06-003683 City Inn Hotel vs. Department Of Transportation Status: Closed Recommended Order on Friday, September 28, 2007.

Summary: Wall murals on a building that was visible from the interstate were illegally erected signs because they were erected without permits. Recommend that the signs be removed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY INN HOTEL, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3683

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on July 17, 2007, by video teleconference, with the Petitioner

appearing in West Palm Beach, Florida, and the Respondent

appearing in Tallahassee, Florida, before Patricia M. Hart, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearin gs, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Daniel Alter, Esquire

Gray Robinson P.A.

401 East Las Olas Boulevard, Suite 1850

Fort Lauderdale, Florida 33301

For Respondent: Susan Swartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

S TATEMENT OF THE ISSUE

Whether the Petitioner displayed illegally erected sign s ,

as set forth in the Amended Notice of Violation - Illegally

Erected Sign dated June 23, 2006.

PRELIMINARY STATEMENT

In an Amended Notice of Violation - Illegally Erected Sign

dated June 23, 2006, the Department of Transportation

("Department") notified Malibu Lodging Investments, LLC, d/b/a

City Inn Hotel ("Malibu Lodging Investments/City Inn Hotel")

that outdoor advertising signs on a building it "owned,

maintained, or operate d" were displayed without a permit in

violation of Section 479.07(1), Florida Statutes (2006) 1 and that

the signs were to be r emoved within 30 days of the date of the

notice. Malibu Lodging Investments/City Inn Hotel timely

requested an administrative hea ring, and the Department

forwarded the matter to the Division of Administrative Hearings

for assignment of an administrative law judge. After several

continuances, the final hearing was held on June 5, 2007.

At the hearing, the Department offered the test imony of

Lynn Holschuh, Mark Johnson, and John Garner. Malibu Lodging

Investments/City Inn Hotel offered the testimony of Judah

Burstyn. Joint Exhibits 1 through 15 were offered and received

into evidence. Official recognition was taken of 2007 Florida

Laws HB 985, Sections 61 through 64.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on July 24, 2007. After

two requests for extensions of time were granted, the parties

timely filed findings of fact an d conclusions of law, which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings o f fact are made:

1. The Department is the state agency responsible for

regulating outdoor advertising and for issuing permits for signs

located along interstate and federal aid primary highways

pursuant to Chapter 479, Florida Statutes, and Florida

Admini strative Code Chapter 14 - 10. See § 479.02, Fla. Stat.

2. Judah Burstyn is the p resident of Malibu Lodging LLC,

which owns the City Inn Hotel, a 200 - room hotel located at

660 Northwest 81st Street , Miami, Florida. Mr. Burstyn

describes the business of Ma libu Lodging Investments/City Inn

Hotel as a mixed - used real estate project.

3 . Malibu Lodging Investments/City Inn Hotel rents hotel

rooms and apartments in the City Inn Hotel property; it rents

rooftop space on top of the City Inn Hotel to cellular tele phone

companies; it owns a used car lot located at 8028 Northwest 6th

Court, Miami, Florida, adjacent to the hotel property; it rents

meeting space in the hotel to a church; it rents the hotel

banquet room and parking lot for special events; it rents offic e

space and storage space in the City Inn Hotel; and it rents the

use of portions of the City Inn Hotel property to tenants and

the public for special events.

4 . In Plain Sight Media, a Nevada corporation, is

principally engaged in the business of adverti sing and marketing

its clients' products. In Plain Sight Media is a full - service

media company that, among other things, designs, prints,

installs, and removes outdoor advertising for its clients. The

outdoor advertising primarily consists of images prin ted on

large sheets of self - adhesive vinyl that are affixed to the

exterior walls of buildings. In Plain Sight Media also designs

and distributes promotional materials for its clients and

assists its clients in direct sales of the clients' products.

It d oes not , however, engage in actual direct sales of its

clients ' products .

5 . Pursuant to a lease executed March 1, 2007, by Malibu

Lodging Investments/City Inn Hotel and In Plain Sight Media, In

Plain Sight Media leases office and other space in the City Inn

Hotel property from Malibu Lodging Investments/City Inn Hotel

for rent totaling $21,750.00 per month. The lease provides that

In Plain Sight Media has the right to "place advertising signage

on the [City Inn Hotel] premises at [In Plain Sight Media's]

discretion" and that In Plain Sight Media "shall use the

Property as a media, marketing and advertising company for

products having to do with Volkswagen, Vitamin Water and other

clients represented by [In Plain Sight Media], whose clients

promotional pro ducts and services are available on the [Malibu

Lodging Investments/City Inn Hotel] premises. "

6 . In Plain Sight Media employs an individual who is in

the office located in the City Inn Hotel from time to time, on

an as - needed basis. She is responsible f or answering the

telephone, responding to inquiries from the public about the

products of In Plain Sight Media's clients, organizing special

promotional events, and performing general office work.

7 . Malibu Lodging Investments/City Inn Hotel and In Plain

Sight Media also executed a Lease Agreement for Wallspace at or

about the end of January 2007, in which In Plain Sight Media

agreed to pay Malibu Lodging Investments/City Inn Hotel the

greater of $21,750.00 per month or 50 percent of In Plain Sight

Media's monthly ad revenue for the right to install and maintain

wall signage advertisements or displays on each of the north and

south exterior walls of the City Inn Hotel property at

600 Northwest 81st Street in Miami, Florida , for a minimum total

monthly rent o f $43,500.00 .

8 . According to the testimony of Mr. Burstyn and of Marc

Caldera, President of In Plain Sight Media, the March 1, 2007,

lease covering office, storage space, and the use of other space

in the City Inn Hotel and the adjacent parking lot and used car

lot operated to void the Lease Agreement for Wallspace. 2

9 . On June 23, 2006, when the Amended Notice of Violation

- Illegally Erected Sign was issued, large wall murals were

attached to the north, east, and south exterior wall s of the

City Inn H otel property advertising Heineken beer, Krieger

watches, and a "Read to Achieve” program promoted by the Miami

Heat basketball team. At the time of the final hearing in this

case, these wall murals had been replaced with two larger wall

murals on the nor th and south exterior wall s , each approximately

60 feet wide and 65 feet high. One wall mural featured a

picture of a Volkswagen automobile with the slogan , "Woe isn't

you. Dare to be happy," located on the south exterior wall of

the City Inn Hotel, and the other featured a picture of a bottle

of Vitamin Water and Shaquille O'Neal with the slogan "diesel

power it works . . . for shaq," on the north exterior wall .

Both of the banners were created, installed, and maintained by

In Plain Sight Media.

10 . Gu ests at the City Inn Hotel sometimes purchase an

automobile from the used car lot located adjacent to the City

Inn Hotel and owned by Malibu Lodging Investments/City Inn

Hotel. Volkswagen automobiles are, from time to time, available

for rent or for sale on this car lot.

11 . In Plain Sight Media sells Vitamin Water from a

vending machine inside the City Inn Hotel property, and Malibu

Lodging Investments/City Inn Hotel receives a percentage of the

revenue from the vending machine sales. If anyone asks abo ut

Vitamin Water at the In Plain Sight Media office in the City Inn

Hotel, during the time the office is staffed, information about

the product and promotional material is available.

12 . The wall murals installed on the north and south

exterior wall s of t he City Inn Hotel property have generated

inquiries to In Plain Sight Media from persons interested in its

advertising and/or marketing services , and Mr. Burstyn believes

that the wall murals have increased foot traffic in the City Inn

Hotel.

13 . Both of the wall murals installed on the exterior

walls of the City Inn Hotel are visible from Interstate 95 and

are located within 660 feet of the right - of - way for that federal

highway .

14 . Neither In Plain Sight Media nor Malibu Lodging

Investments/City Inn Hot el has applied to the Department for, or

obtained, outdoor advertising permits for these wall murals .

15 . The wall murals on the exterior walls of the City Inn

Hotel property are signs that advertise Volkswagen automobiles

and Vitamin Water. As such, the y cannot be displayed without an

outdoor advertising permit.

16 . The wall murals do not advertise In Plain Sight Media

or the City Inn Hotel , nor do they identify any merchandise or

service offered as part of the principal business activity of

either In P lain Sight Media or the City Inn Hotel.

17 . T here is currently no agreement explicitly giving

Malibu Lodging Investments/City Inn Hotel the right to receive

rental income attributed to outdoor advertising attached to the

exterior walls of the City Inn Hot el. T he March 1, 2007, lease

gives In Plain Sight Media the right to "place advertising

signage" on the City Inn Hotel property, and it is reasonable to

infer that a portion of the $21,750.00 per month rent paid to

Malibu Lodging Investments/City Inn Hote l by In Plain Sight

Media includes rent for the use of the exterior walls of the

City Inn Hotel for advertising signage . This inference is

supported by the terms of the lease executed in January 2007 ,

which provided for In Plain Sight Media to pay Malibu Lodging

Investments/City Inn Hotel a minimum of $43,500.00 in rent for

nothing more than the right to affix advertising wall murals on

the exterior surfaces of the north and south wall s of the City

Inn Hotel .

18 . Wall murals have been attached to the exte rior walls

of the City Inn Hotel since at least the early 1990's.

19 . Malibu Lodging Investments/City Inn Hotel elicited

evidence from the Department's witnesses relating to the

withdrawal of a notice of violation for an illegal, unpermitted

wall mural ad vertising "Continuum II." The notice of violation

was withdrawn by the Department because it determined that the

sign advertised a project that was to be developed on the site

where the wall mural was displayed. When the "Continuum II"

wall mural was rep laced with a wall mural advertising Fiji

water, a notice of violation was issued for that unpermitted

sign.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties ther eto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2007).

21 . Because the Department has charged Malibu Lodging

Investments/City Inn Hotel with maintaining unpermitted and,

therefore, illegal signs on its property, it bears the burden of

pr oving by a preponderance of the evidence that the signs are

illegal. See Florida Department of Transportation v. J.W.C.

Co., Inc. , 396 So.2d 778, 788 (Fla. 1st DCA 1981)(" In accordance

with the general rule, applicable in court proceedings, 'the

burden of proof, apart from statute, is on the party asserting

the affirmative of an issue before an administrative

tribunal.'"); § 120.57(1)(j), Fla. Stat.("Findings of fact shall

be based upon a preponderance of the evidence, except in penal

or licensure discipli nary proceedings or except as otherwise

provided by statute . . . .") .

22 . Section 479.01, Florida Statutes, contains the

following pertinent definitions:

(4) "Controlled area" shall mean 660 feet

or less from the nearest edge of the right -

of - way of any portion of the State Highway

System, interstate, or federal - aid primary

system and beyond 660 feet of the nearest

edge of the right - of - way of any portion of

the State Highway System, interstate, or

federal - aid primary system outside an urban

area.

* * *

(8) "Highway" means any road, street, or

other way open or intended to be opened to

the public for travel by motor vehicles.

(9) "Interstate highway system" means the

existing, unbuilt, or unopened system of

highways or portions thereof designated as

th e national system of interstate and

defense highways by the department.

(11) "Maintain" means to allow to exist.

* * *

(17) "Sign" means any combination of

structure and message in the form of an

outdoor sign, display, device, figure,

painting, drawi ng, message, placard, poster,

billboard, advertising structure,

advertisement, logo, symbol, or other form,

whether placed individually or on a V - type,

back - to - back, side - to - side, stacked, or

double - faced display or automatic changeable

facing, designed, i ntended, or used to

advertise or inform, any part of the

advertising message or informative contents

of which is visible from any place on the

main - traveled way. The term does not

include an official traffic control sign,

official marker, or specific info rmation

panel erected, caused to be erected, or

approved by the department.

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

(1) Except as provided in ss. 479.105(1)(e)

and 479.16, a person may not erect, operate,

use, or maintain, or cause to be erec ted,

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

ma in - traveled way of such system.

24 . Based on the findings of fact herein, the Department

has proven by a preponderance of the evidence that the wall

murals attached to the north and south exterior wall s of the

City Inn Hotel are signs that are visible f rom and within 660

feet of a federal interstate highway and that the signs were

erected and are maintained without a permit. 3

25 . Section 479.105 , Florida Statutes, provides in

pertinent 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 remov ed 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 f or 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

ch apter 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 de scribed 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 perti nent fees

required by this chapter, including annual

permit renewal fees payable since the date

of the erection of the sign .

26 . Section 479.16, Florida Statutes, provides in

pertinent part:

The following signs are exempt from the

requirement that a perm it for a sign be

obtained under the provisions of this

chapter but are required to comply with the

provisions of s. 479.11(4) - (8):

(1) Signs erected on the premises of an

establishment, which signs consist primarily

of the name of the establishment or wh ich

identify the principal or accessory

merchandise, services, activities, or

entertainment sold, produced, manufactured,

or furnished on the premises of the

establishment and which comply with the

lighting restrictions under department rule

adopted pursua nt to s.479.11(5), or signs

owned by a municipality or a county located

on the premises of such municipality or such

county which display information regarding

government services, activities, events, or

entertainment. . . .

* * *

If a sign located on th e premises of an

establishment consists principally of brand

name or trade name advertising and the

merchandise or service is only incidental to

the principal activity, or if the owner of

the establishment receives rental income

from the sign, then the sig n is not exempt

under this subsection.

27 . Malibu Lodging Investments/City Inn Hotel has the

burden of proving by a preponderance of the evidence that the

wall murals attached to the north and south exterior wall s of

the City Inn Hotel fall within the e xemption set forth in

Section s 479.105(1)(e) , Florida Statutes, or may be permitted

pursuant to Section 479.16(1), Florida Statutes. See Harper v.

England , 168 So. 403 (Fla. 1936)(burden is on party seeking

exemption from licensing requirement to establis h entitlement to

such exemption).

28 . Based on the findings of fact herein, Malibu Lodging

Investments/City Inn Hotel has failed to carry its burden of

prov ing that the wall murals advertising Volkswagen automobiles

and Vitamin Water fall within the exemp tion set forth in

Section 479.16(1), Florida Statutes. T he principal business

activity of In Plain Sight Media is marketing and promotion,

including the design, erection, and maintenance of wall murals,

and the principal business activity of Malibu Lodgin g

Investments/City Inn Hotel is an income - producing, mixed - use

real estate venture. Volkswagen automobiles and Vitamin Water

are neither principal nor accessory products or services "sold,

produced, manufactured, or furnished" on the premises of the

City Inn Hotel but are, at best, products incidental to the

principal business activity of these companies. The facts that,

from time to time, Volkswagen automobiles are available for sale

or rent on the used car lot owned by Malibu Lodging

Investments/City In n Hotel; that Vitamin Water is sold from a

vending machine in the City Inn Hotel; and that the wall murals

have generated interest in the advertising services provided by

In Plain Sight Media and have increased the foot - traffic in the

City Inn Hotel are no t sufficient to establish that these wall

murals advertise products or services that are the principal

business activity of Malibu Lodging Investments/City Inn Hotel

or In Plain Sight Media.

29 . Furthermore, based on the findings of fact herein, it

is rea sonable to infer that part of the rental income Malibu

Lodging Investments/City Inn Hotel receives from In Plain Sight

Media is for the right to use the hotel's exteri or walls to

display wall murals, so the wall murals Malibu Lodging

Investments/City Inn H otel is not entitled to the exemption in

Section 479.16(1), Florida Statutes.

30 . Finally, based on the findings of fact herein, Malibu

Lodging Investments/City Inn Hotel has failed to prove that the

wall murals advertising Volkswagen automobiles and Vita min Water

are conforming or nonconforming signs for which a permit may be

issued pursuant to Section 479.105(1)(e), Florida Statutes.

There was no showing that wall murals have been continuously

maintained on the exterior walls of the City Inn Hotel for t he

past seven years. The wall murals must, therefore, be removed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

issue a final order finding that the wall murals atta ched to the

exterior walls of the City Inn Hotel property violate

Section 479.07(1), Florida Statutes, and ordering that the wall

murals be removed.

DONE AND ENTERED this 28th day of September , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September , 2007.

ENDNOTES

1 / All references to the Florida Statutes shall be to the 2006

edition unless otherwise indicated.

2 / It is noted that thi s testimony was not controverted by the

Department, but nothing in the March 1, 2007, lease indicated

that the Lease Agreement for Wallspace was replaced or rendered

void by that subsequent lease, which, on its face, is limited to

office space, storage spa ce, and the use of hotel facilities,

with an incidental mention of "advertising signage."

3 / The Legislature amended Section 479.01, Florida Statutes,

effective July 1, 2007, to include a definition of "wall mural,"

as follows:

(27) "Wall mural" means a sign that is a

painting or an artistic work composed of

photographs or arrangements of color and

that displays a commercial or noncommercial

message, relies solely on the side of the

building for rigid structural support, and

is painted on the building o r depicted on

vinyl, fabric, or other similarly flexible

material that is held in place flush or flat

against the surface of the building. The

term excludes a painting or work placed on a

structure that is erected for the sole or

primary purpose of signag e.

Section 479.156, Florida Statutes (2007), effective July 1,

2007, provides that, with some limitations, municipalities and

counties may permit wall murals notwithstanding any other

provision of Chapter 479, Florida Statutes. Malibu Lodging

Investments /City Inn Hotel argues that the wall murals at issue

in this case cannot be signs because the Legislature recently

added a definition of wall mural, implying, therefore, that wall

murals were not previously within the scope of Chapter 479,

Florida Statutes . This argument is rejected because the

definitions of sign and wall mural are not mutually exclusive.

COPIES FURNISHED:

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Peter Antonacci, Esquire

Gray Robinson, P.A.

Post Office Box 11189

Tallahassee, Florida 32 302

Stephanie Kopelousos, Interim 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

6 05 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

James C. Myers, Agency Clerk

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 5 8

Tallahassee, Florida 32399 - 0450

Daniel Alter, Esquire

Gray Robinson P.A.

401 East Las Olas Boulevard, Suite 1850

Fort Lauderdale, Florida 33301

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 re commended order should be filed with the agency that

will issue the final order in this case.