10-009666 Southeast-Sd, Llc vs. Department Of Transportation Status: Closed Recommended Order on Monday, February 21, 2011.

Summary: At the time of application for permit, no spacing conflict existed. Recommend granting permit application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHEAST - SD, LLC, )

)

Petitioner, )

)

vs. ) Case No. 10 - 9666

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on December 3 , 201 0 ,

by Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Tallahassee , Flo rida.

APPEARANCES

For Petitioner: Robert C. Downie, II , Esquire

Law Office of Robert Downie

2660 Egret Lane

Tallahassee , Florida 32 3 0 8

For Respondent: Matthew F. C hilds , Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

Wh ether an application for an outdoor advertising permit for

a sign in Santa Rosa County should be granted or denied.

PRELIMINARY STATEMENT

By a Notice of Denied Application dated July 30 , 200 9 ,

Respondent notified Petitioner that its outdoor advertis ing

permit application for a proposed sign structure to be located on

U.S. Highway 90 in Santa Rosa County was denied. On August 16,

2010, Respondent issued an Amended Notice of Deni ed A pplication.

Petitioner timely filed a Request for Formal Administra tive

Hearing , which was forwarded to the Division of Administrative

Hearings on or about October 1 4 , 20 10 . A formal hearing was

scheduled for December 3 , 201 0 . The case was heard as scheduled.

At hearing, Petitioner presented the testimony of one

witnes s, Hal Stevenson. Petitioner's Exhibits 1 through 3 were

admitted into evidence. Respondent presented the testimony of

three witnesses, Robert Jesse, John Howard, and John Garner .

Respondent's Exhibits numbered 1 , 2 , and 4 through 7 were

admitted into e vidence. Joint Exhibits numbered 1 and 2 were

admitted into evidence.

Official recognition was requested by Respondent of Florida

Administrative Code Rule 14 - 1 0 .0022 , and s ection 479. 0 2 , Florida

Statutes. The request was granted.

A one - volume Transcript was filed on Dec ember 21 , 201 0 . At

the parties' request, proposed recommended orders were due 20

days after the filing of a transcript. The parties timely filed

Proposed Recommended Orders which have been considered in the

preparation of this Recommende d Order. 1/

FINDINGS OF FACT

1. The Department of Transportation is the state agency

responsible for the regulation of outdoor advertising signs that

are located on all federal - aid primary highways. U.S. Highway 90

(U.S. 90) is a federal - aid primary hig hway.

2. A permit is required prior to erecting an outdoor

advertising sign on all federal - aid primary highways. Southeast -

SD, LLC (Southeast) filed an application for an outdoor

advertising permit , application # 57549/57550 (the application)

on June 29, 2009.

3. Southeast's proposed sign structure meets the size and

height requirements of s ection 479.07. The parcel was

commercially zoned in acc ordance with the provisions of s ection

479.11, Florida Statutes.

4. Southeast's appl ication site is located on U.S. 90 at

milepost 3.118, approximately 550 feet east of the centerline of

Woodbine Road.

5. The Department denied Southeast's application and issued

a Notice of Denied Outdoor Application (initial denial) on

July 29, 2009. The reason stated in the initial denial was :

Sign does not meet spacing requirements

(1500' for interstates, 1000' for FAP).

[s. 479.07(9)(a),1.,& 2. F.S.]

I n conflict with permitted sign(s), tag#(s):

CC479. Held by: Bill Salter Advertising,

Inc.

6. Bill Salter Adve rtising, Inc. (Salter's) sign with tag

CC479 was located on U . S . 90 less than 500 feet from the

application site.

7. Permit CC479 was the subject of a Department revocation

proceeding. 2 / O n March 8, 2010, the Department issued a Clerk's

Order of Dismi ssal on the challenge to the revocation of CC479.

Thus, the revocation of the conflicting sign, CC479 , was final on

March 8, 2010.

8. On August 16, 2010, the Department issued an Amended

Notice of Denied Application (Amended Notice) . In the Amended

Noti ce, the Department gave a different reason for the denial.

The reason given in the Amended Denial concerned a different

Salter tag:

Sign does not meet spacing requirements

(1500' for interstates, 1000' for EAP).

[s. 470.07(9)(a),1., & 2. FS]

In confl ict with permitted sign(s): CF793.

Held by: Bill Salter Advertising, Inc."

9 . CF793 was originally permitted in 1978. At that time,

an application for a sign permit was reviewed and notated by the

Department , and became the actual permit . The appli cation for

CF793 contains information that is type - written on the

application form, presumably by the applicant, Salter . In the

portion of the application form stating "DOT DES CRIPTION OF SIGN

LOCATION ( DOT USE ONLY)" the following is hand - written: "Sect .

59 W - 39.95 Miles W - SR 85." M ost of the application/permit w as

filled out by the applicant, and part of it was filled out by the

Department.

10. In 1996, the Florida L egislature amended s ection

479.02, directing the Department to inventory and deter mine the

location of all signs on the state, interstate, and federa l - aid

primary highway systems. The Department conduct ed the inventory

and, upon completion, sent the database information to each sign

owner, giving each owner an opportunity to challenge the accuracy

of the results. Salter did not file such a challenge regarding

CF793 .

1 1 . As of July 30, 2009 (the date of the initial denial),

tag CF793 was shown at milepost 13.205 on U.S. 90 , in a location

approximately 13 miles away from the applica tion site in the

D epartment's database created pursuant to s ect ion 479.02(8) .

12 . Tag CF793 was physically located 13 miles away from its

originally permitted location. The Department acknowledges that

tag CF793 was not valid in its location 13 miles away from its

current location, where it was located from at least 19 98 to

2010.

13 . The database reflected milepost 13.205 as the location

for CF793 from 1998 until 2010.

14 . In 2004, the Department sent Salter a Notice of Non -

Compliance demanding t hat Salter post tag CF793 at milepost

13.205.

15 . In October 2009, the Department received a letter from

Salter regarding moving CF793 to the location specified in the

1978 permit. At this point, the Department investigated the

original application and discovered a "huge discrepancy" between

the database location and the permit location in the Department's

files . The Department has no documentation regarding how tag

CF793 came to be located at milepost 13.205 since the 1998

inventory. The Departmen t decided that i t s database was

incorrect and that it needed to be corrected.

16 . On February 1, 2010, the Department changed its

database to reflect the location for CF7 93 as milepost 2.993 on

U.S. 90. Salter posted the tag for CF793 at its current loca tion

sometime after March 22, 2010 and prior to May 3, 2010. Once

Salter placed the tag for CF793, the database was changed again

to reflect the physical tag location at milepost 2.950 on U.S.

90, the "current location."

17 . The Department hired Cardno T BE, an engineering firm,

to conduct field work. An inspector performed field measurements

on May 3, 2010 , using the wheel and laser methods for field

measurement. The inspector identified the stake that was in the

ground on Southeast's proposed sign site . He measured along the

edge of the pavement on U.S. 90 from the location m arked by

Southeast to the new location of Salter's CF793 tag. The

inspector determined that the distance between the proposed site

and the nearest permitted sign, CF793, is 890 fe et.

18 . Based upon these findings, t he Department then

determined that Southeast's proposed sign did not meet the 1000 -

f oo t spacing requirement .

19 . By letter dated May 27, 2010, the Department notified

Salter that the location of CF793 was "nonconfor ming" and that

pursuant to Florida Administrative Code Rule 14 - 10.007, a

completed sign must be erected within 270 days or the permit

would be revoked. No sign has been built , and the permit has not

been revoked . Moreover, it appears that a sign will nev er be

built , as the Department is in possession of correspondence from

Santa Rosa County to S al te r indicating that a sign cannot be

constructed at the current location of tag CF793 due to conflict

with several local ordinances.

20 . Also on May 27, 2010, the Department sent a letter to

Southeast stating that CF793 "now presents a spacing conflict"

with Southeast's application loca tion. The letter further states

that the Department had advised Salter that a completed sign must

be erected within 270 days an d that if no sign is erected within

that time frame, the permit would be revoked.

21 . On August 16, 2010, t hree months later, the Department

amended its denial as set forth above in paragraph 8.

22 . Just prior to the hearing, the Department again sent

the inspector to conduct another field measurement. This time,

the inspector relied upon info rmation regarding the location of

the sign from the original app lication/permit that was provided

by the applicant (Salter) in 1978 . That is, the inspector

measur ed from a location described by the applicant in the

original permit application, then measured the distance from the

location to Southeast's proposed site, and determined the

distance to be 884 feet. In making these measurements, the

inspector assumed th at the nearest intersection in 1978 was in

the same location as today, that the original measurer started

the measurement from the centerline of that intersection, and

that the distance from the nearest intersection indicated by

Salter on the original appl ication/permit was measured with the

same accuracy as a hand - wheel or laser. 3 /

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case,

s ections 120.569, and 120.57(1), Florida Stat utes.

24 . The Department is authorized to regulate outdoor

advertising signs located along interstate and federal - aid

primary highways pursuant t o c hapter 479 , Florida Statutes, and

Florida Administrative Code Chapter 14 - 10.

25 . As the party seeking a pe rmit from the Department,

Southeast has the burden of prov ing its entitlement to the permit

by a preponderance of the evidence. F la. Dep't of Transp. v.

J.W.C. Co . , 396 So. 2d 778 (Fla. 1st D C A 1981).

26 . Section 479.0 2 provides in pertinent part:

479.0 2 Duties of the Department . -- It

shall be the duty of the department to:

* * *

( 8 ) Prior to July 1, 1998, inventory and

determine the location of all signs on the

state, interstate and federal - aid primary

highway systems. Upon c ompletion of the

inventory, it shall become the database and

permit information for all signs permitted at

the time of completion, and the previous

records of the department shall be amended

accordingly. The inventory shall be updated

no less than every 2 years. . . . (emphasis

added)

27 . Section 479.0 7 provides in pertinent part:

479.0 7 Sign permits. -

* * *

(4) An application for a permit shall be

acted upon 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 acknowledgement from the current

permittee and submittal of a transfer fee.

. . .

(7) A permittee shal l 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 each site.

* * *

(9)(a) A permit shall not be granted for any

sign for which a permit had not been granted

by the effe ctive 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 an interstate highway.

2. One thousand feet from any other

permitted sign on the same side o f the

highway, if on a federal - aid highway.

(emphasis added)

28 . Florida Administrative Code Rule 14 - 10.006(4) provides

that in the case of a permitted sign that has not been

constructed, the milepost location reflected on the application

shall be us ed as the location of the permitted sign. The

original application completed in 1978 did not reference a

milepost. However, the database created in 1998 referenced

milepost 13.205 for this permit.

29 . The 1996 amendment to s ection 479.02 directed the

Department to, prior to 1998, inventory and determine the

locat i on of all signs of the state, interstate, and federal - aid

primary highway systems. Section 479.02(8) states that upon

completion of the inventory, the inventory "shall become the

database an d permit information" for all signs permitted at the

time of completion. The statute then directs the Department to

update the inventory every two years. From the time the

inventory was completed until 2010, the permit information

reflected that CF793 wa s located approximately 13 miles away from

the application site. Thus, at the time Southeast filed its

application, there was no spacing conflict with CF793. The

conflict w ith CF793 did not exist until 11 months after

Petitioner applied for a permit.

30 . As some of the evidence the Department relied upon in

determining that a spacing conflict existed is hearsay, the

Department did not es tablish that a spacing conflict existed with

CF793.

31 . F inally , on March 8, 2010, the revocation of CC479 was

f inal. Thus, as of March 8, 2010, the Department had no grounds

to withhold a permit from Southeast, as the sole reason cited in

the initial denial ceased to exist: conflict with CC479. The

Department's delay of five months to issue the Amended Denial,

b ased upon a different sign , is contrary to s ection 479.07(4) and

the intent behind section 120.60(1). While the applicant has the

burden, the Department cannot keep changing the landscape. That

is, at some point in time, an applicant must be afforded a d egree

of finality as to the circumstances under which the application

is filed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Department of Transportation enter a fina l order

approving Southeast's sign permit application .

DONE AND ENTERED this 21s t day of February , 201 1 , in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros

Administrative Law Judge

Divisi on of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21s t day of February , 201 1 .

ENDNOTES

1/ All references to the Florida Statutes are to 2010, unless

indicated otherwise.

2/ The revocation proceeding was transmitted to the Division of

Administrative Hearings : Bill Sa lter Advertising, Inc. v. Fla .

Dep ' t of Transp . , Case No. 09 - 6601. Prior to the scheduled

hearing, Petitioner's Withdrawal of Request for Administrative

Hearing was filed. An Order Closing File was entered on

February 26, 2010, which relinq uished jurisdi ction to the

Depa rtment.

3 / The content of the original application/permit completed by

Salter is hearsay a nd is not sufficient in itself to support a

finding of fact as contemplated by s ection 120.57(1)(c), Florida

Statutes. Whether or not thi s document is a business record of

the Department does not cure the hearsay nature of the portions of

the application/permit completed by Salter. See Brooks v. State

of Fla. , 918 So. 2d 181,193 (Fla. 2005)("The b usiness record

exception does not permit th e admission into evidence of the

hearsay statements within the Department of Revenue record.") , and

Reichen s ey v. Davis , 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003)

("witness's statements, even though contained within the business

records, do not fall withi n the exception, because they were not

based upon the personal knowledge o f an agent of the

'business.'").

COPIES FURNISHED:

Matthew F . Childs, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee , Florida 32399

Robert C. Downie, II, Esquire

Law Office of Robert Downie

2660 Egret Lane

Tallahassee, Florida 32308

Deanna Hurt , Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Str eet

Tallahassee, Florida 32399 - 2202

Gerald B. Curington, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 2202

Stephanie C. Kopelousos, Secretary

Department of Tr ansportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommende d order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.