11-001682 Cbs Outdoor, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, April 17, 2012.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARTER OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) Case No. 11 - 1681

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_______________________________ )

CBS OUTDOOR, INC., )

)

Petitioner, )

)

vs. ) Case No. 11 - 1682

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal heari ng was held in this case on

Oct ober 18 and 19, 2011, in Miami, Florida, and January 25, 2012,

in Tallahassee, Florida, before June C. McKinney, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner Carter : Carol Ann Licko, Esquire

H ogan Lovells US LLP

1111 Brickell Avenue, Suite 1900

Miami, Florida 33131

For Petitioner CBS : Thomas R. Bolf, Esquire

Greenspoon Marder, P.A.

15th Floor

200 East Bro ward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

The Haydon Burns Building

605 Suwa nnee Street, Mail Station 58

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issues in this case are: whether the Department of

Transportation ( " Department " ) properly issued a Notice of Intent

to Revoke Sign Permit for V iolation to Carter Outdoor Advertising

a/k/a Carter Pritchett Advertising ( " Carter " ) for the outdoor

advertising sign permitted with tag numbers BV314/315 and whether

the Department properly denied CBS Outdoor, Inc. ' s ( " CBS " )

application for outdoor advert ising sign permit based on a spacing

conflict with the outdoor advertising sign permitted with tag

numbers BV314/315.

PRELIMINARY STATEMENT

On October 30, 2009, the Department issued CBS a Notice of

Denied Outdoor Advertising Permit Application advising th at CBS '

application was not approved for the following reason:

Sign does not meet spacing requirements (1500 '

for interstates, 1000 ' for FAP). In conflict

with permitted sign(s), tag#(s): BV314/315.

Held by: Carter - Pritchett.

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

On December 18, 2009, the Department issued a Notice of

Intent to Revoke Sign Permit for Violation , advising Carter that

the Department intended to revoke its permit, pursuant to section

479.08, Florida Statutes for the following violation:

This nonconfo rming sign no longer exist s at

the permitted location and is deemed abandoned

by the Department, pursuant to s. 14 -

10.007(6)(b), Florida Administrative Code.

On November 19, 2009, CBS filed a Petition for Formal

Proceedings, requesting a " formal administr ative hearing " on the

Departments ' preliminary denial of its a pplication.

By letter dated January 15, 2010, and received by the

Department on or about January 20, 2011, Carter requested an

informal administrative hearing, challenging the Notice of

Revocati on.

An informal hearing was held on March 18, 2011, on CBS ' s

Petition to Intervene and Motion to Transfer to the Division of

Administrative Hearings. The Department relinquished jurisdiction

to the Division of Administrative Hearings ( " DOAH " ) .

On April 5, 2011, t he Department referred the matter s to

DOAH . Petitioner Carter is the subject of DOAH Case No. 11 - 1681.

Petitioner CBS is the subject of DOAH Case No. 11 - 1682.

On April 14, 2011, the parties filed a Joint Motion to

Consolidate DOAH Case Nos. 11 - 168 1 and 11 - 1682 , which the

undersigned granted by Order of Consolidation issued April 22,

2011.

The final consolidated hearing, as noted above, was scheduled

for June 14 and 15, 2011 . The undersigned granted a continuance

and the case was rescheduled for Au gust 23 and 24, 2011. After

several continuances, the final consolidated hearing was held on

October 18 and 19 , 2011, in Miami, Florida, and January 25, 2012 ,

in Tallahassee, Florida .

At the final hearing, Carter presented the testimony of seven

witnesses : Rex Hodges, a principal of Carter, who testified as

the corporate representative for Carter; Scott C arter, a principal

of Carter and a representati ve of Scott Carter Signs, Inc.; Jean

Jose, a re presentative of the Tabernacle G od in Christ, Inc.; Joe

Lit tle, CBS ' s Vice President of Real Estate for the Southeast

Region; Ed Scherer, a former real estate representative for CBS;

Vanessa Acosta, the current Assistant Director of Building for the

City of Miami and the former Assistant Director of Building and

Z oning for the City of Miami; and Orlando Toledo , a former

representative of the City of Miami, who worked for the City of

Miami as the Zoning Administrator, Director of Building, Zoning

and Planning, and Director of Building and Zoning . Petitioner ' s

Exhib its 2, 4 and 5, 9, 11 and 12, 15 through 18, 21, 24 though

32, 40, 42, 43, 47 through 51, 55 and 56, 59, 61 though 71, 73

though 85 and 87, 88, and 92, 96, 115, 117 and 118 were received

into evidence.

CBS presented the testimony of two witnesses: Daniel

Blanton , a surv eyor who testified as an expert ; and Joe Howard

Little , CBS ' s Vice President of Real Estate for the Southeast

Region , who testified as corporate representative for CBS .

Petitioner ' s Exhibits numbered 4, 13 and 14, 18 and 19, 23, 26,

30, 33 A , 39 and 40, 42 through 44, 48, 51 and 52, 55, 57 through

62 were received into evidence .

The Department presented the testimony of two witnesses:

Robert Jessee , the Department ' s Manager of Outdoor Advertising and

Logo, who testified as corporate represent ative for the

Department; and Mack Barnes , a representative of Cardno TBE and

consultant for the Department, who served as an outdoor

advertising inspector . The Department ' s Exhibits numbered 1

through 19 were received into evidence.

The proceedings were recorded and transcribed. The

October 18 and 19, 2011, Transcript s were filed at the DOAH on

December 19, 2011, and Transcripts Volumes III and IV for the

January 25, 2011, hearing were filed on February 13, 2012. All

parties availed themselves of the ri ght to submit proposed

recommended orders. Both Petitioner s and Respondent timely filed

Proposed Recommended Orders. The undersigned has considered the

Proposed Recommended Orders, as well as the testimony and exhibits

presented at hearing in the prepara tion of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1 . The City of Miami is a competitive marke t for billboards.

2 . On December 14, 1998, the Department issued outdoor

advertising permits to Carter for the erection of a double - faced

sign and assigned permit tag numbers BV314/315 to 3825 NW 2nd

Avenue, Miami, Florida, 0.980 miles east of I - 95 at mil epost 0.906

( the " Tabernacle Sign " ).

3 . Carter leased the property for the Tabernacle Sign from

the Tabernacle God in Christ, Inc .

4 . The Tabernacle Sign was initially permitted by the

Department as a conforming sign.

5 . On or about February 6, 2002, th e Tabernacle Sign was

changed to nonconforming status pursuant to a settlement between

Carter and the Department.

6 . On August 18, 2003, Carter entered into a settlement

agreement with the City of Miami , which limit ed/restricted the

number of signs Carter can maintain in Miami to 20. The

settlement agreement also protects the Tabernacle S ign as one on

Carter ' s list of billboards protected by the City until 2028.

7 . In late 2007, t he Tabernacle God in Christ, Inc. decided

to sell the property Carter lease d for the Tabernacle S ign , and

the church listed the location for sale . The church would not

allow Carter to purchase an easement to maintain the Tabernacle

S ign at the location.

8 . Around August 2008, Carter began looking for a new

location for the Tabe rnacle Sign .

9 . Carter first leased a vacant lot as a " new location " for

the billboard. On April 9, 2008, t he City of Miami issued a

building permit to Carter for a billbo ard at the new location.

10 . After Carter obtained the permits for the new locatio n

and was ready to construct the billboard , Carter developed

concerns regarding F lorida Power and Light Company setbacks and

decided to identify an alternative location for the billboard

sign.

11 . During Carter ' s search for a n alternative location ,

Carter ' s goal was to have a conforming b illboard .

12 . Carter identified an alternate location at a site

directly to the west of the new location at 221 Northwest 38th

Street , Miami, Florida ( " new Carter site " ) , which is not within

100 feet of the Tabernacle chu rch site .

13 . C arter perf ormed the soil boring tests to design the

foundation for the billboard at the new Carter site .

14 . On September 30, 2008, Carter obtained a building permit

from the City of Miami for a billboard at 221 Northwest 38th

Street. The City of Miami transferred the permit fees previously

paid in connection with the new location to the new Carter site.

15 . Subsequently, Carter purchased the property at the new

Carter site. Carter also performed a substantial amount of

preparatory work, including engineering work and the preparation

of a survey to place a conforming sign at the new Carter site.

16 . On October 10, 2008, Carter closed on its land purchase

for the new Carter site.

17 . On October 21, 2008, Scott Carter Signs , Inc. ( " Carte r

Signs " ) 1 / installed the concrete footer for Carter at the new

Carter site in preparation to install the sign.

18 . On December 2 , 2008, Carter Signs took down the

Tabernacle Sign from the permitted location at 3825 NW 2nd Avenue

and moved it to Fort Myer s, Florida. The company ' s work order

provided the following instructions for the move: " Take down

existing sign structure DISASSEMBLED and LOAD ONTO SEMI ' S

TRANSPORT TO FT. MYERS UNLOAD IN YARD FOR ALTERATIONS . " 2 /

19 . As part of the move, the Tabernacle Sign was dismantled.

T he upper structure, which holds both sign faces , as well as every

beam, pole, and stringer was removed from the Tabernacle church

site and transported to Fort Myers.

20 . When Carter Signs removed the Tabernacle Sign, the

permitted tags BV315/314 were also removed from the permitted

location.

21 . After upgrading the Tabernacle Sign at the storage yard

in Fort Myers, Carter Signs re - erected the sign on December 4,

2008, at the new Carter site, a non - permitted location.

22 . On Januar y 21, 2009, Carter obtained an electrical

permit from the City of Miami for the new Carter site.

2 3 . During the first half of 2009, CBS identified property

as a potential location for a sign. At the time, CBS was aware

that the identified property was ne xt door to the new Carter site,

25 feet away , and only 200 feet from the Tabernacle of God church

location.

24 . On or about April 15, 2009, t he final inspection for the

new Carter site location was completed by the C ity of Miami .

25 . On or about Septembe r 29, 2009, CBS obtained local

government permission from the Zoning Administrator for the City

of Miami for its proposed location .

26 . On October 1, 2009, CBS submitted an application to the

Department for outdoor advertising permits for a structure with

two faces knowing that the site was located next to the new Carter

site. The Department assigned the CBS application numbers 57663

and 57664 for the location 3800 Northwest 2nd Avenue off I - 95 in

Miami, Florida ( " proposed site " ) .

27 . CBS was aware that Carter had obtained a building permit

to erect signs at new Carter site before making application to the

Department.

28 . The Department hired Cardno TBE, an engineering firm, to

perform its fieldwork relating to the CBS application .

29 . On or about Octob er 9 , 2009, Mack Barnes ( " Barnes " ), a

Cardno TBE outdoor advertising inspector, was assigned to perform

an outdoor advertising inspection and site visit related to the

CBS application dated October 1, 2009.

30 . Barnes performed field measurements during h is

inspection to evaluate CBS ' application for the Department.

Barnes discovered that the distance between CBS ' proposed site

location for its sign and the nearest permitted signs measured

less than 1,500 feet from a permitted location that was assigned

t ag numbers BV314/315 .

31 . While performing the fieldwork , Barnes discovered a sign

structure bearing tag numbers BV314/315 on the catwalk located at

milepost 0.873, not at the permitted location at milepost 0.906.

32 . Barnes filled out an illegal complia nce report for the

structure at 0 .873 that was not permitted.

33 . On October 30, 2009, Barnes also walked the whole

perimeter of the Tabernacle of God Christ c hurch site and

discovered that the Tabernacle Sign was no longer located at its

permitted locati on. Additionally, tags BV314/315 were not posted

or hanging from any location at the church site.

34 . On or about October 22, 2009, CBS submitted a letter to

the Department with attached photographs stating:

We believe if you conduct your own

investigati on, you will come to the

inescapable conclusion that Carter ' s sign

permitted by BV314/315 has been disassembled

and removed. The former location was non -

conforming under state law and they have no

authority to re - establish their position

there. Their new sign at 221 NW 38th St[reet]

is being illegally maintained pursuant to FS

497, 14 - 10.007(4), and 14 - 10.007(6)(b). As

such, we respectfully request that you not

consider this illegal location in the review

of the CBS Outdoor application 57663/57664 at

380 0 NW 2n d Ave[nue] . [ 3 / ]

35 . On or about October 2 8 , 2009, Carter obtained local

government permission from the Zoning Administrator of the City of

Miami for the new Carter site .

36 . Carter also secured a building permit from the City of

Miami to re - erect the s ign.

37 . On or about October 30 , 2009, Carter submitted an

application to the Department for an outdoor advertising permit

assigned application numbers 57723 and 57724, for new tags for the

new Carter site at milepost 0 .873.

38 . Rex Hodges ( " Hodges " ), a principal of Carter, explained

at hearing it was a mistake for Carter to wait so long to submit

the application for the new Carter site location even though the

company was " working on multiple locations . " He also admitted ,

" [ we ] knew needed a permi t before could move the Tabernacle Sign

to 221 Northwest 38th Street . . . . [we] were very busy and [it]

fell through the cracks. "

39 . On October 30, 2009, the Department issued a Notice of

Denied Application to CBS providing the following grounds for the

proposed action: " Sign does not meet spacing requirements (1500 '

for Interstates, 1000 ' for FAP). In conflict with permitted

sign(s), tag#(s): BV314/315 , Held by: Carter Pritchett. "

40 . On November 10, 2009, the Department returned Carter ' s

October 3 0, 2009, application for incompleteness. Carter failed

to include the required information regarding designation for

future land use and paid an $88.75 application fee instead of an

$87.00 fee. 4 /

41 . On November 16, 2009, the Department issued Carter a

N otice of Violation - Illegally Erected Sign ( " Notice " ) for the

unpermitted erected Carter sign at the new Carter site .

42 . The Notice specified that Carter may file a completed

application for a state outdoor advertising permit to determine

whether the sign structure is eligible for issuance of permit.

Carter did not submit a request for hearing in response to the

Notice.

43 . On or about November 19, 2009, CBS filed its petition

protest ing its Notice of Denied Application and requested a formal

hearing.

44 . On November 23, 2009, Carter resubmitted the October 30,

2009, completed application for the new Carter site . The

Department assigned Carter ' s application numbers 57749 and 57750

for the new Carter site. The Department deemed the Carter

application co mplete but did not process it due to the pending

October 1, 2 009, application for CBS ' outdoor advertising sign

permit within the same vicinity .

45 . On or about December 4 , 20 09 , Barnes performed a fi el d

review for Carter ' s application 57749 and 57750 and discovered

that tags BV314/315 were still on the billboard catwalk at the new

Carter site .

4 6 . The Department ' s inspection and investigation revealed

that Carter ' s nonconforming Tabernacle S ign was not located at the

permitted location.

47 . Based upon t he investigation , o n or about December 18,

2009, the Department issued a Notice of Intent to Revoke Sign

Permit for Violation to Carter. The notice provided the following

basis for revocation: " This nonconforming sign no longer exists

at the permitted lo cation and is deemed abandoned by the

Departme nt, pursuant to s. 14 - 10.007(6)( b), Florida Administrative

Code. "

48 . Carter only recognized that the permit tags BV31 4 /31 5

were not at the Tabernacle church site after being notified by the

Department . Hodge s sent Carter ' s crew to find the tags , which

were posted on the catwalk of the sign at the new Carter site .

Tags BV314/315 were not permitted for the new Carter site .

49 . After the tags were located, Hodges personally took the

permit tags BV31 4 /31 5 and a ttached them to the fence surrounding

the Tabernacle church on a tag board on or about December 19,

2009.

50 . On January 15, 2010, Carter protested the Notice of

Intent to Revoke.

CONCLUSIONS OF LAW

51 . DOAH has jurisdiction over the subject matter of t his

proceeding and of t he parties thereto pursuant to section

120.57(1 ).

52 . Chapter 479 provides Respondent the authority to

regulate outdoor advertising and to issue permits for " signs in

areas adjacent to state highways. "

53 . This proceeding is de nov o. § 120.57(1)(k), Fla. Stat.

54 . T he party seeking the affirmative of an issue before an

administrative tr ibunal bears the burden to prove its allegation.

Fla. Dep ' t of Transp. v. J.W.C. , 396 So. 2d 778, 788 (Fla. 1st DCA

1981). " Findings of fact shal l be based upon a preponderance of

the evidence, except in penal or lic ensure disciplinary

proceedings , . . . . " § 120.57(1)(j), Fla. Stat.

5 5 . Accordingly , t he Department bears the burden of proof by

clear and convincing evidence a s the party seeking to revoke

Carter ' s sign permits tag numbers BV314/315 in DOAH Case Number

11 - 1681. Likewise , Petitioner CBS, as the applicant bears the

burden of proving, by a preponderance of the evidence that it

should be granted the permit for which it has applied in D OAH Case

N umber 11 - 1682.

56 . S ect ion 479.02(1) gives Respondent the authority to

administer and enforce the provisions of c hapter 479. An agency

is afforded wide discretion in the interpretation of the statute

which it administers. Republic Media v. Dep ' t of Transp. , 714 So.

2d 1203, 1205 (Fla. 5th DCA 1998); Atlantic Outdoor Advertising v.

Dep ' t of Transp. , 518 So. 2d 384, 386 (Fla. 1st DCA 1987), rev.

den ied , 525 So. 2d 876 (Fla. 1988); Natelson v. Dep ' t of Ins. , 454

So. 2d 31, 32 (Fla. 1st DCA 1984), pet. for rev. den ied , 461 So.

2d 115 (Fla. 1985).

Carter ' s Notice of Intent to Revoke Sign Permit for Violation

57 . T he Department ' s determination regarding the Notice of

In tent to Revoke Sign Permit for V iolation issued to Carter is

based on Florida Admi nistrative Code Rule 14 - 10.007(6)(b) , which

provides in pertinent part:

(6) A nonconforming sign may continue to exist

so long as it is not destroyed, abandoned, or

discontinued. " Destroyed, " " abandoned, " and

" discontinued " have the following meanings:

* * *

(b) A nonconforming sign is " abandoned " or

" discontinued " when a sign structure no longer

exists at the permitted location or the sign

owner fails to operate and maintain the sign

for a period of 12 months or longer. Signs

displaying bona fide public interest messages

are not " abandoned " or " discontinued " within

the meaning of this section. The following

conditions shall be considered failure to

operate and maintain the sign:

1. Signs displaying only an " available for

lease " or similar messag e,

2. Signs displaying advertising for a product

or service which is no longer available,

3. Signs which are blank or do not identify a

particular product, service, or facility.

58 . The definition of " sign structure " in s ection 4 79.01(24)

provides in pe rtinent part:

(24) " Sign structure " m eans all the

interrelated parts and material, such as

beams, poles, and stringers, which are

constructed for the purpose of supporting or

displaying a message or informative contents.

59 . The evidence in this case de monstrated that Carter

violated the nonconforming sign policy of the Department expressed

in the criteria set forth in the rule provisions quoted above.

The record evidence indisputably shows the Department issued

Carter tags BV314/315 for the permitted l ocation , 3825 Northwest

2nd Avenue , in Miami . T he evidence further demonstrates that on

December 2, 2008, Petitioner Carter voluntarily disassembled the

nonconforming Tabernacle Sign and moved all the beams, poles,

stringers, faces, and interrelated parts to Fort Myers for an

upgrade . On December 4, 2008, Carter re - erected the sign at the

new Carter site , thereby abandoning the 3825 NW 2 nd Avenue

location because the nonconforming sign " no longer exist s " at the

permitted location .

60 . The arguments asser ted by Carter in its Proposed

Reco mmended Order do not change Carter ' s abandoned status. Carter

contends that it did not abandon the Tabernacle Sign because the

Department failed to show Carter " intentional ly and voluntarily

relinquished further use of th e Tabernacle Sign . " This case is

distinguishable from Hobbs v . D ep ' t of Transp. , 831 So. 2 d 745 ,

(Fla. 5th DCA 2002) , in that Carter belatedly sought a permit for

a new location , after voluntarily removing the permitted

nonconforming sign from its origina l location, which is totally

unlike the owner in Hobbs , who immediately took action to obtain a

new permit for the sign, once he learned that the previous permit

had been canceled.

61 . Additionally, rule 14 - 10.007(6)(b) provides an objective

test for det ermining a party's intent , namely: (a) is the sign

structure still at the permitted location or (b) has the sign been

operated and maintained at the site in the prior 12 months? 5 / I f

the answer is no, as in this case, then the sign is abandoned and

disco ntinued.

6 2 . Carter ' s argument that it relocated the nonconforming

Tabernacle Sign is also rejected. Section 479 .15 (3) - (6) and rule

14 - 10.004(11) limit the circumstances under which relocation

applies in that a nonconforming sign can be relocated only if : (a)

it is made necessary by a public road works project ; (b) the sign

is moved within 100 feet of the original location ; and (c) the

party has the Department ' s approval. The credible evidence in

this matter shows that the new Carter site is more than 10 0 feet

away from the Tabernacle Sign site, Carter failed to get the

Department ' s permission to move, and the record is void of any

evidence that the Department acquired public land on which the

Tabernacle Sign was situated or any Department project existed

that impacted the property on which the sign was lawfully

situated . Further, Hodges testified at hearing that Carter knew

that it needed a permit before it could move the Tabernacle Sign.

Therefore, Carter did not relocate the Tabernacle Sign to a

confo rming location under the la w.

63 . The Department has met its burden and demonstrated that

Carter abandoned - not relocated - the sign as argued by Carter

because the Tabernacle Sign " no longer exist s " at the permitted

location due to Carter voluntarily removi ng it on December 2,

2008, in violation of rule 14 - 10.007(6)(b) . Therefore, Carter ' s

permit should be revoked under the Department ' s authority in

section 479.08.

CBS Notice of Denied Application

64 . The Department denied C BS ' application for a permit

pro viding the following grounds for the proposed action: " Sign

does not meet spacing requirements (1500 ' for Interstates, 1000 '

for FAP). In conflict with permitted sign(s), tag#(s): BV314/315.

Held by: Carter Pritchett. "

65 . The spacing requirement that th e Department claims CBS '

p roposed sign does not meet is section 479.07(9)(a)1. ' s mandate

that to be permitted, a sign must be no less than " one thousand

five hundred feet from any other permitted sign on the same side

of the highway, if on an interstate hi ghway. "

66 . Carter seeks to inject numerous other issues into this

proceeding concerning CBS ' application that the Department did not

allege in its No tice of Denied O utdoor Advertising Permit

Application. Even though Carter refers to itself as an interve no r

in its Proposed Recommended Order and contends it can advance

additional grounds for the denial of CBS ' s application based on

its intervenor status , Carter did not petition for leave to

intervene in this matter pursuant to rule 28 - 106.205 .

Accordingly , Carter is not an intervenor and the undersigned need

not consider any of Carter ' s contentions claimed under intervenor

status. Therefore, the undersigned declines to consider any

additional issues Carter raises as grounds for CBS ' s denial other

than the Department ' s sole noticed issue of spacing.

67 . Even if the undersigned considered Carter ' s lengthy

argument in its Proposed Recommended Order regarding the City of

Miami ' s completion and execution of local permission forms in

error and whether they are contrary to the City of Miami ' s policy ,

a ny issues related to the City of Miami are not before this

tribunal.

68 . Further, Carter ' s assertion of application priority is a

red herring. The bottom line is the Department processes sign

permit applications in the order of the date and time of receipt

of complete d appl ications pursuant to rule 14 - 10. 004(1)(c).

Therefore under any analysis, CBS submitted its outdoor

advertising permit application on October 1, 2009, and is first in

line before either of Carte rs ' 2009 application submissions.

6 9 . Petitioner CBS does not dispute that its proposed sign

is less than 1,500 feet from the nearest permitted sign on the

same side of the highway [I - 95]. Rather, CBS has taken the

position and met its burden to show tha t its application was

properly filed and administered by the Department.

70 . Since the undersigned has determined that the permit

issued for Carter sign bearing tag numbers BV314/315 should be

revoked based on abandonment , the Department has no grounds to

withhold the permit from CBS as the sole reason for application

denial ceases to exist. Accordingly , the CBS spacing conflict is

resolved and there is no further basis to deny CBS ' permit

applications.

RECOMMENDATION

Based on the foregoing Findings of Fa ct and Conclusions of

Law, it is

RECOMMENDED the Florida Department of Transportation enter a

final order upholding Carter ' s Notice of Intent to Revoke Sign

Permit for Violation and that the Department grant CBS ' permit

application s .

DONE AND ENTERED this 17th day of April , 20 12 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April , 2012 .

ENDNOTES

1 / Scott Carter Signs is a family business that builds, installs,

and disassemble s signs. The company has been in outdoor

advertising since at least 1956. Scott Carter has been in the

sign business since a child, grew up in the business, and

inherited the company from his father in 1977.

2 / Carter ' s Exhibit 8 0 .

3 / Carter's Exhibi t 45.

4 / Due to recent changes in the fee scale, t he Department would

have processed Carter's application if the only issue had been the

incorrect application fee . However, the Department could not

process the application without the information regardi ng

designation for future land use.

5 / Carter also fails to meet the criteria of section (b) . The

record shows that Carter neither operated nor maintained the site

from December 2, 2008, when Carter voluntarily removed the sign

and tags , until at least December 19, 2009, when Hodges placed the

tags on the Tabernacle church fence, which is over 12 months.

COPIES FURNISHED :

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Ta llahassee, Florida 32399 - 0450

Anath Prasad, Secretary

Department of Transportation

Haydon Burns Building,

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399 - 0450

Gerald B. Curington, General Counsel

Department of Transportation

Haydon Bur ns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

Carol Ann Licko , Esquire

Hogan Lovells US L LP

1111 Brickell Avenue, Suite 1900

Miami, Florida 33131

Thomas R. Bolf, Esquire

Greenspoon Marder, P.A.

15th Floor

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

N OTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.