11-001681
Carter Outdoor Advertising vs.
Department Of Transportation
Status: Closed
Recommended Order on Tuesday, April 17, 2012.
Recommended Order on Tuesday, April 17, 2012.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8CARTER OUTDOOR ADVERTISING, )
12)
13Petitioner, )
15)
16vs. ) Case No. 11 - 1681
23)
24DEPARTMENT OF TRANSPORTATION, )
28)
29Respondent. )
31_______________________________ )
33CBS OUTDOOR, INC., )
37)
38Petitioner, )
40)
41vs. ) Case No. 11 - 1682
48)
49DEPARTMENT OF TRANSPORTATION, )
53)
54Respondent. )
56)
57RECOMMENDED ORDER
59Pursuant to notice, a formal heari ng was held in this case on
72Oct ober 18 and 19, 2011, in Miami, Florida, and January 25, 2012,
85in Tallahassee, Florida, before June C. McKinney, a duly -
95designated Administrative Law Judge of the Division of
103Administrative Hearings.
105APPEARANCES
106For Petitioner Carter : Carol Ann Licko, Esquire
114H ogan Lovells US LLP
1191111 Brickell Avenue, Suite 1900
124Miami, Florida 33131
127For Petitioner CBS : Thomas R. Bolf, Esquire
135Greenspoon Marder, P.A.
13815th Floor
140200 East Bro ward Boulevard
145Fort Lauderdale, Florida 33301
149For Respondent: Kimberly Clark Menchion, Esquire
155Department of Transportation
158The Haydon Burns Building
162605 Suwa nnee Street, Mail Station 58
169Tallahassee, Florida 32399
172STATEMENT OF THE ISSUE
176The issues in this case are: whether the Department of
186Transportation ( " Department " ) properly issued a Notice of Intent
196to Revoke Sign Permit for V iolation to Carter Outdoor Advertising
207a/k/a Carter Pritchett Advertising ( " Carter " ) for the outdoor
217advertising sign permitted with tag numbers BV314/315 and whether
226the Department properly denied CBS Outdoor, Inc. ' s ( " CBS " )
238application for outdoor advert ising sign permit based on a spacing
249conflict with the outdoor advertising sign permitted with tag
258numbers BV314/315.
260PRELIMINARY STATEMENT
262On October 30, 2009, the Department issued CBS a Notice of
273Denied Outdoor Advertising Permit Application advising th at CBS '
283application was not approved for the following reason:
291Sign does not meet spacing requirements (1500 '
299for interstates, 1000 ' for FAP). In conflict
307with permitted sign(s), tag#(s): BV314/315.
312Held by: Carter - Pritchett.
317[s.479.07(9)(a), 1.,& 2, FS ]
323On December 18, 2009, the Department issued a Notice of
333Intent to Revoke Sign Permit for Violation , advising Carter that
343the Department intended to revoke its permit, pursuant to section
353479.08, Florida Statutes for the following violation:
360This nonconfo rming sign no longer exist s at
369the permitted location and is deemed abandoned
376by the Department, pursuant to s. 14 -
38410.007(6)(b), Florida Administrative Code.
388On November 19, 2009, CBS filed a Petition for Formal
398Proceedings, requesting a " formal administr ative hearing " on the
407Departments ' preliminary denial of its a pplication.
415By letter dated January 15, 2010, and received by the
425Department on or about January 20, 2011, Carter requested an
435informal administrative hearing, challenging the Notice of
442Revocati on.
444An informal hearing was held on March 18, 2011, on CBS ' s
457Petition to Intervene and Motion to Transfer to the Division of
468Administrative Hearings. The Department relinquished jurisdiction
474to the Division of Administrative Hearings ( " DOAH " ) .
484On April 5, 2011, t he Department referred the matter s to
496DOAH . Petitioner Carter is the subject of DOAH Case No. 11 - 1681.
510Petitioner CBS is the subject of DOAH Case No. 11 - 1682.
522On April 14, 2011, the parties filed a Joint Motion to
533Consolidate DOAH Case Nos. 11 - 168 1 and 11 - 1682 , which the
547undersigned granted by Order of Consolidation issued April 22,
5562011.
557The final consolidated hearing, as noted above, was scheduled
566for June 14 and 15, 2011 . The undersigned granted a continuance
578and the case was rescheduled for Au gust 23 and 24, 2011. After
591several continuances, the final consolidated hearing was held on
600October 18 and 19 , 2011, in Miami, Florida, and January 25, 2012 ,
612in Tallahassee, Florida .
616At the final hearing, Carter presented the testimony of seven
626witnesses : Rex Hodges, a principal of Carter, who testified as
637the corporate representative for Carter; Scott C arter, a principal
647of Carter and a representati ve of Scott Carter Signs, Inc.; Jean
659Jose, a re presentative of the Tabernacle G od in Christ, Inc.; Joe
672Lit tle, CBS ' s Vice President of Real Estate for the Southeast
685Region; Ed Scherer, a former real estate representative for CBS;
695Vanessa Acosta, the current Assistant Director of Building for the
705City of Miami and the former Assistant Director of Building and
716Z oning for the City of Miami; and Orlando Toledo , a former
728representative of the City of Miami, who worked for the City of
740Miami as the Zoning Administrator, Director of Building, Zoning
749and Planning, and Director of Building and Zoning . Petitioner ' s
761Exhib its 2, 4 and 5, 9, 11 and 12, 15 through 18, 21, 24 though
77732, 40, 42, 43, 47 through 51, 55 and 56, 59, 61 though 71, 73
792though 85 and 87, 88, and 92, 96, 115, 117 and 118 were received
806into evidence.
808CBS presented the testimony of two witnesses: Daniel
816Blanton , a surv eyor who testified as an expert ; and Joe Howard
828Little , CBS ' s Vice President of Real Estate for the Southeast
840Region , who testified as corporate representative for CBS .
849Petitioner ' s Exhibits numbered 4, 13 and 14, 18 and 19, 23, 26,
86330, 33 A , 39 and 40, 42 through 44, 48, 51 and 52, 55, 57 through
87962 were received into evidence .
885The Department presented the testimony of two witnesses:
893Robert Jessee , the Department ' s Manager of Outdoor Advertising and
904Logo, who testified as corporate represent ative for the
913Department; and Mack Barnes , a representative of Cardno TBE and
923consultant for the Department, who served as an outdoor
932advertising inspector . The Department ' s Exhibits numbered 1
942through 19 were received into evidence.
948The proceedings were recorded and transcribed. The
955October 18 and 19, 2011, Transcript s were filed at the DOAH on
968December 19, 2011, and Transcripts Volumes III and IV for the
979January 25, 2011, hearing were filed on February 13, 2012. All
990parties availed themselves of the ri ght to submit proposed
1000recommended orders. Both Petitioner s and Respondent timely filed
1009Proposed Recommended Orders. The undersigned has considered the
1017Proposed Recommended Orders, as well as the testimony and exhibits
1027presented at hearing in the prepara tion of this Recommended Order.
1038FINDINGS OF FACT
1041Based on the oral and documentary evidence presented at the
1051final hearing and on the entire record of this proceeding, the
1062following findings of fact are made:
10681 . The City of Miami is a competitive marke t for billboards.
10812 . On December 14, 1998, the Department issued outdoor
1091advertising permits to Carter for the erection of a double - faced
1103sign and assigned permit tag numbers BV314/315 to 3825 NW 2nd
1114Avenue, Miami, Florida, 0.980 miles east of I - 95 at mil epost 0.906
1128( the " Tabernacle Sign " ).
11333 . Carter leased the property for the Tabernacle Sign from
1144the Tabernacle God in Christ, Inc .
11514 . The Tabernacle Sign was initially permitted by the
1161Department as a conforming sign.
11665 . On or about February 6, 2002, th e Tabernacle Sign was
1179changed to nonconforming status pursuant to a settlement between
1188Carter and the Department.
11926 . On August 18, 2003, Carter entered into a settlement
1203agreement with the City of Miami , which limit ed/restricted the
1213number of signs Carter can maintain in Miami to 20. The
1224settlement agreement also protects the Tabernacle S ign as one on
1235Carter ' s list of billboards protected by the City until 2028.
12477 . In late 2007, t he Tabernacle God in Christ, Inc. decided
1260to sell the property Carter lease d for the Tabernacle S ign , and
1273the church listed the location for sale . The church would not
1285allow Carter to purchase an easement to maintain the Tabernacle
1295S ign at the location.
13008 . Around August 2008, Carter began looking for a new
1311location for the Tabe rnacle Sign .
13189 . Carter first leased a vacant lot as a " new location " for
1331the billboard. On April 9, 2008, t he City of Miami issued a
1344building permit to Carter for a billbo ard at the new location.
135610 . After Carter obtained the permits for the new locatio n
1368and was ready to construct the billboard , Carter developed
1377concerns regarding F lorida Power and Light Company setbacks and
1387decided to identify an alternative location for the billboard
1396sign.
139711 . During Carter ' s search for a n alternative location ,
1409Carter ' s goal was to have a conforming b illboard .
142112 . Carter identified an alternate location at a site
1431directly to the west of the new location at 221 Northwest 38th
1443Street , Miami, Florida ( " new Carter site " ) , which is not within
1455100 feet of the Tabernacle chu rch site .
146413 . C arter perf ormed the soil boring tests to design the
1477foundation for the billboard at the new Carter site .
148714 . On September 30, 2008, Carter obtained a building permit
1498from the City of Miami for a billboard at 221 Northwest 38th
1510Street. The City of Miami transferred the permit fees previously
1520paid in connection with the new location to the new Carter site.
153215 . Subsequently, Carter purchased the property at the new
1542Carter site. Carter also performed a substantial amount of
1551preparatory work, including engineering work and the preparation
1559of a survey to place a conforming sign at the new Carter site.
157216 . On October 10, 2008, Carter closed on its land purchase
1584for the new Carter site.
158917 . On October 21, 2008, Scott Carter Signs , Inc. ( " Carte r
1602Signs " ) 1 / installed the concrete footer for Carter at the new
1615Carter site in preparation to install the sign.
162318 . On December 2 , 2008, Carter Signs took down the
1634Tabernacle Sign from the permitted location at 3825 NW 2nd Avenue
1645and moved it to Fort Myer s, Florida. The company ' s work order
1659provided the following instructions for the move: " Take down
1668existing sign structure DISASSEMBLED and LOAD ONTO SEMI ' S
1678TRANSPORT TO FT. MYERS UNLOAD IN YARD FOR ALTERATIONS . " 2 /
169019 . As part of the move, the Tabernacle Sign was dismantled.
1702T he upper structure, which holds both sign faces , as well as every
1715beam, pole, and stringer was removed from the Tabernacle church
1725site and transported to Fort Myers.
173120 . When Carter Signs removed the Tabernacle Sign, the
1741permitted tags BV315/314 were also removed from the permitted
1750location.
175121 . After upgrading the Tabernacle Sign at the storage yard
1762in Fort Myers, Carter Signs re - erected the sign on December 4,
17752008, at the new Carter site, a non - permitted location.
178622 . On Januar y 21, 2009, Carter obtained an electrical
1797permit from the City of Miami for the new Carter site.
18082 3 . During the first half of 2009, CBS identified property
1820as a potential location for a sign. At the time, CBS was aware
1833that the identified property was ne xt door to the new Carter site,
184625 feet away , and only 200 feet from the Tabernacle of God church
1859location.
186024 . On or about April 15, 2009, t he final inspection for the
1874new Carter site location was completed by the C ity of Miami .
188725 . On or about Septembe r 29, 2009, CBS obtained local
1899government permission from the Zoning Administrator for the City
1908of Miami for its proposed location .
191526 . On October 1, 2009, CBS submitted an application to the
1927Department for outdoor advertising permits for a structure with
1936two faces knowing that the site was located next to the new Carter
1949site. The Department assigned the CBS application numbers 57663
1958and 57664 for the location 3800 Northwest 2nd Avenue off I - 95 in
1972Miami, Florida ( " proposed site " ) .
197927 . CBS was aware that Carter had obtained a building permit
1991to erect signs at new Carter site before making application to the
2003Department.
200428 . The Department hired Cardno TBE, an engineering firm, to
2015perform its fieldwork relating to the CBS application .
202429 . On or about Octob er 9 , 2009, Mack Barnes ( " Barnes " ), a
2039Cardno TBE outdoor advertising inspector, was assigned to perform
2048an outdoor advertising inspection and site visit related to the
2058CBS application dated October 1, 2009.
206430 . Barnes performed field measurements during h is
2073inspection to evaluate CBS ' application for the Department.
2082Barnes discovered that the distance between CBS ' proposed site
2092location for its sign and the nearest permitted signs measured
2102less than 1,500 feet from a permitted location that was assigned
2114t ag numbers BV314/315 .
211931 . While performing the fieldwork , Barnes discovered a sign
2129structure bearing tag numbers BV314/315 on the catwalk located at
2139milepost 0.873, not at the permitted location at milepost 0.906.
214932 . Barnes filled out an illegal complia nce report for the
2161structure at 0 .873 that was not permitted.
216933 . On October 30, 2009, Barnes also walked the whole
2180perimeter of the Tabernacle of God Christ c hurch site and
2191discovered that the Tabernacle Sign was no longer located at its
2202permitted locati on. Additionally, tags BV314/315 were not posted
2211or hanging from any location at the church site.
222034 . On or about October 22, 2009, CBS submitted a letter to
2233the Department with attached photographs stating:
2239We believe if you conduct your own
2246investigati on, you will come to the
2253inescapable conclusion that Carter ' s sign
2260permitted by BV314/315 has been disassembled
2266and removed. The former location was non -
2274conforming under state law and they have no
2282authority to re - establish their position
2289there. Their new sign at 221 NW 38th St[reet]
2298is being illegally maintained pursuant to FS
2305497, 14 - 10.007(4), and 14 - 10.007(6)(b). As
2314such, we respectfully request that you not
2321consider this illegal location in the review
2328of the CBS Outdoor application 57663/57664 at
2335380 0 NW 2n d Ave[nue] . [ 3 / ]
234635 . On or about October 2 8 , 2009, Carter obtained local
2358government permission from the Zoning Administrator of the City of
2368Miami for the new Carter site .
237536 . Carter also secured a building permit from the City of
2387Miami to re - erect the s ign.
239537 . On or about October 30 , 2009, Carter submitted an
2406application to the Department for an outdoor advertising permit
2415assigned application numbers 57723 and 57724, for new tags for the
2426new Carter site at milepost 0 .873.
243338 . Rex Hodges ( " Hodges " ), a principal of Carter, explained
2445at hearing it was a mistake for Carter to wait so long to submit
2459the application for the new Carter site location even though the
2470company was " working on multiple locations . " He also admitted ,
" 2480[ we ] knew needed a permi t before could move the Tabernacle Sign
2494to 221 Northwest 38th Street . . . . [we] were very busy and [it]
2509fell through the cracks. "
251339 . On October 30, 2009, the Department issued a Notice of
2525Denied Application to CBS providing the following grounds for the
2535proposed action: " Sign does not meet spacing requirements (1500 '
2545for Interstates, 1000 ' for FAP). In conflict with permitted
2555sign(s), tag#(s): BV314/315 , Held by: Carter Pritchett. "
256240 . On November 10, 2009, the Department returned Carter ' s
2574October 3 0, 2009, application for incompleteness. Carter failed
2583to include the required information regarding designation for
2591future land use and paid an $88.75 application fee instead of an
2603$87.00 fee. 4 /
260741 . On November 16, 2009, the Department issued Carter a
2618N otice of Violation - Illegally Erected Sign ( " Notice " ) for the
2631unpermitted erected Carter sign at the new Carter site .
264142 . The Notice specified that Carter may file a completed
2652application for a state outdoor advertising permit to determine
2661whether the sign structure is eligible for issuance of permit.
2671Carter did not submit a request for hearing in response to the
2683Notice.
268443 . On or about November 19, 2009, CBS filed its petition
2696protest ing its Notice of Denied Application and requested a formal
2707hearing.
270844 . On November 23, 2009, Carter resubmitted the October 30,
27192009, completed application for the new Carter site . The
2729Department assigned Carter ' s application numbers 57749 and 57750
2739for the new Carter site. The Department deemed the Carter
2749application co mplete but did not process it due to the pending
2761October 1, 2 009, application for CBS ' outdoor advertising sign
2772permit within the same vicinity .
277845 . On or about December 4 , 20 09 , Barnes performed a fi el d
2793review for Carter ' s application 57749 and 57750 and discovered
2804that tags BV314/315 were still on the billboard catwalk at the new
2816Carter site .
28194 6 . The Department ' s inspection and investigation revealed
2830that Carter ' s nonconforming Tabernacle S ign was not located at the
2843permitted location.
284547 . Based upon t he investigation , o n or about December 18,
28582009, the Department issued a Notice of Intent to Revoke Sign
2869Permit for Violation to Carter. The notice provided the following
2879basis for revocation: " This nonconforming sign no longer exists
2888at the permitted lo cation and is deemed abandoned by the
2899Departme nt, pursuant to s. 14 - 10.007(6)( b), Florida Administrative
2910Code. "
291148 . Carter only recognized that the permit tags BV31 4 /31 5
2924were not at the Tabernacle church site after being notified by the
2936Department . Hodge s sent Carter ' s crew to find the tags , which
2950were posted on the catwalk of the sign at the new Carter site .
2964Tags BV314/315 were not permitted for the new Carter site .
297549 . After the tags were located, Hodges personally took the
2986permit tags BV31 4 /31 5 and a ttached them to the fence surrounding
3000the Tabernacle church on a tag board on or about December 19,
30122009.
301350 . On January 15, 2010, Carter protested the Notice of
3024Intent to Revoke.
3027CONCLUSIONS OF LAW
303051 . DOAH has jurisdiction over the subject matter of t his
3042proceeding and of t he parties thereto pursuant to section
3052120.57(1 ).
305452 . Chapter 479 provides Respondent the authority to
3063regulate outdoor advertising and to issue permits for " signs in
3073areas adjacent to state highways. "
307853 . This proceeding is de nov o. § 120.57(1)(k), Fla. Stat.
309054 . T he party seeking the affirmative of an issue before an
3103administrative tr ibunal bears the burden to prove its allegation.
3113Fla. Dep ' t of Transp. v. J.W.C. , 396 So. 2d 778, 788 (Fla. 1st DCA
31291981). " Findings of fact shal l be based upon a preponderance of
3141the evidence, except in penal or lic ensure disciplinary
3150proceedings , . . . . " § 120.57(1)(j), Fla. Stat.
31595 5 . Accordingly , t he Department bears the burden of proof by
3172clear and convincing evidence a s the party seeking to revoke
3183Carter ' s sign permits tag numbers BV314/315 in DOAH Case Number
319511 - 1681. Likewise , Petitioner CBS, as the applicant bears the
3206burden of proving, by a preponderance of the evidence that it
3217should be granted the permit for which it has applied in D OAH Case
3231N umber 11 - 1682.
323656 . S ect ion 479.02(1) gives Respondent the authority to
3247administer and enforce the provisions of c hapter 479. An agency
3258is afforded wide discretion in the interpretation of the statute
3268which it administers. Republic Media v. Dep ' t of Transp. , 714 So.
32812d 1203, 1205 (Fla. 5th DCA 1998); Atlantic Outdoor Advertising v.
3292Dep ' t of Transp. , 518 So. 2d 384, 386 (Fla. 1st DCA 1987), rev.
3307den ied , 525 So. 2d 876 (Fla. 1988); Natelson v. Dep ' t of Ins. , 454
3323So. 2d 31, 32 (Fla. 1st DCA 1984), pet. for rev. den ied , 461 So.
33382d 115 (Fla. 1985).
3342Carter ' s Notice of Intent to Revoke Sign Permit for Violation
335457 . T he Department ' s determination regarding the Notice of
3366In tent to Revoke Sign Permit for V iolation issued to Carter is
3379based on Florida Admi nistrative Code Rule 14 - 10.007(6)(b) , which
3390provides in pertinent part:
3394(6) A nonconforming sign may continue to exist
3402so long as it is not destroyed, abandoned, or
3411discontinued. " Destroyed, " " abandoned, " and
" 3415discontinued " have the following meanings:
3420* * *
3423(b) A nonconforming sign is " abandoned " or
" 3430discontinued " when a sign structure no longer
3437exists at the permitted location or the sign
3445owner fails to operate and maintain the sign
3453for a period of 12 months or longer. Signs
3462displaying bona fide public interest messages
3468are not " abandoned " or " discontinued " within
3474the meaning of this section. The following
3481conditions shall be considered failure to
3487operate and maintain the sign:
34921. Signs displaying only an " available for
3499lease " or similar messag e,
35042. Signs displaying advertising for a product
3511or service which is no longer available,
35183. Signs which are blank or do not identify a
3528particular product, service, or facility.
353358 . The definition of " sign structure " in s ection 4 79.01(24)
3545provides in pe rtinent part:
3550(24) " Sign structure " m eans all the
3557interrelated parts and material, such as
3563beams, poles, and stringers, which are
3569constructed for the purpose of supporting or
3576displaying a message or informative contents.
358259 . The evidence in this case de monstrated that Carter
3593violated the nonconforming sign policy of the Department expressed
3602in the criteria set forth in the rule provisions quoted above.
3613The record evidence indisputably shows the Department issued
3621Carter tags BV314/315 for the permitted l ocation , 3825 Northwest
36312nd Avenue , in Miami . T he evidence further demonstrates that on
3643December 2, 2008, Petitioner Carter voluntarily disassembled the
3651nonconforming Tabernacle Sign and moved all the beams, poles,
3660stringers, faces, and interrelated parts to Fort Myers for an
3670upgrade . On December 4, 2008, Carter re - erected the sign at the
3684new Carter site , thereby abandoning the 3825 NW 2 nd Avenue
3695location because the nonconforming sign " no longer exist s " at the
3706permitted location .
370960 . The arguments asser ted by Carter in its Proposed
3720Reco mmended Order do not change Carter ' s abandoned status. Carter
3732contends that it did not abandon the Tabernacle Sign because the
3743Department failed to show Carter " intentional ly and voluntarily
3752relinquished further use of th e Tabernacle Sign . " This case is
3764distinguishable from Hobbs v . D ep ' t of Transp. , 831 So. 2 d 745 ,
3780(Fla. 5th DCA 2002) , in that Carter belatedly sought a permit for
3792a new location , after voluntarily removing the permitted
3800nonconforming sign from its origina l location, which is totally
3810unlike the owner in Hobbs , who immediately took action to obtain a
3822new permit for the sign, once he learned that the previous permit
3834had been canceled.
383761 . Additionally, rule 14 - 10.007(6)(b) provides an objective
3847test for det ermining a party's intent , namely: (a) is the sign
3859structure still at the permitted location or (b) has the sign been
3871operated and maintained at the site in the prior 12 months? 5 / I f
3886the answer is no, as in this case, then the sign is abandoned and
3900disco ntinued.
39026 2 . Carter ' s argument that it relocated the nonconforming
3914Tabernacle Sign is also rejected. Section 479 .15 (3) - (6) and rule
392714 - 10.004(11) limit the circumstances under which relocation
3936applies in that a nonconforming sign can be relocated only if : (a)
3949it is made necessary by a public road works project ; (b) the sign
3962is moved within 100 feet of the original location ; and (c) the
3974party has the Department ' s approval. The credible evidence in
3985this matter shows that the new Carter site is more than 10 0 feet
3999away from the Tabernacle Sign site, Carter failed to get the
4010Department ' s permission to move, and the record is void of any
4023evidence that the Department acquired public land on which the
4033Tabernacle Sign was situated or any Department project existed
4042that impacted the property on which the sign was lawfully
4052situated . Further, Hodges testified at hearing that Carter knew
4062that it needed a permit before it could move the Tabernacle Sign.
4074Therefore, Carter did not relocate the Tabernacle Sign to a
4084confo rming location under the la w.
409163 . The Department has met its burden and demonstrated that
4102Carter abandoned - not relocated - the sign as argued by Carter
4114because the Tabernacle Sign " no longer exist s " at the permitted
4125location due to Carter voluntarily removi ng it on December 2,
41362008, in violation of rule 14 - 10.007(6)(b) . Therefore, Carter ' s
4149permit should be revoked under the Department ' s authority in
4160section 479.08.
4162CBS Notice of Denied Application
416764 . The Department denied C BS ' application for a permit
4179pro viding the following grounds for the proposed action: " Sign
4189does not meet spacing requirements (1500 ' for Interstates, 1000 '
4200for FAP). In conflict with permitted sign(s), tag#(s): BV314/315.
4209Held by: Carter Pritchett. "
421365 . The spacing requirement that th e Department claims CBS '
4225p roposed sign does not meet is section 479.07(9)(a)1. ' s mandate
4237that to be permitted, a sign must be no less than " one thousand
4250five hundred feet from any other permitted sign on the same side
4262of the highway, if on an interstate hi ghway. "
427166 . Carter seeks to inject numerous other issues into this
4282proceeding concerning CBS ' application that the Department did not
4292allege in its No tice of Denied O utdoor Advertising Permit
4303Application. Even though Carter refers to itself as an interve no r
4315in its Proposed Recommended Order and contends it can advance
4325additional grounds for the denial of CBS ' s application based on
4337its intervenor status , Carter did not petition for leave to
4347intervene in this matter pursuant to rule 28 - 106.205 .
4358Accordingly , Carter is not an intervenor and the undersigned need
4368not consider any of Carter ' s contentions claimed under intervenor
4379status. Therefore, the undersigned declines to consider any
4387additional issues Carter raises as grounds for CBS ' s denial other
4399than the Department ' s sole noticed issue of spacing.
440967 . Even if the undersigned considered Carter ' s lengthy
4420argument in its Proposed Recommended Order regarding the City of
4430Miami ' s completion and execution of local permission forms in
4441error and whether they are contrary to the City of Miami ' s policy ,
4455a ny issues related to the City of Miami are not before this
4468tribunal.
446968 . Further, Carter ' s assertion of application priority is a
4481red herring. The bottom line is the Department processes sign
4491permit applications in the order of the date and time of receipt
4503of complete d appl ications pursuant to rule 14 - 10. 004(1)(c).
4515Therefore under any analysis, CBS submitted its outdoor
4523advertising permit application on October 1, 2009, and is first in
4534line before either of Carte rs ' 2009 application submissions.
45446 9 . Petitioner CBS does not dispute that its proposed sign
4556is less than 1,500 feet from the nearest permitted sign on the
4569same side of the highway [I - 95]. Rather, CBS has taken the
4582position and met its burden to show tha t its application was
4594properly filed and administered by the Department.
460170 . Since the undersigned has determined that the permit
4611issued for Carter sign bearing tag numbers BV314/315 should be
4621revoked based on abandonment , the Department has no grounds to
4631withhold the permit from CBS as the sole reason for application
4642denial ceases to exist. Accordingly , the CBS spacing conflict is
4652resolved and there is no further basis to deny CBS ' permit
4664applications.
4665RECOMMENDATION
4666Based on the foregoing Findings of Fa ct and Conclusions of
4677Law, it is
4680RECOMMENDED the Florida Department of Transportation enter a
4688final order upholding Carter ' s Notice of Intent to Revoke Sign
4700Permit for Violation and that the Department grant CBS ' permit
4711application s .
4714DONE AND ENTERED this 17th day of April , 20 12 , in
4725Tallahassee, Leon County, Florida.
4729S
4730JUNE C. McKINNEY
4733Administrative Law Judge
4736Division of Administrative Hearings
4740The DeSoto Building
47431230 Apalachee Parkway
4746Tallahassee, Florida 32399 - 3060
4751(850) 488 - 9675
4755Fax Filing (850) 921 - 6847
4761www.doah.state.fl.us
4762Filed with the Clerk of the
4768Division of Administrative Hearings
4772this 17th day of April , 2012 .
4779ENDNOTES
47801 / Scott Carter Signs is a family business that builds, installs,
4792and disassemble s signs. The company has been in outdoor
4802advertising since at least 1956. Scott Carter has been in the
4813sign business since a child, grew up in the business, and
4824inherited the company from his father in 1977.
48322 / Carter ' s Exhibit 8 0 .
48413 / Carter's Exhibi t 45.
48474 / Due to recent changes in the fee scale, t he Department would
4861have processed Carter's application if the only issue had been the
4872incorrect application fee . However, the Department could not
4881process the application without the information regardi ng
4889designation for future land use.
48945 / Carter also fails to meet the criteria of section (b) . The
4908record shows that Carter neither operated nor maintained the site
4918from December 2, 2008, when Carter voluntarily removed the sign
4928and tags , until at least December 19, 2009, when Hodges placed the
4940tags on the Tabernacle church fence, which is over 12 months.
4951COPIES FURNISHED :
4954Deanna Hurt, Clerk of Agency Proceedings
4960Department of Transportation
4963Haydon Burns Building
4966605 Suwannee Street, Mail Station 58
4972Ta llahassee, Florida 32399 - 0450
4978Anath Prasad, Secretary
4981Department of Transportation
4984Haydon Burns Building,
4987605 Suwannee Street, Mail Station 57
4993Tallahassee, Florida 32399 - 0450
4998Gerald B. Curington, General Counsel
5003Department of Transportation
5006Haydon Bur ns Building
5010605 Suwannee Street, Mail Station 58
5016Tallahassee, Florida 32399 - 0450
5021Kimberly Clark Menchion, Esquire
5025Department of Transportation
5028605 Suwannee Street, Mail Station 58
5034Tallahassee, Florida 32399
5037Carol Ann Licko , Esquire
5041Hogan Lovells US L LP
50461111 Brickell Avenue, Suite 1900
5051Miami, Florida 33131
5054Thomas R. Bolf, Esquire
5058Greenspoon Marder, P.A.
506115th Floor
5063200 East Broward Boulevard
5067Fort Lauderdale, Florida 33301
5071N OTICE OF RIGHT TO SUBMIT EXCEPTIONS
5078All parties have the right to submit wr itten exceptions within
508915 days from the date of this Recommended Order. Any exceptions
5100to this Recommended Order should be filed with the agency that
5111will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 08/30/2012
- Proceedings: Notice of Designation of Primary and Secondary E-mail Addresses for Service of Pleadings and Papers filed.
- PDF:
- Date: 08/20/2012
- Proceedings: Carter Outdoor Advertising's Notice of Filing Designation of Record on Appeal filed.
- PDF:
- Date: 08/16/2012
- Proceedings: Notice of Correction to Footnote 1 of Carter's Reply in Support of Motion for Stay of Final Order Pending Appeal filed.
- PDF:
- Date: 08/16/2012
- Proceedings: Carter Outdoor Advertising's Reply in Support of Motion for Stay of Final Order Pending Appeal filed.
- PDF:
- Date: 08/08/2012
- Proceedings: Carter Outdoor Advertising's Motion for Stay of Final Order Pending Appeal filed.
- PDF:
- Date: 07/12/2012
- Proceedings: Carter Outdoor Advertising's Response to CBS Outdoor, Inc.'s Exceptions to Recommended Order filed.
- PDF:
- Date: 07/12/2012
- Proceedings: Carter Outdoor Advertising's Response to Respondent Department of Transportation's Exceptions to Recommended Order filed.
- PDF:
- Date: 07/12/2012
- Proceedings: CBS Outdoor Inc.'s Response to Carter Exceptions to Recommended Order filed.
- PDF:
- Date: 07/12/2012
- Proceedings: Response to Petitioner Carter Pritchett Advertising, Inc.'s Exceptions filed.
- PDF:
- Date: 07/12/2012
- Proceedings: Carter Outdoor Advertising's Exceptions to Recommended Order filed.
- PDF:
- Date: 07/11/2012
- Proceedings: CBS Outdoor Inc.'s Response to Carter Exceptions to Recommended Order filed.
- PDF:
- Date: 07/11/2012
- Proceedings: Response to Petitioner Carter Pritchett Advertising, Inc.'s Exceptions filed.
- PDF:
- Date: 05/14/2012
- Proceedings: Carter Outdoor Advertising's Response to CBS Outdoor, Inc.'s Exceptions to Recommended Order filed.
- PDF:
- Date: 05/14/2012
- Proceedings: Carter Outdoor Advertising's Response to Respondent Department of Transportation's Exceptions to Recommended Order filed.
- PDF:
- Date: 05/01/2012
- Proceedings: Carter Outdoor Advertising's Exceptions to Recommended Order filed.
- PDF:
- Date: 04/17/2012
- Proceedings: Recommended Order (hearing held October 18-19, 2011, and January 25, 2012). CASE CLOSED.
- PDF:
- Date: 04/17/2012
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/19/2012
- Proceedings: Order Granting Carter Outdoor Advertising`s Unopposed Motion for Enlargement of Time, Nunc Pro Tunc, to File its Closing Statement and Proposed Recommended Order Eight Minutes Late.
- PDF:
- Date: 03/15/2012
- Proceedings: Carter Outdoor Advertising's Unopposed Motion for Enlargement of Time, Nunc Pro Tunc, to File its Closing Statement and Proposed Recommended Order Eight Minutes Late filed.
- PDF:
- Date: 03/15/2012
- Proceedings: Carter Outdoor Advertising's Notice of Filing its Final Hearing Exhibits filed.
- PDF:
- Date: 03/15/2012
- Proceedings: Carter Outdoor Advertising's Closing Statement and Proposed Recommended Order filed.
- PDF:
- Date: 03/14/2012
- Proceedings: CBs' Notice of Filing Proposed Recommended Order (filed in Case No. 11-001682).
- PDF:
- Date: 03/14/2012
- Proceedings: Proposed Recommended Order of Respondent, Department of Transportation filed.
- PDF:
- Date: 03/14/2012
- Proceedings: CBs' Notice of Filing of Historical Versions of Rule 14-10.007, F.A.C. (fully signed; filed in Case No. 11-001682).
- PDF:
- Date: 03/14/2012
- Proceedings: CBS' Notice of Filing of Historical Versions of Rule 14-10.007, F.A.C (filed in Case No. 11-001682).
- PDF:
- Date: 03/02/2012
- Proceedings: Notice of Filing Corrections in October 18-19, 2011 Hearing Transcripts filed.
- Date: 02/13/2012
- Proceedings: Transcript of Proceedings (volumes III and IV; not available for viewing) filed.
- Date: 01/25/2012
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/23/2012
- Proceedings: Carter Outdoor Advertising Unopposed Motion to Present Orlando Toledo by Telephone at the Final Hearing filed.
- PDF:
- Date: 01/13/2012
- Proceedings: CBS Outdoor, Inc.'s Disclosure of Witness Lourdes Slazyk (filed in Case No. 11-001682).
- PDF:
- Date: 01/10/2012
- Proceedings: Notice of Taking Deposition (of O. Toledo; filed in Case No. 11-001682).
- Date: 01/09/2012
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 01/09/2012
- Proceedings: Carter's Reply Memorandum in Support of Motion for Leave to Add a Trial Witness filed.
- PDF:
- Date: 01/05/2012
- Proceedings: Respondent's Response and Objection to Petitioner's, Carter Pritchett, Motion for Leave to Add a Trial Witness filed.
- PDF:
- Date: 01/04/2012
- Proceedings: CBS Outdoor, Inc.'s Response in Opposition to Carter Outdoor Advertising's Motion for Leave to Add a Trial Witness (filed in Case No. 11-001682).
- PDF:
- Date: 01/03/2012
- Proceedings: Notice of Supplement to CBS Outdoor, Inc.'s (Proposed) Exhibit List (filed in Case No. 11-001682).
- PDF:
- Date: 12/28/2011
- Proceedings: Carter Outdoor Advertising's Motion for Leave to Add a Trial Witness filed.
- PDF:
- Date: 12/27/2011
- Proceedings: (Proposed) Order on Stipulation for Substitution of Counsel filed.
- PDF:
- Date: 12/20/2011
- Proceedings: Stipulation for Substitution of Counsel (filed in Case No. 11-001682).
- Date: 12/19/2011
- Proceedings: Transcript Volume two-volume (not available for viewing) filed.
- PDF:
- Date: 10/26/2011
- Proceedings: Notice of Filing Affidavit of Service (Carter-Pritchett/Rex Hodges; filed in Case No. 11-001682).
- PDF:
- Date: 10/26/2011
- Proceedings: Notice of Filing Affidavit of Service (Vanessa Acosta; filed in Case No. 11-001682).
- PDF:
- Date: 10/21/2011
- Proceedings: Motion for Summary Final Order and Authorities Cited Therein filed.
- PDF:
- Date: 10/21/2011
- Proceedings: Order Re-scheduling Hearing (hearing set for January 25, 2012; 9:00 a.m.; Tallahassee, FL).
- Date: 10/19/2011
- Proceedings: CASE STATUS: Hearing Partially Held; continued to January 25, 2012; 9:00 a.m.; Tallahassee, FL.
- Date: 10/18/2011
- Proceedings: CASE STATUS: Hearing Partially Held; continued to October 19, 2011; 9:00 a.m.; Miami, FL.
- PDF:
- Date: 10/18/2011
- Proceedings: CBS Outdoor, Inc.'s Response to Carter Outdoor Advertising's Motion for Summary Final Order (filed in Case No. 11-001682).
- PDF:
- Date: 10/17/2011
- Proceedings: Carter Outdoor Advertising's Response in Opposition to CBS Outdoor, Inc.'s Motion for Summary Final Order filed.
- PDF:
- Date: 10/17/2011
- Proceedings: Carter Outdoor Advertising's Motion for Summary Final Order Denying CBS Outdoor Inc.'s Permit Application filed.
- PDF:
- Date: 10/17/2011
- Proceedings: CBS Outdoor, Inc.'s Motion for Summary Final Order (filed in Case No. 11-001682).
- PDF:
- Date: 10/14/2011
- Proceedings: Notice of Filing Affidavit of Service (to M. Barnes; filed in Case No. 11-001682).
- PDF:
- Date: 10/14/2011
- Proceedings: Notice of Filing Affidavits of Service (to V. Acosta and E. Scherer) filed.
- PDF:
- Date: 10/10/2011
- Proceedings: Notice of Filing Affidavit of Service (to J. Jose; filed in Case No. 11-001682).
- PDF:
- Date: 09/27/2011
- Proceedings: Notice of Taking Deposition (of B. Hodges; filed in Case No. 11-001682).
- PDF:
- Date: 09/20/2011
- Proceedings: Petitioner, CBS Outdoor Inc.'s, Responses to First Set of Interrogatories in DOAH Case No. 11-1682 (filed in Case No. 11-001682).
- PDF:
- Date: 09/16/2011
- Proceedings: Carter Outdoor Advertising's Responses and Objections to Second Request for Admissions by Petitioner in DOAH Case No. 11-1682, CBS Outdoor, Inc filed.
- PDF:
- Date: 09/12/2011
- Proceedings: Petitioner, CBS Outdoor Inc.'s, Response to Second Request for Production from Carter (filed in Case No. 11-001682).
- PDF:
- Date: 08/30/2011
- Proceedings: Notice of Taking Deposition (of R. Hodges; filed in Case No. 11-001682).
- PDF:
- Date: 08/19/2011
- Proceedings: First Set of Interrogatories to Petitioner in DOAH Case No. 11-1682, CBS Outdoor, Inc filed.
- PDF:
- Date: 08/19/2011
- Proceedings: Second Request for Production to Petitioner in DOAH Case No. 11-1682, CBS Outdoor, Inc. filed.
- PDF:
- Date: 08/16/2011
- Proceedings: Request for Admissions to Petitioner in DOAH Case No. 11-1681, Carter Outdoor Advertising (filed in Case No. 11-001682).
- PDF:
- Date: 08/16/2011
- Proceedings: Notice of Appearance (Thomas Bolf) (filed in Case No. 11-001682).
- PDF:
- Date: 08/09/2011
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 18 and 19, 2011; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 07/29/2011
- Proceedings: Petitioner, CBS Outdoor Inc.'s, Notice of Filing Privilege Log filed.
- PDF:
- Date: 07/20/2011
- Proceedings: Petitioner, CBS Outdoor Inc.'s Notice of Withdrawing Notice of Conflict filed.
- PDF:
- Date: 06/22/2011
- Proceedings: Response to Petitioner's, Carter Pritchett Advertising, Inc., Request for Production of Documents (filed in Case No. 11-001682).
- PDF:
- Date: 06/22/2011
- Proceedings: Response to Petitioner's, Carter Pritchett Advertising, Inc., Request for Production of Documents filed.
- PDF:
- Date: 06/06/2011
- Proceedings: CBS Outdoor Inc.'s Response to Carter Outdoor Advertising's Request for Production to Petitioner in DOAH Case No. 11-1682, CBS Outdoor, Inc filed.
- PDF:
- Date: 06/06/2011
- Proceedings: The Department of Transportation's Response to Petitioner's, CBS Outdoor, Inc., Request for Production of Documents (filed in Case No. 11-001682).
- PDF:
- Date: 06/06/2011
- Proceedings: The Department of Transportation;s Response to Petitioner's, CBS Outdoor, Inc., Request for Production of Documents filed.
- PDF:
- Date: 06/02/2011
- Proceedings: Petitioner Carter Pritchett Advertising, Inc.'s Responses and Objections to Petitioner CBS Outdoor's Request for Production filed.
- PDF:
- Date: 06/02/2011
- Proceedings: Petitioner Carter Pritchett Advertising, Inc.'s Response to Petitioner CBS Outdoor's Request for Admissions filed.
- PDF:
- Date: 06/01/2011
- Proceedings: Notice of Corrected Name for Petitioner, Carter Pritchett Advertising, Inc. (filed in Case No. 11-001682).
- PDF:
- Date: 06/01/2011
- Proceedings: Notice of Corrected Name for Petitioner, Carter Pritchett Advertising, Inc. filed.
- PDF:
- Date: 05/25/2011
- Proceedings: Request for Production to Petitioner in DOAH Case No. 11-1682 CBS Ourdoor, Inc., filed.
- PDF:
- Date: 05/25/2011
- Proceedings: Request for Production to Respondent the Department of Transportation filed.
- PDF:
- Date: 05/23/2011
- Proceedings: Petitioner Carter Outdoor Advertising's Response to Respondent's First Request for Admissions filed.
- PDF:
- Date: 05/19/2011
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 23 and 24, 2011; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 05/19/2011
- Proceedings: CBS Outdoor Inc.'s Response to Respondent's First Request for Production of Documents filed.
- PDF:
- Date: 05/19/2011
- Proceedings: CBS Outdoor Inc.'s Response to Respondent's Request for Admissions to Petitioner filed.
- PDF:
- Date: 05/09/2011
- Proceedings: CBS Outdoor Inc.'s Petition to Intervene in Alignment with Respondent, Florida Department of Transportation (filed in Case No. 11-001682).
- PDF:
- Date: 05/06/2011
- Proceedings: Request for Admissions to Petitioner in DOAH Case No. 11-1681, Carter Outdoor Advertising filed.
- PDF:
- Date: 05/06/2011
- Proceedings: Request for Production to Petitioner in DOAH Case No. 11-1681, Carter Outdoor Advertising filed.
- PDF:
- Date: 04/28/2011
- Proceedings: Notice of Hearing (hearing set for June 14 and 15, 2011; 9:00 a.m.; Miami, FL).
Case Information
- Judge:
- JUNE C. MCKINNEY
- Date Filed:
- 04/05/2011
- Date Assignment:
- 04/19/2011
- Last Docket Entry:
- 08/30/2012
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Thomas R. Bolf, Esquire
Address of Record -
Catherine S. Dorvil, Esquire
Address of Record -
Carol Ann Licko, Esquire
Address of Record -
Kimberly Clark Menchion, Assistant General Counsel
Address of Record -
Julie E Nevins, Esquire
Address of Record -
John Pelzer, Esquire
Address of Record -
John Henry Pelzer, Esquire
Address of Record -
Julie E. Nevins, Esquire
Address of Record