08-000661 Lamar Of Tallahassee vs. Department Of Transportation Status: Closed Recommended Order on Monday, September 15, 2008.

Summary: The evidence showed that sign did not qualify as nonconforming sign since had not existed for seven years. Recommended Order provides a discussion of deemer provisions in Section 120.60(1), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR OF TALLAHASSEE, )

)

Petitioner, )

)

vs. ) Case Nos. 08-0660

) 08-0661

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

proceeding before Diane Cleavinger, Administrative Law Judge,

Division of Administrative Hearings on June 24, 2008, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson

Bell & Dunbar, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The issues in this case are whether the Department of

Transportation properly issued a Notice of Violation for an

illegally erected sign to Lamar of Tallahassee and whether the

Petitioner's applications for a sign maintained at the corner of

SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon

County, Florida, should be granted as a non-conforming sign or

because the Department did not act on either the 2005 or 2007

application for the same sign in a timely manner.

PRELIMINARY STATEMENT

On March 21, 2007, the Florida Department of Transportation

(Department or Respondent), posted a Notice of Violation-

Illegally Erected Sign, alleging that Lamar of Tallahassee

(Lamar or Petitioner), violated certain provisions of

Section 479, Florida Statutes, by maintaining an outdoor

advertising sign located on the west side of Ocala Road,

222 feet north of SR366/West Pensacola Street, in Tallahassee,

Leon County, Florida, without a permit.

On April 12, 2007, the Department received a petition for a

hearing from Lamar on the Notice of Violation. The matter was

deferred to allow time for Lamar to submit an application for an

outdoor advertising permit for the sign.

Lamar submitted an application for the sign. The permit

application was denied based on the sign's spacing conflict with

another permitted structure. Lamar disagreed with the denial

and filed a petition for a formal hearing on the Department's

denial.

Both petitions were forwarded to the Division of

Administrative Hearings. The petition challenging the

Department's Notice of Violation was assigned Case Number

08-0661 and the petition challenging the permit was assigned

Case Number 08-0660. On February 18, 2008, the cases were

consolidated.

On June 12, 2008, the Department issued an Amended Notice

of Violation-Illegally Erected Sign, stating that "the

advertising sign noted below is in violation of Section 479.07,

Florida Statutes. An outdoor advertising permit is required,

but has not been issued for this sign." On June 13, 2008, Lamar

filed a Motion to Amend the Petition and an Amended Petition for

Administrative Hearing. Additionally, on June 13, 2008, Lamar

filed a Second Motion to Amend the Petition for Formal

Administrative Hearing. The Department filed a response. The

Motions to Amend were granted.

At the hearing, the Department called two witnesses, Lynn

Holschuh and Billy Wayne Strickland and offered 14 exhibits into

evidence, numbered 1 through 10 and 13 through 16. Lamar

presented one witness, Loyd Childree and offered seven exhibits

into evidence, numbered 1 through 7. Both parties stipulated

that the portion of SR366/West Pensacola Street close to where

the subject sign is located has been designated as a Federal Aid

Primary highway.

After the hearing, the Petitioner filed a Proposed

Recommended Order on August 4, 2008. Likewise, the Respondent

filed a Proposed Recommended Order on August 4, 2008.

FINDINGS OF FACT

1. Under Chapter 479, Florida Statutes, the Department is

the state agency responsible for regulating outdoor advertising

signs located within 660 feet of the state highway system,

interstate, or federal-aid primary system.

2. Lamar owns and operates outdoor advertising signs in

the State of Florida.

3. On March 15, 2005, Lamar applied for a permit from the

Department to erect the subject sign. The permit was denied

because it was within 1,000 feet of another permitted sign owned

by Lamar that is located on SR366/West Pensacola Street.

4. The review process for Lamar’s application for a sign

permit involved a two-step process. Initially, Mr. Strickland,

the State Outdoor Advertising Administrator, reviewed Lamar’s

application. He determined that the sign was within 1,000 feet

of another permitted structure. On April 12, 2007, he

preliminarily denied Petitioner’s application, prepared the

Notice of Denied Application reflecting a denial issuance date

of April 12, 2005, and entered his preliminary decision on the

Department’s internal database. On the same date,

Mr. Strickland forwarded the permit file along with his

preliminary decision and letter to his superior, Juanice Hagan.

The preliminary decision was made within 30 days of receipt of

Lamar’s application.

5. Ms. Hagan did not testify at the hearing. However, at

some point, Ms. Hagan approved Mr. Strickland’s preliminary

decision and entered the official action of the Department on

the Department’s public database. That database reflects the

final decision to deny the application was made on April 20,

2005, outside of the 30 days of receipt of Lamar’s application.

On the other hand, Ms. Hagan signed the Notice of Denied

Application with an issuance date of April 12, 2005. Her

signature indicates that her final approval, whenever it may

have occurred, related back to April 12, 2005, and was within 30

days of receipt of Lamar’s application.

6. Lamar received the Department’s letter denying its

application, along with the return of its application and

application fee. The letter contained a clear point of entry

advising Lamar of its hearing rights under Chapter 120, Florida

Statutes. However, Lamar did not request a hearing concerning

the denied application as required in Florida Administrative

Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s

clerk in writing that it intended to rely on the deemer

provision set forth in Section 120.60, Florida Statutes. Absent

a Chapter 120 challenge to the Department’s action, the

Department’s denial became final under Florida Administrative

Code Rule 14-10.0042(3).

7. After the denial, Lamar performed a Height Above Ground

Level (HAGL) test on the proposed sign’s site. The test is used

to determine whether the sign face can be seen from a particular

viewing location. Lamar determined that the South face could

not be seen from SR366/West Pensacola Street due to some large

trees located along the West side of Ocala Road and behind the

gas station in front of the sign.

8. Pictures of the area surrounding the sign’s proposed

location, filed with the 2005 permit application, show a number

of trees that are considerably taller than the roof of the

adjacent gas station and utility poles. These trees appear to

be capable of blocking the view of the sign face from SR366/West

Pensacola Street and support the results from Lamar’s HAGL test.

Since the sign could not be seen from a federal aid highway, it

did not require a permit. Therefore, around August or

October 2005, Lamar built the subject sign on the west side of

Ocala Road and 222 feet north of SR 366/West Pensacola Street in

Tallahassee, Leon County, Florida.

9. As constructed, the sign sits on a large monopole with

two faces, approximately 10 1/2 feet in height and 36 feet wide.

The sign’s height above ground level is 28 feet extending

upwards to 40 feet. The north face of the sign does not require

a permit since it can only be seen from Ocala Road. Likewise,

at the time of construction and for some time thereafter, the

south face of the sign did not require a permit since it was not

visible from a federal aid highway.

10. Following construction of the subject sign, some of

the large trees were removed. The removal caused the south face

of the sign to be clearly visible from the main traveled way of

SR366/West Pensacola Street.

11. On March 21, 2007, the sign was issued a Notice of

Violation for an illegally erected sign because it did not have

a permit. The Notice of Violation stated:

YOU ARE HEREBY NOTIFIED that the advertising

sign noted below is in violation of section

479.01, Florida Statutes. An outdoor

advertising permit is required but has not

been issued for this sign.

The Notice cited the wrong statute and, on June 12, 2008, an

amended Notice of Violation for an illegally erected sign was

issued by the Department. The Amended Notice changed the

statutory citation from Section 479.01 to Section 479.07,

Florida Statutes. Both the original Notice and Amended Notice

stated the correct basis for the violation as: "An outdoor

advertising permit is required but has not been issued for this

sign."

12. On December 18, 2007, Lamar submitted a second

application for an Outdoor Advertising permit for an existing

sign. The application was denied on January 8, 2008, due to

spacing conflicts with permitted signs BX250 and BX251. The

denial cited incorrect tag numbers for the sign causing the

spacing conflict. The incorrect tag numbers were brought to the

attention of Mr. Strickland. The Department conducted a field

inspection of the sign’s area sometime between December 20, 2007

and January 20, 2008. The inspection confirmed that the spacing

conflict was caused by signs BZ685 and BZ686. The signs were

within 839 feet of the subject sign and owned by Lamar. An

Amended Notice of Denied Application was issued by the

Department on January 24, 2008. However, the evidence was clear

that the Department made the decision to deny the application

based on spacing conflicts on January 8, 2008. The fact that

paperwork had to be made to conform to and catch up with that

decision does not change the date the Department initially acted

upon Lamar’s application. Therefore, the 2007 application was

acted upon within 30 days.

13. The Department’s employee responsible for issuing

violation notices is Lynn Holschuh. She confirmed that if the

south sign face was completely blocked from view from the main

traveled way of SR366/West Pensacola Street when it was

originally constructed, a sign permit would not be required from

the Department. Ms. Holschuh further testified that if a change

in circumstances occurred resulting in the subject sign becoming

visible from the main traveled way of Pensacola Street, the sign

might be permitted by the Department as a non-conforming sign,

if it met the criteria for such.

14. In this case, the south face of the sign was once

legal and did not require a permit because several large trees

blocked the sign’s visibility from a federal aid highway. The

removal of the trees that blocked the sign caused the sign to

become visible from a federal aid highway. In short, the south

sign face no longer conformed to the Florida Statutes and Rules

governing such signs and now is required to have a sign permit.

However, the sign has not been in continuous existence for

seven years and has received a Notice of Violation since its

construction in 2005. The evidence was clear that the sign does

not meet the requirements to qualify as a nonconforming sign and

cannot be permitted as such. Therefore, Petitioner’s

application for a sign permit should be denied and the sign

removed pursuant to the Notice of Violation.

CONCLUSION OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat (2007).

16. In general, Chapter 479, Florida Statutes, requires

signs visible from a federal aid primary highway to have a

permit. Section 479.08(9), Florida Statutes (2007), establishes

the criteria for sign permits and states, in pertinent part:

A permit shall be granted for any sign for

which a permit had not been granted by the

effective date of this act unless such sign

is located at least:

(2) One thousand feet from any other

permitted sign on the same side of the

highway, if on a federal-aid primary

highway.

17. Section 479.01(14), Florida Statutes, defines a

nonconforming sign as follows:

"Nonconforming sign" means a sign which was

lawfully erected but which does not comply

with the land use, setback, size, spacing,

and lighting provisions of state or local

law, rule, regulation, or ordinance passed

at a later date or a sign which was lawfully

erected but which later fails to comply with

state or local law, rule, regulation, or

ordinance due to changed conditions.

18. Section 479.07(1), Florida Statutes (2007), states:

Except as provided in §§ 479.105(1)(e) and

479.16, a person may not erect, operate,

use, or maintain, or cause to be erected,

operated, used, or maintained, any sign on

the State Highway System outside an

incorporated area or on any portion of the

interstate or federal-aid primary highway

system without first obtaining a permit for

the sign from the department and paying the

annual fee as provided in this section. For

purposes of this section, "on any portion of

the State Highway System, interstate, or

federal-aid primary system" shall mean a

sign located within the controlled area

which is visible from any portion of the

main traveled way of such system.

19. Section 479.105, Florida Statutes, declares all

unpermitted signs to be a public nuisance and subject to

removal. However, Subsection 479.105(e), Florida Statutes,

provides an exception for nonconforming signs. Subsection (e)

states, as follows:

However, if the sign owner demonstrates to

the department that:

1. The sign has been unpermitted,

structurally unchanged, and continuously

maintained at the same location for a period

of 7 years or more;

2. At any time during the period in which

the sign has been erected, the sign would

have met the criteria established in this

chapter for issuance of a permit;

3. The department has not initiated a

notice of violation or taken other action to

remove the sign during the initial 7-year

period described in subparagraph 1.; and

4. The department determines that the sign

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

not a safety hazard, the sign may be

considered a conforming or nonconforming

sign and may be issued a permit by the

department upon application in accordance

with this chapter and payment of a penalty

fee of $300 and all pertinent fees required

by this chapter, including annual permit

renewal fees payable since the date of the

erection of the sign.

20. In this case, the evidence showed that the sign had

been lawfully erected in 2005 because it was not visible from a

federal aid highway and did not require a permit. There was no

evidence that the designation of a highway changed the legal

status of the sign. In fact, the status of the sign changed

when the trees blocking its view were removed. However, the

evidence was clear that the sign has not been in continuous

existence for seven years since its construction. Additionally,

the sign has been issued a Notice of Violation since the time of

its construction. Given these facts, the sign does not meet the

statutory requirements to be designated a nonconforming sign

entitled to a permit under Section 479.105(e), Florida Statutes.

See Scharrer v. Department of Professional Regulation , 536 So.

2d 320 (Fla. 3rd DCA 1988). The evidence was also clear that

the sign is located within 1,000 feet of another permitted

structure. Therefore, Petitioner is not entitled to a permit

for the south face of the subject sign since it is within 1,000

feet of another permitted sign.

21. Finally, Lamar asserts that Section 120.60, Florida

Statutes (2007), known as the deemer clause, entitles it to a

permit because neither its 2005 application, nor its 2007

application were acted upon within the statutory period required

for such action. Section 120.60(1), Florida Statutes (2007),

states, in pertinent part:

(1) . . . Every application for a license

shall be approved or denied within 90 days

after receipt of a completed application

unless a shorter period of time for agency

action is provided by law. The 90-day time

period shall be tolled by the initiation of

a proceeding under §§ 120.569 and 120.57.

Any application for a license that is not

approved or denied within the 90-day or

shorter time period, within 15 days after

conclusion of a public hearing held on the

application, or within 45 days after a

recommended order is submitted to the agency

and the parties, whichever action and

timeframe is latest and applicable, is

considered approved unless the recommended

order recommends that the agency deny the

license . . . . Any applicant for licensure

seeking to claim licensure by default under

this subsection shall notify the agency

clerk of the licensing agency, in writing,

of the intent to rely upon the default

license provision of this subsection. . . .

22. Subsection 479.07(4), Florida Statutes (2007), reads:

An application for a permit shall be acted

on by the department within 30 days after

receipt of the application by the

department.

23. Florida Administrative Code Rule 14-10.0042(3) states,

in pertinent part:

(3) Requests for Administrative Hearing

(a) All requests for administrative

hearings shall be made in writing and shall

be filed with the Clerk of the Agency

Proceedings, Department of Transportation,

605 Suwannee Street, Mail Station 58,

Tallahassee, Florida 32399-0458. Requests

for hearing filed in response to notices

issued pursuant to Sections 479.07(8)(a),

479.105)(1), or 479.107(1), F.S., must be

filed within 30 calendar days of receipt of

the notice of the Department's action. Any

request for hearing filed in response to a

notice issued pursuant to Sections

479.07(8)(a), 479.105(1), or 479.107(1),

F.S., must be filed within 30 calendar days

of the date of the notice of the

Department's action. A request for hearing

is not timely filed unless it is received by

the Clerk of Agency Proceedings within the

specified time.

(b) A request for hearing shall conform to

the requirements of Rule 28-106.201 or 28-

106.301, F.A.C. If the sign owner,

applicant, licensee, or permittee fails to

file a timely request for a hearing, the

Department's action shall become conclusive

and final agency action . (emphasis

supplied)

24. In this case, the evidence is unclear that the 2005

application was denied within 30 days after its date of receipt

by the Department. The better evidence indicates that it was

acted upon by the Agency by April 12, 2005, within the 30-day

time period for such action. However, even assuming the

Department’s action was not timely, Petitioner did not file a

request for a hearing within 30 days of receiving the 2005

Notice of Denied Application. Furthermore, Lamar never notified

the clerk, in writing, of its intention to rely on the Section

120.60(1), Florida Statutes, deemer provision as mandated by

Section 120.60, Florida Statutes. Given these two facts, the

Department’s 2005 denial of Lamar’s application became

conclusive and the final action of the Department. Lamar cannot

now assert that its 2005 application should be deemed to be

granted since it has not timely protected its interests.

25. In regards to the 2007 application, the evidence was

clear that the Department took final action on the application

within the 30-day time period for such action. Section

120.60(1), Florida Statutes, does not require that the paperwork

reflecting the agency’s action be finalized or issued within the

required time period for such decisions. The statute only

requires that the agency make its decision within the required

time period. See Department of Transportation v. Calusa Trace

Development Corp. , 571 So. 2d 543 (Fla. 4th DCA 1990), and

Sumner v. Department of Business and Professional Regulation ,

555 So. 2d 919 (Fla. 1st DCA 1990). The fact that mistakes were

made in the issuance of the original 2007 notice of denial is

irrelevant to the question of whether the agency made its

decision on the Petitioner’s application within the required

time period. The written notice is an official record and on

this issue only serves as evidence of the action taken by the

agency. The mistakes that were made in the original 2007 notice

related only to whether Lamar received adequate information

regarding the Agency’s decision to deny its 2007 permit

application. Calusa , supra and Sumner , supra See Scharrer v.

Department of Professional Regulation , 536 So. 2d 320 (Fla. 3rd

DCA 1988), and since the Department’s denial was made within 30

days of the Department’s receipt of Lamar’s application, the

deemer provision of Section 120.60(1), Florida Statutes, does

not apply. Given that the south face of the sign does not meet

the spacing requirements for a permit and does not qualify for a

permit as a nonconforming sign, Lamar’s application should be

denied and the Department is entitled to remove the sign

pursuant to its Notice of Violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

RECOMMENDED that the Department of Transportation enter a

final order denying Petitioner a permit for the sign located on

the west side of Ocala Road, 222 feet North of SR366/West

Pensacola Street and enforcing the Notice of Violation for said

sign and requiring removal of the south sign face pursuant

thereto.

DONE AND ENTERED this 15th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of September, 2008.

COPIES FURNISHED :

Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson

Bell & Dunbar, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

Kimberly Clark Menchion, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

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.