agency action is available to

a "party" whose "subs tantial interests" are determined by an

agency. See Section 120.569(1). Thus, Petitioner's standing to

seek administrative review of the Department's decision to issue

the Permit initially turns on whether he is a "party" as defined

in Section 120.52(12) .

45. Section 120.52(12) defines "party" to mean:

(a) Specifically named persons whose

substantial interests are being determined

in the proceeding.

(b) Any other person who, as a matter of

constitutional right, provision of statute,

or provision of agency regulation, is

entitled to participate in whole or in part

in the proceeding, or whose substantial

interests will be affected by proposed

agency action, and who makes an appearance

as a party.

(c) Any other person, including an agency

staff m ember, allowed by the agency to

intervene or participate in the proceeding

as a party. An agency may by rule authorize

limited forms of participation in agency

proceedings for persons who are not eligible

to become parties.

(d) Any county representati ve, agency,

department, or unit funded and authorized by

state statute or county ordinance to

represent the interests of the consumers of

a county, when the proceeding involves the

substantial interests of a significant

number of residents of the county an d the

board of county commissioners has, by

resolution, authorized the representative,

agency, department, or unit to represent the

class of interested persons. . . . .

46. Petitioner is not a specifically named person whose

substantial interests are be ing determined by the Department;

only the City is. Nor does the record reflect that Petitioner

is authorized by statute or local ordinance to represent the

interests of the City residents. Accordingly, Petitioner is not

a party under Section 120.52(12)( a) or (d).

47. Petitioner has not argued that he has a constitutional

right to seek review of the Department's decision to issue the

Permit, and he does not. Similarly, Petitioner has not cited

nor has the undersigned's research located any statue or

Dep artment rule which entitles him to participate in this

proceeding. For example, there is no statute or agency rule

requiring the Department to publish a "notice of intent" to

issue the permit at issue in this proceeding. Accordingly,

Petitioner is not a party under Section 120.52(12)(b) unless his

"substantial interests will be affected by [the] proposed agency

action."

48. The standards for determining whether a third - party

has standing to challenge an agency's decision to issue a permit

were set forth in Agrico Chemical Co. v. Department of

Environmental Regulation , 406 So. 2d 478 (Fla. 2nd DCA 1981),

rev. denied , 415 So. 2d 1359 (Fla. 1982). In that case, the

court explained that:

before one can be considered to have a

substantial interest in the outc ome of the

proceeding he must show 1) that he will

suffer injury in fact which is of sufficient

immediacy to entitle him to a section 120.57

hearing, and 2) that his substantial injury

is of a type or nature which the proceeding

is designed to protect. Th e first aspect of

the test deals with the degree of injury.

The second deals with the nature of the

injury.

Id. at 482. Accord Florida Soc. of Ophthalmology v. State Bd.

of Optometry , 532 So. 2d 1279 (Fla. 1st DCA 1988). 3

49. Subsequent cases have requi red the third - party to

demonstrate that he or she is substantially affected in a manner

different than the general public at large to establish

standing. See Grove Isle, Ltd. v. Bayshore Homeowners'

Association, Inc. , 418 So. 2d 1046, 1047 (Fla. 1st DCA 1 982),

rev. denied , 430 So. 2d 451 (Fla. 1983). And cf. City of

Sarasota v. Windom , 736 So. 2d 741 (Fla. 2nd DCA 1999) (holding

that plaintiffs lacked standing in circuit court to challenge

the placement of speed humps and tables on various city streets

to reduce the volume and speed of traffic and to enhance

pedestrian safety because plaintiffs lived in different

neighborhoods in the city and were not required to travel on the

affected streets). But cf. Friends of the Everglades, Inc. v.

Board of Trustees of the Internal Improvement Trust Fund , 595

So. 2d 186, 189 (Fla. 1st DCA 1992) (rejecting "special injury"

requirement for purposes of establishing standing in a Section

120.57 proceeding where environmental group that requested a

hearing to challenge wh ether proposed use of state lands was

consistent with Section 253.023, Florida Statutes).

50. Petitioner failed to demonstrate that he will suffer

an immediate injury as a result of the Department's decision to

issue the Permit. Indeed, Petitioner fail ed to show that he

will suffer any injury as a result of the issuance of the Permit

and the construction of sign. Although he frequently drives on

State Road 693, he does not use the median cut which is the only

traffic movement conceivably affected by th e sign. In this

regard, Petitioner's general concerns regarding the sign's

impacts on the safety of traffic flow on State Road 693 (while

clearly the type of injury the Department's statutory scheme is

designed to prevent) are no different than the intere sts of the

general public. See Grove Isle , supra . And cf. Boca Raton

Mausoleum, Inc. v. State, Dept. of Banking and Finance , 511

So. 2d 1060, 1066 (Fla. 1st DCA 1987) (taxpayer's general

concerns regarding the effect of a proposed cemetery upon the

commu nity was not sufficient to give him standing to participate

in the permitting process or challenge the issuance of the

cemetery permit; taxpayer's concerns are more appropriately

addressed to local zoning authorities). Because Petitioner

failed to demonst rate that his substantial interests would be

affected by the Department's issuance of the Permit, he is not a

party under Section 120.52(12)(b).

51. With respect to Section 120.52(12)(c), the Department

clearly did not acquiesce to the Petitioner's partic ipation in

this proceeding. See Department PRO, at 7 ("The Department has

contended from the beginning of this proceeding that

[Petitioner] lacks standing to request a hearing to review the

permit decision."). The Department did, however, allow

Petitione r to become involved in the permitting process.

Indeed, it was Petitioner's involvement in the process which

ultimately led the Department to require the City to submit a

sight - distance analysis prepared by an engineer. Nevertheless,

Section 120.52(12)(c ) appears to require some sort of formal

authorization to "participate," which Petitioner lacks in this

case. See Florida Society of Opthamology , 532 So. 2d at 1288

(considering but rejecting a standard that would provide

standing to persons who simply pa rticipated in the permitting

process based upon a personal concern); City of Key West v.

Askew , 324 So. 2d 655, 659 (Fla. 1st DCA 1975) (involving a

circumstance where agency formally allowed petitioners to

participate in agency proceeding). Accordingly, Petitioner is

not a party under Section 120.52(12)(c).

52. Even if Petitioner were considered to be a party under

Section 120.52(12)(c) based upon his participation in the

permitting process, that does not automatically give him

standing in this proceedin g because, as noted above, standing is

limited to parties whose "substantial interests" are determined

by the agency. See Section 120.569(1). Stated another way,

even if Petitioner were considered a party under Section

120.52(12)(c), he must still demons trate that his "substantial

interests" are determined by the Department's issuance of the

Permit. Cf. Legal Environmental Assistance Foundation, Inc. v.

Clark , 668 So. 2d 982, 987 (Fla. 1996) (to have standing to

appeal final agency action, person must be a party and must be

adversely affected by the agency action). As discussed above,

Petitioner failed to prove that his substantial interests are

affected based upon the test set forth in Agrico . Accordingly,

Petitioner lacks standing to challenge the Per mit in this

proceeding even if he were considered a party under the

definition in Section 120.52(12)(c).

53. In sum, because Petitioner is not a "party" as defined

in Section 120.52(12) and/or because Petitioner's "substantial

interests" are not determine d by the Department's issuance of

the Permit, Petitioner lacks standing to seek review of the

Permit under Sections 120.569 and 120.57(1).

C. Merits of Petitioner's Challenge to the Permit

54. The Department and the City argue that Petitioner has

the bu rden to demonstrate the inconsistency of the Permit with

the Department's statutes, rules, and policies. See Department

PRO, at 10; City PRO, at 8. This argument appears to be based

upon the premise that the Permit has been issued and the sign

has been c onstructed and, therefore, Petitioner is the party

seeking to change the status quo. This argument is correct as

far as it goes.

55. If, contrary to the determination above, it is

determined (either by the Department in its final order or by an

appella te court) that Petitioner is a party whose substantial

interests were affected by the issuance of the Permit, then the

Department was obligated to provide him a point of entry to

challenge it's decision to issue the Permit before it became

final. See Sect ion 120.569(1); Rule 28 - 106.111; Florida League

of Cities, Inc. v. Administration Comm'n , 586 So. 2d 397, 413 - 15

(Fla. 1st DCA 1991) ("The policy behind the requirement of a

clear point of entry is to assure that affected parties are not

prejudiced by admi nistrative action without being afforded an

opportunity to pursue an available and adequate remedy."). Had

the Department been required to provide Petitioner with notice

of its intent to issue the Permit, Petitioner's challenge would

have been governed by Department of Transportation v. J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981), and the City

would have the burden to prove its entitlement to the Permit in

this proceeding. However, in light of the determination above

that Petitioner was not a par ty, the Department was not

obligated to provide him a point of entry to challenge the

Permit prior to its issuance and, as a result, Petitioner has

the burden of proof in this proceeding.

56. The proper allocation of the burden of proof in this

proceedin g is not determinative. Indeed, to the extent that the

burden was on the Petitioner to prove that the Department

improperly issued the Permit based upon the criteria in Section

2.7.6 of the Department's Traffic Engineering Manual (TEM), he

did so; and, to the extent that the burden was on the City to

prove its entitlement to the Permit under TEM 2.7.6, it failed

to do so. Specifically, as discussed below, although the

preponderance of the evidence demonstrates that the sign will

not interfere with the saf e and efficient movement of traffic on

State Road 693, the preponderance of the evidence further

demonstrates that the sign fails to meet several of the

requirements in TEM Section 2.7.6, most significantly the

requirement in TEM Section 2.7.6(4) that the sign be located "at

or in proximity" to the City limits.

57. Section 334.044 grants the Department broad authority

to coordinate the state transportation system. See , e.g. ,

Section 334.044(10) (authorizing the Department to adopt uniform

standards and c riteria for the construction, design,

maintenance, and operation of state roads). And see Sections

316.0745 and 335.09 (authorizing the Department to adopt uniform

standards for signs and other traffic control devices for the

regulation, control, guidance and protection of traffic on the

State Highway System); Section 337.407 (authorizing the

Department to regulate the erection of signs within the rights

of way of the State Highway System pursuant to Chapter 479,

Florida Statutes). While the Department ha s considerable

discretion in exercising its authority, that discretion is not

absolute. See Dept. of Transportation v. Lopez - Torres , 526 So.

2d 674, 676 (Fla. 1988); Department PRO, at 10. Where, as here,

the Department has formal written policies to gui de the exercise

of its discretionary authority, it must comply with those

policies, and its failure to do so constitutes an abuse of

discretion. See , e.g. , Vantage Healthcare Corp. v. Agency for

Health Care Admin. , 687 So. 2d 306, 308 (Fla. 1st DCA 1997), and

cases cited therein; Cleveland Clinic Florida Hosp. v. Agency

for Health Care Admin. , 679 So. 2d 1237, 1241 - 42 (Fla. 1st DCA

1996).

58. Neither the City nor the Department has cited any

rules in the Florida Administrative Code which prescribe

stand ards for the issuance of permits for signs such as the one

at issue in this proceeding, and the undersigned's research has

not located any. Compare Rules 14 - 10.0022 through 14 - 10.007

(prescribing standards for the issuance of permits for signs

subject to Chapter 479, and establishing other requirements for

such signs); Rule 14 - 40.003 (prescribing standards for highway

landscape projects and including a definition of landscaping

that includes man - made amenities in addition to vegetation).

The Department di d not evaluate the City's permit application

under those rules. In light of the nature and general location

of the sign (and the City's characterization of the sign as a

"gateway" or entryway sign), the Department did not abuse its

discretion in evaluatin g the permit application based upon the

policies governing "customized place name signs" rather as an

outdoor advertising sign under Chapter 479 4 and Rule Chapter 14 -

10 or a landscaping project subject to the requirements of Rule

14 - 40.003.

59. TEM Secti on 2.7, which was received into evidence as

Exhibit R6, establishes the standards for erecting place name

signs on state roads. The entire TEM is not specifically

incorporated by reference into any Department rule; Rule 14 -

15.015 incorporates only Section 2.16 of the TEM. Accordingly,

the remainder of the TEM appears to be a non - rule policy which

the Department must "prove up" each time it is applied. See

Section 120.57(1)(e). Neither Petitioner nor the City

challenged the validity of the TEM in this pr oceeding, so to the

extent that the Department was required to "prove up" the

policies in the TEM it is deemed to have has done so.

60. The sign at issue in this proceeding qualifies as a

"customized" place name sign, rather than a standard place name

si gn which is described in TEM Section 2.7.5 as a sign having a

white legend on a green rectangular background. Accordingly,

TEM Section 2.7.6 applies and the sign must meet the following

requirements:

(1) Customized treatment shall be

considered only fo r city limits,

incorporated municipalities, and counties on

State Highways other than limited access

highways or freeways.

(2) Place name signs located off the

State Highway right of way shall conform to

Section 479.16(12), F.S.

(3) The preferred l ocation of customized

place name signs is off the State Highway

right of way, where increased lateral

clearance can be used. When additional

right of way is not available, the

Department should authorize placement of the

sign within State Highway right of way.

Sufficient lateral clearance is particularly

important for custom place name signs due to

nonstandard designs and sizes.

(4) The sign and structure or other

treatment shall be located at or in

proximity to the geographical boundary of

the city or county in the approach direction

only.

(5) The proposed installation will not

interfere in any manner with other traffic

control devices in the area.

(6) Existing city limit or county

boundary signs and/or nonofficial signs or

structures at or nea r the location shall be

removed.

(7) All signs and supporting structures

shall be designed, constructed, and

installed to meet the Department’s clear

zone and safety criteria including breakaway

features. The design shall be signed and

sealed by a Pro fessional Engineer registered

in the State of Florida.

(8) Sign size and lettering shall be

appropriate for driver readability without

slowing down.

(9) Sign information shall be limited to

the name of the city or county logo, the

words “Welcome To ”, and where appropriate, a

regional designation or phrase.

(10) The sign and structure shall be

completely devoid of any commercial

advertising or the name of any political

incumbent and of such design and color as to

be considered in good taste and

a esthetically pleasing.

(11) The primary location for custom

place name signs shall be along the roadside

behind curb and gutter sections. Medians

should only be considered if other roadside

locations, either on or off State Highway

rights of way, are not practical nor

possible.

(12) Installations in any median shall

meet the Department’s appropriate clear zone

and safety criteria. Signs shall not be

installed in both the median and roadside at

a given location.

(13) Displays shall be fixed. N o

flashing or colored lights nor changeable

messages shall be used. However, customized

treatment may include interior or exterior

illumination. In the absence of lighting,

signs shall be reflectorized.

(14) Upon approval of a customized place

name s ign request, the Department and the

local government shall execute an agreement

providing for the local government to

install and maintain the customized

sign/sign supports and all landscaping and

shrubbery associated with the installation

as well as to de fray the cost of any

electrical energy necessary for operation of

the sign display. The agreement shall

clearly indicate that the Department

reserves the right to have the installation

modified or removed from within the State

Highway rights of way if dee med necessary

for any reason.

TEM Section 2.7.6.

61. The City is incorporated, and is located along State

Road 693. State Road 693 is part of the State Highway System

and is not a limited access highway or freeway. Accordingly,

the Sign meets the requ irements of TEM Section 2.7.6(1).

62. TEM Section 2.7.6(2) applies only to signs located

"off the . . . right of way." The sign at issue in this

proceeding is located within the right - of - way. Therefore, TEM

Section 2.7.6(2) is not applicable. 5

63. TEM Section 2.7.6(3) provides that the "preferred

location" for customized place name signs is off the right - of -

way. However, that section authorizes placement of the sign

within the right - of - way if sufficient lateral clearance is

provided. The preponder ance of the evidence demonstrates that

sufficient area outside the right - of - way is not available in the

vicinity of the median where the sign is located and that

sufficient lateral clearance exists with the sign at its present

location. In this regard, th e sign is more than 13 feet from

State Road 693 at its closest point. Accordingly, to the extent

that the median where the sign is located is determined to be an

appropriate location for the sign based upon the other criteria

in TEM Section 2.7.6 (which, as discussed below, it is not), the

sign meets the requirements of TEM Section 2.7.6(3).

64. TEM Section 2.7.6(4) provides that the sign shall be

located "at or in proximity to the geographic boundary of the

city . . . in the approach direction." At the outset, it is not

apparent which direction is the "approach direction" for the

sign because it is nearly equal distance from the City's

northern and southern boundaries. Because the focus of the

hearing was on the impact of the sign on the sight - lines of

vehicles traveling southbound and, because both sides of the

sign (including the north side which faces southbound traffic on

State Road 693) include a mosaic, the approach direction could

be considered southbound. However, the Department apparently

cons iders the "approach direction" to be northbound because the

basis of the Department's original "conceptual approval" of the

sign was that the Department assumed (incorrectly, as discussed

below) that the bridge into the City's "downtown" area from the

New Corey Causeway was the City limits and that the "downtown"

area was the first urban area within the City encountered by a

vehicle traveling northbound on State Road 693. The conclusion

that northbound is the "approach direction" is bolstered by the

Depart ment's initial mandate (which was later "waived") that the

City remove the existing place name signs located adjacent to

the northbound lanes of State Road 693. No matter which

direction is considered the "approach direction," the sign is

not "at or in pr oximity to" the City limits in either direction.

65. Clearly, the Sign at issue in this proceeding is not

located "at" the City's geographic boundary. It is

approximately seven - tenths of a mile from the City's northern

boundary (State Road 693 and Park S treet) and approximately one -

half mile from the City's southern boundary (on the New Corey

Causeway at the north end of the Intercoastal bridge to

St. Petersburg Beach).

66. The TEM does not define "in proximity," so it should

be given its plain and ord inary meaning. See Southwest Florida

Water Management Dist. v. Save the Manatee Club, Inc. , 773

So. 2d 594, 599 (Fla. 1st DCA 2000). "Proximate" (from which

the word "proximity" is derived) is defined to mean "immediately

preceding or following" or "very near." See Mirriam - Webster's

Online Dictionary , at www.m - w.com. In light of those

definitions, it is clear that the sign is not "in proximity to"

the City's boundaries; indeed, the sign is located approximately

in the middle of the City.

67. The Depart ment staff's decision to make an "exception"

to the locational requirement in TEM Section 2.7.6(4) was

erroneous as a matter of fact and law. Specifically, the

Department staff was under the erroneous belief that the City's

southern boundary was at the br idge between the causeway and the

City's "downtown" area and that the area around the median was

the first urban area that a northbound vehicle on State Road 693

would encounter. The preponderance of the evidence at the

hearing demonstrates that the City' s southern boundary is

approximately one - half mile south of the City's "downtown" area

at the northern end of the bridge over the Intercoastal to

St. Petersburg Beach (which is a different bridge than the one

leading into the City's "downtown" area), and t he preponderance

of the evidence further demonstrates that there are several

condominium complexes between the City's southern boundaries and

the City's "downtown" area.

68. Moreover, as a matter of law, neither the City nor the

Department has identifie d any legal authority which would give

the Department staff authority to "make an exception" to the

requirements of TEM Section 2.7.6(4). While Section 120.542

does authorize agencies to grant variances or waivers to their

rules, the record fails to demon strate that the procedures in

that section were followed in this case. Accordingly, the

"exception" granted by the Department staff is legally

ineffective, and because the sign is not located "at or in

proximity to" the City limits, it fails to meet the r equirements

of Section 2.7.6(4).

69. TEM Section 2.7.6(5) provides that the sign must not

interfere with traffic control devices in the area. The

preponderance of the evidence demonstrates that the sign will

not interfere with the traffic signals at the intersection of

State Road 693 and Shore Drive/Matthews Road nor any other

traffic control device in the area. Accordingly, the sign meets

the requirements of TEM Section 2.7.6(5).

70. TEM Section 2.7.6(6) requires existing city limit

signs "at or near the location" to be removed. There are no

such signs "at" the location of the sign at issue in this

proceeding. There are, however, existing place name signs on

State Road 693, both north and south of the location of the sign

at issue in this proceeding which are closer to the City limits.

To the extent that the Department considers the sign at issue in

this proceeding to be "in proximity to" the City limits, it

would also have to consider the existing signs to be "near" the

location of the new sign. A ccordingly, TEM Section 2.7.6(6)

would require those signs to be removed. 6 If, however, the

Department agrees with the determination above that the sign at

issue in this proceeding is not "at or in proximity to" the

City's boundaries, then it follows that the existing signs are

not "at or near" the current sign and they would not need to be

removed.

71. TEM Section 2.7.6(7) requires the sign to be

"designed, constructed and installed" to meet the Department's

clear zone and safety criteria. Because the median is

surrounded by a six - inch mountable curb, the applicable clear

zone requirement is four feet from the back of the curb. See

Plans Preparation Manual, Section 4.1.2 and Table 2.11.8

(received as Exhibit R8). The sign is located more than 13 feet

from the back of the curb at its closest point. Therefore, the

sign meets the Department's clear zone requirements, and because

the sign is located outside of the clear zone, it is not

required to be designed to break away on impact. The

preponderance of the evidence (particularly Mr. Brown's analysis

in Exhibit R10) also demonstrates that the sign meets the

Department's sight - distance requirements, which are the safety

criteria referenced in TEM Section 2.7.6(7). Accordingly, the

Sign meets the requirem ents of TEM Section 2.7.6(7).

72. TEM Section 2.7.6(8) requires the sign size and

lettering to be appropriate for driver readability without

slowing down. The lettering on the sign takes up only a small

portion of the sign's face, and the location of th e words on the

sign and their coloring make them difficult to read

(particularly in comparison to the existing place name signs

depicted in Exhibit P12). In this regard, neither the City nor

the Department presented any credible evidence to rebut

Petition er's testimony that the sign is difficult to read when

driving past it; indeed, Petitioner's testimony is corroborated

by the photographs of the sign introduced by the City and the

Department and by the hearsay statement of another City resident

regarding her inability to "see the words 'South Pasadena' when

passing" the sign. Accordingly, the preponderance of the

evidence demonstrates that the sign fails to meet the

requirements of TEM Section 2.7.6(8).

73. TEM Section 2.7.6(9) limits the information wh ich can

be displayed on a customized place name sign. The only words on

the sign at issue in this proceeding are the name of the City

and its motto, "our place in the sun." Accordingly, the sign

meets the requirements of TEM Section 2.7.6(9).

74. TEM S ection 2.7.6(10) prohibits commercial and

political advertising on the sign and requires the sign to be in

good taste and to be aesthetically pleasing. The sign contains

no commercial or political advertisements, and Petitioner has

not alleged that the si gn is not aesthetically pleasing.

Accordingly, the sign meets the requirements of TEM Section

2.7.6(10).

75. TEM Section 2.7.6(11) provides that the primary

location for a customized place name sign is along the roadside,

and further provides that "[m]e dians should only be considered

if other roadside locations, either on or off State Highway

rights of way, are not practical nor possible." The

preponderance of the evidence fails to demonstrate that another

location for a customized place name sign was n ot practical or

possible. While there may not be any other location for a sign

of the size of the sign constructed by the City, that is not the

standard in TEM Section 2.7.6(11); the standard is whether other

locations are practical or possible for a cust omized place name

sign of some kind. Clearly, there are other locations for

customized place name signs along State Road 693 because three

such signs currently exist. Accordingly, the sign fails to meet

the requirements of TEM Section 2.7.6(11).

76. TE M Section 2.7.6(12) requires structures located in

medians to meet the Department's clear zone and safety criteria.

As discussed above in relation to TEM Section 2.7.6(7), the

preponderance of the evidence demonstrates that the sign meets

the clear zone a nd sight - distance requirements. Accordingly,

the sign meets the requirements of TEM Section 2.7.6(12).

77. TEM Section 2.7.6(13) provides that displays shall be

fixed, contain no flashing lights or changeable messages, and

shall be reflectorized if not illuminated. The sign clearly

contains a fixed display, but the record does not reflect

whether the sign is illuminated or whether it is reflectorized.

However, because Petitioner did not expressly challenge the

issuance of the Permit on this ground, it is unnecessary to

determine whether the sign meets the requirements of TEM Section

2.7.6(13).

78. TEM Section 2.7.6(14) provides that upon approval of a

customized place name sign request, the Department and the local

government shall execute an agreemen t requiring the local

government to maintain the sign and any associated landscaping.

The record does not reflect whether such an agreement was

entered into between the City and the Department; however,

because Petitioner did not expressly challenge the i ssuance of

the permit on this ground, it is unnecessary to determine

whether the sign meets the requirements of TEM Section

2.7.6(14).

79. Finally, it is important to note that TEM Section

2.7.6(14) requires the agreement to reflect that the Department

r eserves the right to "have the [sign] modified or removed from

within the State Highway rights of way if deemed necessary for

any reason." This language put the City on notice that its sign

may be subject to removal. In light of determinations set forth

above that the sign should never have been permitted at its

present location, the sign should be removed unless the

Department grants the City an after - the - fact variance or waiver

pursuant to Section 120.542 for those requirements in the TEM

that the sign fails to meet.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Transportation issue a

final order which dismisses Petitioner's challenge to special

use permit No. 02 - K - 799 - 0021 ba sed upon his lack of standing.

If, however, the Department rejects that recommendation in

its final order and instead determines that Petitioner does have

standing, then the Department should issue a final order which:

(1) determines that special use perm it No. 02 - K - 799 - 0021

was not properly issued because the sign fails to meet the

requirements of Section 2.7.6 of the Department's Traffic

Engineering Manual; and

(2) directs the City to remove the sign unless it obtains

a variance or waiver of those requi rements in Section 2.7.6 of

the Traffic Engineering Manual with which it does not comply

pursuant to Section 120.542, Florida Statutes.

DONE AND ENTERED this 31st day of December, 2002, in

Tallahassee, Leon County, Florida.

_______________________________ ____

T. KENT WETHERELL, II

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 2002.

ENDNOTES

1/ Petitioner also called Robert Hicks as a witness, but Mr.

Hicks was not permitted to testify because the subject - matter of

his testimony (as it was represented by Petitioner) was not

directly relevant to issues in this proceeding. Petitioner was

given an opportunity to make a proffer of Mr. Hicks testimony

for the record, but he chose not to do so.

2/ Petitioner did not formall y offer Exhibit P5 as an exhibit

at the hearing, and the undersigned has not considered it in

preparing this Recommended Order. However, because the exhibit

was discussed at length at the hearing, it is included as part

of the record transmitted to the De partment herewith.

3/ In Florida Society of Opthamology , the court acknowledged

but rejected the broader view of standing advocated by Professor

Pat Dore, a noted scholar on Florida's Administrative Procedure

Act. Professor Dore suggested that standing should be afforded

to:

any person whose important or significant

personal concerns will be acted on or

changed in some way in a proceeding in which

he makes an appearance and in which the

substantial interests of a party are

decided, settled, or resolved finally by an

agency[.]

Florida Society of Opthamology , 532 So. 2d at 1288 n.10 (quoting

Dore, Access to Florida Administrative Proceedings , 13 Fla. St.

L. Rev. 967, 1065 (1986)). Petitioner meets that test; however,

that test is not the law.

4/ Indeed , the definition of "sign" in Chapter 479 specifically

excludes "an official traffic control sign, official marker, or

specific information panel erected, caused to be erected, or

approved by the department." See Section 479.01(17).

5/ TEM Section 2.7.6 (2) is counterintuitive because it requires

signs located off the right of way to conform to Section

479.16(12) which limits the size of the sign to eight square

feet while imposing no similar size limitation on place name

signs within the right - of - way.

6 / For the reasons discussed above in connection with TEM

Section 2.7.6(4), the Department staff's purported "waiver" of

this requirement is legally ineffective.

COPIES FURNISHED :

Robert M. Burdick, Esquire

Department of Transportation

605 Suwannee Stre et

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

Dan Calabria

7068 South Shore Drive, South

South Pasadena, Florida 33707

Linda M. Hallas, Esquire

City of South Pasadena

7047 Sunset Drive, South

South Pasadena, Florida 33707

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

Pamela Leslie, General Counsel

Department of Transportation

605 Suwannee Street

Haydon Bur ns Building, 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.