08-004039 Andres Monsalve vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, December 17, 2008.

Summary: Petitioner failed to demonstrate that his applications for outdoor advertising sign permits met the requirements for approval. Recommend denial of the applications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDRES MONSALVE, )

)

Petitioner, )

)

vs. ) Case No. 08-4039

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

OUTLOOK MEDIA OF SOUTH FLORIDA )

LLC, )

)

Intervenor. )

________________________________)

RECOMMENDED ORDER

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

on November 4, 2008, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Linda L. Carroll, Esquire

Carroll Law Firm

1260 SunTrust International Center

One Southeast Third Avenue

Miami, Florida 33131-1714

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenor: Joseph DeMaria, Esquire

Amanda Quirke, Esquire

Tew Cardenas LLP

1441 Brickell Avenue, Suite 1500

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner’s

applications for a State sign permit should be granted.

PRELIMINARY STATEMENT

On or about June 16, 2008, Andres Monsalve filed two

applications for a State sign permit with the Department of

Transportation (DOT). By Notice of Denied Application (Notice

of Denial) issued July 3, 2008, DOT notified Mr. Monsalve that

his applications were denied, pursuant to Section 479.07(3)(b),

Florida Statutes, for the failure to include a statement from

the appropriate local governmental official indicating that the

agency or unit of local government would issue him a permit upon

approval of the state permit application by DOT. On July 15,

2008, DOT issued an amended Notice of Denial, notifying

Mr. Monsalve that his applications were denied for the failure

to meet spacing requirements of 1500 feet between outdoor

advertising signs pursuant to Section 479.07(9)(a)1. and 2.,

Florida Statutes; for being in conflict with an existing

permitted sign; for the failure of the sign to comply with all

local government requirements pursuant to Section 479.07(3)(b),

Florida Statutes; and for the failure of the building permit

submitted with the application to comply with local governmental

requirements. Mr. Monsalve filed a Petition for Formal Hearing.

On August 19, 2008, this matter was referred to the Division of

Administrative Hearings.

On September 17, 2008, Outlook Media of South Florida, LLC,

(Outlook Media) filed a Corrected Motion to Intervene. The

motion was granted and Outlook Media was granted intervenor

status in this matter.

At hearing, Mr. Monsalve renewed his motion for continuance

that was previously denied. The renewed motion for continuance

was denied. Additionally, a motion to dismiss, filed by Outlook

Media, was denied.

Further, at hearing, Mr. Monsalve testified in his own

behalf and entered 14 exhibits (Petitioner’s Exhibits numbered 1

and 5-17) 1 into evidence. DOT presented the testimony of one

witness and entered seven exhibits (Respondent's Exhibits

numbered 1-4, 7, 8, and 11) 2 into evidence. Outlook Media

neither presented the testimony of any witnesses nor entered any

exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of two volumes, was filed on November 17,

2008. DOT and Outlook Media timely filed their post-hearing

submissions. Mr. Monsalve failed to timely file his post-

hearing submission; however, no objection was made to his late-

filed post-hearing submission. Mr. Monsalve’s post-hearing

submission is accepted as filed. The late-filing of the post-

hearing submission, without objection, is considered an

extension of the agreed upon ten-day filing period. The

parties’ post-hearing submissions were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that DOT 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 in accordance with Chapter 479,

Florida Statutes.

2. Mr. Monsalve wishes to place two advertising signs

within 660 feet of Interstate 95 and visible to Interstate 95.

The advertising signs require a permit.

3. On or about June 16, 2008, Mr. Monsalve filed two

applications, completing DOT’s forms titled “Application for

Outdoor Advertising Permit” (Application), with DOT for outdoor

advertising signs. The two applications indicated the same

location for the outdoor advertising but with different height,

width, and total square feet: one was a height of 4 feet, width

of 60 feet, and 240 total square feet, and the other was a

height of 12 feet, width of 12 feet, and 144 total square feet.

The two Applications were assigned Application numbers 57196 and

57197, respectively. The location for the proposed outdoor

advertising signs is 299 Southwest 17 Road in Miami, Florida,

near Interstate 95, North of Southwest 3rd Avenue.

4. Mr. Monsalve owns the property on which the advertising

signs are to be located.

5. The Application contained a section titled “Local

Government Permission.” The section provided that it was to be

completed by the appropriate local government official or that a

“written statement indicating that the sign complies with all

local government requirements” may be submitted or, “for a

proposed sign location, a copy of the building permit issued by

the local government may be submitted.” The section was neither

completed by the local government official nor was a written

statement submitted indicating that the signs comply with all

local government requirements. However, Mr. Monsalve submitted

a 1999 building permit from the local government. The local

government was the City of Miami.

6. The 1999 building permit was issued by the City of

Miami on July 13, 1999, to Hampton Inn for a commercial painted

wall sign, located at 299 Southwest 17 Road. The building

permit was issued Permit Number SG 99-5011166. The Folio

Number, i.e., Property ID Number, on the 1999 building permit is

No. 01-4138-002-0020.

7. Mr. Monsalve owns the property for which the 1999

building permit was issued for the advertising sign. The

property is the same property identified on his Application,

assigned Application number 57197.

8. DOT requires that, in order for a building permit to

constitute “local government permission,” the permit must have

been issued within six months of the date of an application for

an outdoor advertising sign. The 1999 building permit submitted

by Mr. Monsalve was beyond the six-month time period of the date

of Application number 57197.

9. Furthermore, by letter dated June 25, 2008, the City of

Miami notified DOT that the 1999 building permit no longer had

legal status due to the City of Miami changing its laws

regarding billboards and that Mr. Monsalve did not have local

government permission. 3

10. The evidence demonstrates that the 1999 building

permit did not constitute local government permission.

11. The evidence failed to demonstrate that Mr. Monsalve

had obtained local government permission.

12. In March 2004, DOT issued a permit to the Hampton Inn

for an outdoor advertising sign on Mr. Monsalve’s property. The

permit was issued Tag Number CA179, and the sign was built on

August 19, 2004. The permit information provides, among other

information, that the location of the outdoor advertising sign

was located 0.040 miles North of Southwest 3rd Avenue and that

the sign was 144 square feet.

13. Hampton Inn and Mr. Monsalve entered into an

agreement/contract for Hampton Inn to lease outdoor advertising

space from Mr. Monsalve at 299 Southwest 17 Road, Miami,

Florida. A Second Lease Agreement between Mr. Monsalve and the

Hampton Inn indicates in provision numbered one that the lease

agreement was extended until March 31, 2007. The evidence

demonstrates that, subsequent to March 31, 2007, the lease of

the space by the Hampton Inn continued on a month-to-month basis

and that the last time that Mr. Monsalve received payment for

the monthly lease was in March 2008.

14. The location for the outdoor advertising sign permit,

Tag Number CA179 is the same location of Mr. Monsalve’s proposed

outdoor advertising sign in Application number 57197.

15. In June 2008, the outdoor advertising sign permit, Tag

Number CA179, was transferred from Hampton Inn to Outlook Media

using DOT’s form titled “Outdoor Advertising Permit Transfer

Request.” The permit is considered by DOT to be currently

active.

16. The location for Mr. Monsalve’s Application number

57197 is currently permitted to Outlook Media due to the

transfer of outdoor advertising sign permit, Tag Number CA179 to

Outlook Media.

17. The distance between the proposed sign in

Mr. Monsalve’s Application number 57196 and the space in the

outdoor advertising sign permit, Tag Number CA179, is less than

1500 feet.

18. The evidence demonstrates that the sign in

Mr. Monsalve’s Application number 57197 conflicts with the

outdoor advertising sign permit, Tag Number CA179, in that the

two are the same location.

19. Mr. Monsalve believed that he, as the property owner,

owned the outdoor advertising sign permit, Tag Number CA179, as

well. He did not agree for the permit to be transferred.

Mr. Monsalve was not aware that the outdoor advertising sign

permit, Tag Number CA179, had been transferred by Hampton Inn to

Outlook Media. The evidence was insufficient to demonstrate

that he owned or did not own the permit or that his permission

was required for the permit to be transferred.

20. Mr. Monsalve did not agree to lease the space for the

outdoor advertising sign permit, Tag Number CA179, to Outlook

Media.

21. Mr. Monsalve notified DOT that a problem existed

between him and the City of Miami regarding obtaining local

government permission and requested DOT to put his Application

on “Hold” in order to provide him with time to resolve the

problem. He also notified DOT regarding his dispute with the

transfer of the outdoor advertising sign permit, Tag Number

CA179, to Outlook Media. DOT is unable to place applications on

hold but is required to act on applications within 30 days.

22. Also, Mr. Monsalve notified the City of Miami, among

other things, of his dispute with the transfer of the outdoor

advertising sign permit, Tag Number CA179, to Outlook Media, and

that he did not give Outlook Media permission to erect a sign on

his property for which the outdoor advertising sign permit, Tag

Number CA179, was issued.

23. By Notice of Denial issued on July 3, 2008, DOT

notified Mr. Monsalve that his Applications were denied for the

following reason:

Other: No statement from the appropriate

local governmental official indicating that

the agency or unit of local government will

issue a permit to the applicant upon

approval of the state permit application by

the Department (Section 479.07(3)(b),

Florida Statutes).

24. On July 15, 2008, DOT issued an amended Notice of

Denial, notifying Mr. Monsalve that his Applications were denied

for the following reasons:

Sign does not meet spacing requirements

(1500’ for interstates . . .)

s.479.07(9)(a)1.&2., FS

In conflict with permitted sign(s), tag #(s)

CA 179 held by Outlook Media of South

Florida, LLC . . .

Sign/location does not comply with all local

government requirements . . .

s.479.07(3)(b), FS

Other: The building permit submitted with

the application is not in compliance with

local governmental requirements.

25. No evidence was presented to demonstrate that a

determination had been made as to what Mr. Monsalve’s legal

rights are as the owner of the property regarding his lease

agreement/contract with the Hampton Inn and the outdoor

advertising sign permit, Tag Number CA179; and regarding the

transfer of the outdoor advertising sign permit, Tag Number

CA179.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

27. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2008).

28. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). Mr. Monsalve has the ultimate burden of

proof by establishing through a preponderance of evidence that

he is entitled to the permit for which he has applied from DOT.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Antel v. Department of Professional Regulation,

Florida Real Estate Commission , 522 So. 2d 1056, 1058 (Fla. 5th

DCA 1988); J. W. C. Company, Inc. , supra .; § 120.57(1)(j), Fla.

Stat. (2008).

29. Section 479.07, Florida Statutes (2007) and (2008),

provides in pertinent part:

(1) [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.

(2) A person may not apply for a permit

unless he or she has first obtained the

written permission of the owner or other

person in lawful possession or control of

the site designated as the location of the

sign in the application for the permit.

(3)(a) An application for a sign permit

must be made on a form prescribed by the

department, and a separate application must

be submitted for each permit requested. A

permit is required for each sign facing.

(b) As part of the application, the

applicant or his or her authorized

representative must certify in a notarized

signed statement that all information

provided in the application is true and

correct and that, pursuant to subsection

(2), he or she has obtained the written

permission of the owner or other person in

lawful possession of the site designated as

the location of the sign in the permit

application. Every permit application must

be accompanied by the appropriate permit

fee; a signed statement by the owner or

other person in lawful control of the site

on which the sign is located or will be

erected, authorizing the placement of the

sign on that site; and, where local

governmental regulation of signs exists, a

statement from the appropriate local

governmental official indicating that the

sign complies with all local governmental

requirements and that the agency or unit of

local government will issue a permit to that

applicant upon approval of the state permit

application by the department.

* * *

(4) An application for a permit shall be

acted on by the department within 30 days

after receipt of the application by the

department.

* * *

(6) A permit is valid only for the location

specified in the permit. Valid permits may

be transferred from one sign owner to

another upon written acknowledgment from the

current permittee and submittal of a

transfer fee of $ [sic] 5 for each permit to

be transferred. However, the maximum

transfer fee for any multiple transfer

between two outdoor advertisers in a single

transaction is $ 100.

(7) A permittee shall at all times maintain

the permission of the owner or other person

in lawful control of the sign site to have

and maintain a sign at such site.

* * *

(9)(a) A permit shall not 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:

1. One thousand five hundred feet from any

other permitted sign on the same side of the

highway, if on an interstate highway.

30. The evidence demonstrates that Mr. Monsalve is

requesting a permit for an outdoor advertising sign on

Interstate 95 highway. § 479.07(1), Fla. Stat. (2007) and

(2008).

31. The evidence demonstrates that the proposed location

for the outdoor advertising sign for Application number 57196 is

less than 1500 feet from an already permitted outdoor

advertising sign, i.e., Tag Number CA179, on the same side of

the Interstate highway and, therefore, fails to meet the

requirement of Section 479.07(9)(a)1., Florida Statutes (2007)

and (2008).

32. Further, the evidence demonstrates that Mr. Monsalve’s

sign location for Application number 57197 conflicts with the

permitted outdoor advertising sign, Tag Number CA179.

33. The evidence fails to demonstrate that the 1999

building permit from the City of Miami submitted by Mr. Monsalve

with his Applications was issued within six months of his

Applications filed with DOT for the outdoor advertising sign

permit.

34. The evidence fails to demonstrate that Mr. Monsalve

has obtained the local governmental permission, and, therefore,

his Applications fail to meet the requirement of Section

479.07(3)(b), Florida Statutes (2007) and (2008).

35. Mr. Monsalve argues that a dispute exists as to

whether the outdoor advertising sign permit, Tag Number CA179,

was lawfully transferred to Outlook Media by Hampton Inn, and,

therefore, whether Tag Number CA179 lawfully belongs to Outlook

Media. Even though Section 479.07, Florida Statutes (2007) and

(2008), contains provisions setting forth certain requirements

to be met between an applicant or a permittee and the owner of

the sign site or other person in lawful control of the sign

site, a resolution of this dispute in these proceedings is not

within the authority of this Administrative Law Judge.

36. Moreover, Mr. Monsalve argues that the outdoor

advertising sign permit, Tag Number CA179, became invalid at the

termination of the lease agreement for the sign space with the

Hampton Inn on March 31, 2007, citing Lamar Advertising Company

v. Department of Transportation , 490 So. 2d 1315 (Fla. 1st DCA

1986). In Lamar , supra , the pertinent fact to the instant

matter, as agreed to by the parties and adopted by the

Department of Transportation, pertaining to the instant matter,

was that the owner of the property on which the outdoor

advertising sign was located notified the lessee, who was the

permittee for the sign, that the lease would be terminated and

requested the lessee to remove the sign by June 30, 1984; and

the pertinent conclusion of law, as adopted by the Department of

Transportation, was that the lease on the property terminated on

June 30, 1984. The court held that the permit became invalid

under Section 479.13, Florida Statutes, which provided that “No

person shall construct, erect, operate, use or maintain any

outdoor advertising structure, outdoor advertising sign or

advertisement without the written permission of the owner or

other person in lawful possession or control of the property on

which the structure or sign is located.”; that the prerequisite

to issuance of a permit for an outdoor advertising sign by the

Department of Transportation was the property owner’s permission

in writing; that the permit became invalid on the date that the

lease was terminated, June 30, 1984, and that the “permit ceased

to exist as an impediment due to Section 479.13” and “cannot

form the basis for denial of a valid permit.” Lamar , at 1318.

37. The court in Lamar , supra , recognized, in a footnote,

that Section 479.13, Florida Statutes was repealed in 1984 and

replaced in substance with Section 479.07(7), Florida Statutes

(Supp. 1984). Section 479.07(7), Florida Statutes (Supp. 1984)

is no different from Section 479.07(7), Florida Statutes (2007)

and (2008). In the instant matter, no agreement exists between

the parties as to the termination of the lease agreement between

the Hampton Inn and Mr. Monsalve. Further, the evidence is

insufficient to establish whether the lease agreement was

terminated, and, if so, the date of termination. Additionally,

the evidence fails to demonstrate that a determination has been

made as to what Mr. Monsalve’s legal rights are as the owner of

the property regarding his lease agreement/contract with the

Hampton Inn and the outdoor advertising sign permit, Tag Number

CA179. Even assuming that the lease agreement between

Mr. Monsalve and the Hampton Inn terminated prior to

Mr. Monsalve filing his Applications and that the outdoor

advertising sign permit, Tag Number CA179, became invalid prior

to the filing of his Applications, the Applications still fail

to meet the requirement of obtaining local government

permission.

38. Further, Mr. Monsalve argues that he was entitled to

local governmental permission. The City of Miami refused to

give local governmental permission. A dispute exists between

Mr. Monsalve and the City of Miami as to whether he should

receive local governmental permission. This Administrative Law

Judge is without authority in these proceedings to address the

dispute.

39. Additionally, Mr. Monsalve argues that DOT should have

delayed making a determination on his Application to afford him

an opportunity to resolve the aforementioned disputes. DOT is

required to act on an application for a permit within 30 days of

receiving the application. § 479.07(4), Fla. Stat. (2007) and

(2008). DOT was statutorily obligated to make a determination

within 30 days of receiving Mr. Monsalve’s Application, and DOT

did so. DOT made its determination on Mr. Monsalve’s

Application within the 30-day time period.

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 Andres Monsalve’s application for an outdoor

advertising sign permit.

DONE AND ENTERED this 17th day of December 2008, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

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 17th day of December, 2008.

ENDNOTES

1/ Petitioner’s Exhibits numbered 2-4 were rejected.

2/ Respondent’s Exhibit numbered 5 is the same as Petitioner’s

Exhibit numbered 10. Respondent’s Exhibit numbered 9 is

contained in Petitioner’s Exhibit numbered 7.

3/ No testimony was presented by a witness from the City of

Miami.

COPIES FURNISHED:

Linda L. Carroll, Esquire

Carroll Law Firm

1260 SunTrust International Center

One Southeast Third Avenue

Miami, Florida 33131-1714

Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Joseph DeMaria, Esquire

Amanda Quirke, Esquire

Tew Cardenas LLP

1441 Brickell Avenue, Suite 1500

Miami, Florida 33131

Stephanie Kopelousos, 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

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

James C. Myers, Clerk

Department of Transportation

Haydon Burns Building

605 Suwannee Street, 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.