11-001681 Carter Outdoor Advertising vs. Department Of Transportation
 Status: Closed
Recommended Order on Tuesday, April 17, 2012.


View Dockets  
Summary: DOT met its burden and demonstrated that Carter abandoned its nonconforming sign because it no longer exists at the permitted location after Carter voluntarily removed it in violation of rule 14-10.007(6)(b). Therefore, Carter's permit should be revoked.

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.

Select the PDF icon to view the document.
PDF
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: 08/27/2012
Proceedings: Notice of Appearance (filed by John Pelzer).
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: 08/08/2012
Proceedings: Notice of Appeal filed.
PDF:
Date: 07/12/2012
Proceedings: Agency Final Order
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: Agency Final 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: 07/12/2012
Proceedings: CBS Outdoor Inc.'s Exceptions to Recommended Order filed.
PDF:
Date: 07/12/2012
Proceedings: Respondent's Exceptions to Recommended Order filed.
PDF:
Date: 07/11/2012
Proceedings: Final 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: 07/11/2012
Proceedings: CBS Outdoor Inc.'s Exceptions to the Recommended Order filed.
PDF:
Date: 07/11/2012
Proceedings: Respondent's Exceptions to Recommended Order 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
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.
PDF:
Date: 02/03/2012
Proceedings: Notice of Designation of Deposition of Lynn Holschuh filed.
Date: 01/25/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/24/2012
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 01/23/2012
Proceedings: Carter Outdoor Advertising Unopposed Motion to Present Orlando Toledo by Telephone at the Final Hearing filed.
PDF:
Date: 01/19/2012
Proceedings: Affidavit of Warren Bittner (filed in Case No. 11-001682).
PDF:
Date: 01/18/2012
Proceedings: Notice of Filing Deposition of Lynn Holschuh filed.
PDF:
Date: 01/18/2012
Proceedings: Notice of Cancellation of Deposition (of L. Slazyk) filed.
PDF:
Date: 01/17/2012
Proceedings: Notice of Taking Deposition (of L. Slazyk) 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: Order on Stipulation for Substitution of Counsel.
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: Notice of Hearing 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: Notice of Hearing (filed in Case No. 11-001682).
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: 10/10/2011
Proceedings: Joint Pre-hearing Stipulation (filed in Case No. 11-001682).
PDF:
Date: 10/10/2011
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 10/06/2011
Proceedings: Notice to Produce (filed in Case No. 11-001682).
PDF:
Date: 10/06/2011
Proceedings: Amended Notice of Taking Deposition (of M. Barnes) filed.
PDF:
Date: 10/05/2011
Proceedings: Notice of Taking Deposition (of M. Barnes) filed.
PDF:
Date: 09/28/2011
Proceedings: Notice of Taking Deposition (of J. Garner) filed.
PDF:
Date: 09/27/2011
Proceedings: Re-notice of Taking Deposition (of V. Acosta) filed.
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: Notice of Taking Deposition (of R. Jessee) filed.
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: 09/14/2011
Proceedings: Notice of Taking Deposition (of L. Holschuh) filed.
PDF:
Date: 09/14/2011
Proceedings: Notice of Taking Deposition (of V. Acosta) 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 E. Scherer) filed.
PDF:
Date: 08/30/2011
Proceedings: Notice of Taking Deposition (of J. Little) filed.
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: 08/19/2011
Proceedings: Notice of Appearance (Julie Nevins) 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: 08/01/2011
Proceedings: Unopposed Motion to Continue Final Hearing filed.
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: 07/20/2011
Proceedings: Petitioner, CBS Outdoor Inc.'s 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: 05/12/2011
Proceedings: Unopposed Motion to Continue Final Hearing 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: 05/06/2011
Proceedings: Petitioner's Request for Production to Respondent filed.
PDF:
Date: 04/28/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/28/2011
Proceedings: Notice of Hearing (hearing set for June 14 and 15, 2011; 9:00 a.m.; Miami, FL).
PDF:
Date: 04/22/2011
Proceedings: Order of Consolidation (DOAH Case Nos. 11-1681 and 11-1682).
PDF:
Date: 04/21/2011
Proceedings: Respondent's First Request for Admissions to Petitioner filed.
PDF:
Date: 04/14/2011
Proceedings: Joint Motion to Consolidate Cases filed.
PDF:
Date: 04/13/2011
Proceedings: Response to Initial Order filed.
PDF:
Date: 04/06/2011
Proceedings: Initial Order.
PDF:
Date: 04/05/2011
Proceedings: Order Relinquishing Jurisdiction to the Division of Administrative Hearing filed.
PDF:
Date: 04/05/2011
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 04/05/2011
Proceedings: Notice of Intent to Revoke Sign Permit for Violation filed.
PDF:
Date: 04/05/2011
Proceedings: Agency referral filed.

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

Related Florida Statute(s) (4):