13-000855 Carter Pritchett Advertising vs. Department Of Transportation Status: Closed Recommended Order on Thursday, May 1, 2014.

Summary: The Department properly denied Petitioner's applications for outdoor advertising sign permits because Petitioner failed to satisfy the requirements of the "Use Test."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARTER PRITCHETT ADVERTISING ,

INC.,

Petitioner ,

Case No. 13 - 0855

vs.

DEPARTMENT OF TRANSPORTATION ,

Respondent,

and

CBS OUTDOOR , INC.,

Intervenor .

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz for final hearing on February 5 through 7, 2014, in

Miami, Florida.

APPEARANCES

For Petitioner: Carol A. Licko, Esquire

Julie Nevins, Esquire

Hogan Lovells US, LLP

Suite 2700

600 Brickell Avenue

Miami, Florida 33131

For Respondent : Susan Schwartz, Esquire

Florida Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 045 0

For Intervenor: Glenn N. Smith, Esquire

Elizabeth S. Adler, Esquire

Greenspoon Marder , P.A.

Suite 700

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

STATEMENT OF THE ISSUE

Whether the State of Florida, Department of Transportation

( " Department " ) properly denied Carter Pritchett Adver tising ,

Inc.'s ( " Carter " ) applications for outdoor advertising sign

permits .

PRELIMINARY STATEMENT

On February 1, 2013, the Department issued Carter a Notice

of Denied Outdoor Advertising Permit Application , advising that

Carter ' s applications for do uble - faced outdoor advertising sign

permits were not approved because of the following reason:

Sign does not meet spacing requirements

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

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

CI138/139 .

Held by: CBS Outdoor, Inc .

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

On February 25, 2013, Carter timely filed a Request f or

Formal Administrative Hearing to challenge the Department ' s

denial of its applications. On March 13, 2013, the matter was

referred to the Division of Administr ative Hearings ( " DOAH " ) to

assign an Administrative Law Judge to conduct the final hearing. 1/

On April 22, 2013, CBS Outdoor, Inc. ( " CBS " ) filed a Notice

o f Appearance a s Party Respondent a s a Specifically - n amed Person,

a nd Alternative Petition t o Interv ene, w ith Full Party Status, i n

Alignment with the Florida Department of Transportation. On

April 25, 2013, Administrative Law Judge Jessica E. Varn entered

an Order g ranting CBS ' s p etition to i ntervene.

On May 6, 2013, the Department issued Carter an Ame nded

Notice of Denied Outdoor Advertising Permit Application in which

the Department cited two additional grounds for the denial of

Carter ' s applications. The reasons set forth in the Department ' s

a mended n otice are as follows:

Sign does not meet spacing requirements

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

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

CI138/139 .

Held by: CBS Outdoor, Inc .

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

Location is not permittable under land use

designations of site.

[ s. 479.111(2), FS]

Location does not qualify as unzoned

commercial/Industrial area.

[s. 479.01(26), FS]

On September 20, 2013, Carter filed an Amended Request f or

Formal Administrative Hearing o n Amended Notice of Denied Outdoor

Advertising Permit Application Num bers 58077 and 58078 , to

address the Department ' s additional grounds for denying its

applications .

This matter was initially set for final hearing on June 4

through 6, 2013, but was continued twice. On October 1, 2013,

the undersigned entered an Order granting the second request for

a continuance, and rescheduled the final hearing for February 5

through 7, 2014.

On January 17, 2014, CBS filed a Motion i n Limine and

Alternative Motion t o Continue Final Hearing, which w ere denied

by the unde rsigned in an Order issued on January 22, 2014. On

January 22, 2014, CBS filed a Motion t o Dismiss a nd Alternative

Motion f or Summary Final Order, to which Carter responded with a

memorandum in opposition filed on January 29, 2014. On

January 30, 2014, the undersigned entered an Order denying CBS ' s

motions.

On February 3, 2014, the parties filed their Joint

Pre - Hearing Stipulation, in which they stipulated to various

facts , issues of law , and the admissibility of certain exhibits .

On February 3, 2014, Carter filed a Motion i n Limine t o Exclude

Evidence Unrelated t o t he Three Reasons Cited b y t he Department

f or Denying t he Carter Applications , to which CBS responded with

a memorandum in opposition filed on February 4, 2014 . At the

commencement of the final hearing on February 5, 2014, the

undersigned ruled on Carter ' s motion, granting it in part, and

denying it in part.

The final hearing took place on February 5 through 7, 2014,

in Miami, Florida, as scheduled, with all parties present. At

hearing, Carter presented the testimony of Robert Jesse e ; Rex

Hodges, Sr.; Rex " Bo " Hodges, Jr.; Anthony Campan ile ; Joseph

Little; and Mac Barn e s. Carter ' s Exhibits 1 through 13, 13a, 17

through 22, 24, 26 through 31, 33, 46 , and 59 were received into

evi dence.

The Department presented the testimony of Mark Johnson and

K en neth Pye. The Department ' s Exhibits 2 through 6 were received

into evidence. CBS presented the testimony of Joseph Little and

Cary Winningham . CBS ' s Exhibits I6, I13, I14, I26, I28, I35,

I41, I49, I60, I87, I88, I96, I110, I114A, I114B, I143, I144 , and

I 146 were received into evidence. The parties ' Joint Exhibit 1

was also received into evidence.

The five - volume hearing Transcript was filed on March 12,

2014. At the conc lusion of the final hearing, the undersigned

granted the parties ' request that the deadline for filing

proposed recommended orders be extended to 30 days after the date

of filing of the Transcript.

On April 4, 2014, CBS filed an unopposed motion to extend

the parties ' deadline to file proposed recommended orders until

April 21, 2014. On April 7 , 2014, the undersigned granted CBS ' s

motion , extending the deadline for the parties to file proposed

recommended orders until April 21, 2014 . Carter and CBS timely

filed proposed recommended orders on April 21, 2014 . On

April 22, 2014, at 1:47 p.m., the Department filed a Motion t o

Accept Proposed Recommended Order as Timely, along with a

P roposed R ecommended O rder. On April 23, 2014 , the undersigned

issue d an Order granting the Department ' s motion. The parties '

proposed recommended orders were considered in the preparation of

this Recommended Order.

Based on the oral and documentary evidence presented at the

final hearing , the stipulation s of the parties, and on the entire

record of this proceeding, the following findings of fact are

made .

FINDING S OF FACT

The Parties

1. Carter and CBS are licensed to engage in the business of

outdoor advertising in the s tate of Florida.

2. The Department is the agency vested with the

responsibility to administer and enforce the provisions of

c hapter 479, Florida Statutes, including the approval and denial

of applications for permits for outdoor advertising signs that

are located withi n 660 feet or less of the nearest edge of the

right - of - way of any portion of the interstate and are visible

from the main - traveled way of such interstate .

The CBS Applications

3. On July 28, 2009, CBS submitted two applications to the

Depa rtment for outdoor advertising permits for a V - shaped sign at

1490 Northwest Third Avenue, Miami, Florida , adjacent to

Interstate 395 ( " I - 395 " ) . The CBS applications sought permitting

to I - 395.

4. At the time CBS submitted its applications to the

Department, the location of the proposed sign was within 660 feet

from the nearest edge of the right - of - way of the on - ramp

connecting I - 395 to Interstate 95 ( " I - 95 " ) , which is a controlled

area. Thus, CBS ' s proposed sign require d a permit issued by the

De partment.

5 . Outdoor a dvertising signs may be permitted only in

commercial - zoned or unzoned commercial or unzoned industrial

areas. A commercial zone is an area identified in both the local

government ' s Future Land Use Map ( " FLUM " ) and in local zoning

r egulations as allowing commercial or industrial uses.

6 . On August 13, 2009, the Department issued a Notice of

Denied Outdoor Advertising Applicatio n to CBS. The Department

stated the following reasons for denying CBS ' s applications :

Sign does not me et spacing requirements

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

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

BR203/BW544 .

Held by: CLEAR CHANNEL OTDR Î S FLORIDA DIV .

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

Location is not permittable under land use

designations of site.

[ s. 479.111(2), FS]

7 . CBS ' s applications were for a pilot program sign to be

permitted to I - 395 . P ursuant to section 470.07(9)(c), Florida

Statutes (2009) , p ilot program signs reduce the spacing

requirements for interstates from 1 , 500 feet t o 1 , 000 feet.

However, a t the time CBS submitted its applications, the City of

Miami had not yet adopted a resolution expressing its intent to

participate in a pilot program.

8 . At the time CBS submitted its applications, the parcel

on which the pro posed sign was to be located was zoned Parks and

Recreation. In addition, the parcel was designated Recreation on

the FLUM . The Department would not issue a permit for an outdoor

advertising sign located in a parcel zoned Parks and Recreation

and designa ted Recreation on the FLUM .

9 . On September 11, 2009, CBS filed a Petition for Formal

Proceedings, challenging the Department ' s denial of its

applications. The Department never transferred the CBS Petition

to DOAH prior to taking final action on the CB S applications.

10 . Pursuant to Resolution R 09 - 0451, enacted by the City

of Miami on September 24, 2009, the City of Miami resolved to

express its intent to participate in a pilot program allowing

1,000 foot spacing of outdoor advertising sings along e xpressways

in the City of Miami. Furthermore, the City of Miami resolved to

authorize placement of billboards in parks, including the

Overtown Plaza , where CBS proposed to locate its sign .

1 1 . After CBS submitted its applications, the City of Miami

enac ted a new zoning ordinance which is commonly referred to as

" Miami 21. " Miami 21 became effective on May 20, 2010.

1 2 . On May 20, 2010, the City of Miami informed the

Department that the City of Miami had accepted the location of

the proposed CBS sign i nto the City of Miami ' s pilot program,

thereby allowing 1000 foot spacing in the City of Miami

consistent with the pilot program auth orized by section

479.07(9)(c) , Florida Statutes.

1 3 . On May 21, 2010, CBS provided the Department with

information regard ing the updated zoning and FLUM designation(s)

of the proposed site based on the newly implemented Miami 21.

The new zoning of the proposed sign location was T6 - 8 O, which

allows for commercial, residential and other uses, and the new

FLUM designation was Restricted Commercial, which allows for

commercial and residential uses.

1 4 . The evaluation used to determine satisfaction of the

criteria outlined in sections 479.0 1(23) (2009) and 479.01(26)

(201 1), is commonly referred to as the "Use Test." The

Dep artment u tilizes the Use Test where a parcel of land is

designated by the FLUM of the comprehensive plan for multiple

uses that include commercial or industrial uses but are not

specifically designated for commercial or industrial uses under

the land devel opment regulations.

1 5 . Under the Use Test, a property that is zoned to allow

for commercial or industrial uses, in addition to other uses, is

examined to determine if surrounding commercial or industrial

uses exist near the property that are visible to the main -

traveled way of the roadway where the sign is to be permitted.

There must be three or more separate and distinct conforming

industrial or commercial activities, at least one of which is

located on the same side of the highway and within 800 fee t of

the sign location; the commercial or industrial activities must

be within 660 feet from the nearest edge of the right - of - way; and

the commercial or industrial activities must be within 1600 feet

of each other.

1 6 . Under the Use Test, certain activi ties are not

recognized as commercial activities, such as activities not

" visible " from the main - traveled way. Thus, to satisfy the Use

Test, the applicant must demonstrate that there are three

commercial or industrial activities within the required spaci ng

which are visible from the main - traveled way. To be visible, the

commercial or industrial activit ies must be capable of being seen

from the main - traveled way without visual aid by a person of

normal acuity and be generally recognizable as commercial or

industrial.

1 7 . Due to the land use designation and zoning of the

parcel on which the CBS sign was to be located, CBS submitted

information to the Department to demonstrate that it satisfied

the Use Test .

1 8 . In May 2012, the Department conducted a Use Test in

connection with the CBS applications by evaluating co mmercial

uses along I - 395. The Department determined that the CBS

applications satisfied the Use Test.

1 9 . On August 7, 2012, the Department entered into a

settlement agreement with CBS in which the Department agreed to

grant permits for CBS ' s pilot program sign to be located at 1490

Northwest Third Avenue , Miami, Florida, adjacent to I - 395. The

settlement agreement was incorporated into a Final Order dated

August 14, 2012, dismissing CB S ' s request for an administrative

hearing. On August 22, 2012, the Department issued CBS permits

with tag numbers CI 138/CI 139.

The Carter Applications

20 . O n October 15, 2010, Carter submitted two outdoor

advertising permit applications for a double - faced sign to be

located 535 feet west of Northwest Fourth Avenue in Miami,

Florida and to be pe rmitted to I - 95. The Carter applications

were assigned Department File Numbers 58077 and 58078. Carter ' s

applications were not submitted as pilot program sign s. They

were submitted for 1,500 foot spacing.

2 1 . The location of the proposed Carter sign is within a

condominium complex ( " Town Park Village Number 1 " ), specifically,

a parking lot adjacent to the same on - ramp connecting I - 395 and

I - 95 as the CBS app lications ( between Northwest Fifteenth Street

and Northwest Fourth Avenue ) .

22. The Carter applications, however, sought permitting to

I - 95. Carter ' s proposed sign is 660 feet from the nearest edge

of the right - of - way of the east side of I - 95, which is a

controlled area. Thus, Carter ' s proposed sign requires a permit

issued by the Department.

2 3 . The location of the proposed Carter sign is designated

as Restricted Commercial on the FLUM for the City of Miami, which

designation allows for commercial and residential uses. The

zoning of the parcel is T5 - O, which allows for commercial,

residential, and other uses.

2 4 . By letter dated November 1 5 , 2010, the Department

notified Carter that i t s applications would be held by the

Department without action until a prior hearing request was

resolved. The letter did not identify who filed the referenced

prior hearing request. The prior hearing request concerned the

CBS applications.

2 5 . Due to the land use designation and zoning of the

parcel for the C arter proposed sign, the Department determined

that Carter must satisfy the Use Test set forth in section

479.01(26), Florida Statutes (2012) . Carter acknowledges that i t

must satisfy the Use Test in order to obtain the permits.

26. Whether Carter has satisfied the requirements of the

Use Test by establishing that there are three commercial or

industrial activities visible from the main - traveled way of I - 95

is a dispositive factual issue to be determined by the

undersigned.

2 7 . Carter identifi ed for the Department three commercial

activities near the proposed Carter sign , and within the required

spacing, that Carter contends are visible from the main - traveled

way of I - 95 , and thus, satisfy the Use Test . These are the

Overtown Shopping Plaza, T wo Guys Restaurant, and Black Kutz

Barbershop.

2 8 . The location of the proposed Carter sign is within 800

feet for the southwestern corner of Overtown Plaza. The

Department does not contest these measurements, or that Overtown

Plaza is within 660 f eet from the nearest edge of the right - of -

way.

2 9 . Two Guys Restaurant is located on Northwest Third

Avenue , and is 1,170 feet from the southwest corner of Overtown

Plaza . Two Guys Restaurant is 580 feet west of the northbound

I - 95 right - of - way line. The Department does not contest these

measurements.

30 . B lack Kutz Barbershop is located on Northwest Third

Avenue , and is 1,465 feet from the southwest corner of Overtown

Plaza. Black Kutz Barbershop is 496 feet west of the northbound

I - 95 right - of - wa y line. The Department does not contest these

measurements.

31 . Overtown Plaza , Two Guys Restaurant, and Black Kutz

Barbershop are within 1,600 feet of each other. The Department

does not contest these measurements.

32 . The Department conducted a Use Test in connection with

the Carter applications by evaluating the visibility of the three

purported commercial uses along I - 95 proposed by Carter ( Overtown

Plaza, Two Guys Restaurant, and Black Kutz Barbersh o p) .

33. The Department determined that the C arter applications

did not satisfy the Use Test because Overtown Plaza, Two Guys

Restaurant, and Black Kutz Barbershop, are not visible fr om the

main - traveled way of I - 95 , as req uired by section

479.01(26)(b)4 . , Florida Statutes (2012) .

3 4 . If any of the se purported three businesses (Overtown

Plaza, Two Guys Restaurant, and Black Kutz Barbershop) are not

visible from the main - traveled way of I - 95, then Carter has not

satisfied the requirements of the Use Test.

35. The photographs relied on by Carter and the persuasive

evidence presented at hearing establish that Black Kutz

Barbershop and Two Guys Restaurant are not visible from the main -

traveled way of I - 95 .

36. A t hearing and in its P roposed R ecommended O rder ,

Carter relies on t wo photographs taken by Mr. " Bo " Hodges from

the main - traveled way of I - 95 ( Carter ' s Exhibits 17 and 18) , to

demonstrate that Black Kutz Barbershop and Two Guys Restaurant

ar e , in fact, visible fr om the main - traveled way of I - 95 .

3 7 . Exhibits 17 and 18 and the persuasive evid ence

presented at hearing fail to establish that Black Kutz Barbershop

and Two Guys Restaurant are, in fact, visible from the main -

traveled way of I - 95 . T wo Guys Restaurant and Black Kutz

Barbersh o p are obstructed from view by trees and other

structures. At best, only portions of the buildings that house

the two businesses can be glimpsed from the main - traveled way of

I - 95 .

3 8 . Neither the photographs (Exhibits 17 and 18) , nor the

persuasive evidence presented at hearing, demonstrate that the

buildings contain commercial activity. C atching a glimpse of a

portion of the building s does not mean that the building s cont ain

commercial activity.

39 . A glimpse of a building does not establish that a

commercial activity is visible from the main - traveled way . In

sum, the p hotographs relied on by Carter , and the persuasive

evidence presented at hearing, fail to establish that Two Guys

Restaurant and Black Kutz Barbershop are visible from the main -

traveled way of I - 95 . 2/

4 0 . Notably , the Department presente d photographic and

video evidence of its recent Use Test with respect to Carter ' s

applications (Department ' s Exhibit s 5 and 6). The photographic

and video inspection was conducted by Mr. Mark Johnson, a

Department Outdoor Advertising Inspector, during his inspection

on January 4, 2014.

4 1 . Mr. Johnson testified that neither Black Kutz

Barbershop nor Two Guys Restaurant are visible from the main -

traveled way of I - 95. The undersigned ' s review of the video and

photographs relied on by Mr. Johnson do not s how otherwise. 3/

4 2 . Mr. Pye , the Department ' s Supervisor of Field

Operations, test ified that he drove along the main - traveled way

of I - 95 just before the f inal h earing. He was able to merely

catch a glimpse of a corner of the building in which Two Guys

Restaurant is located, and the top portion of the corner of a

building in which B lack Kutz Barbershop is located. However, he

was unable to determine that there was commercial activity.

4 3 . A fter a careful consideration of the evidence presented

at hear ing, the undersigned finds , as ultimate fact s , that T wo

Guys Restaurant and Black Kutz Barbershop are not visible from

the main - traveled way of I - 95. Two Guys Restaurant and Black

Kutz Barbershop are not capable of being seen from the main -

traveled way of I - 95 without visual aid by a person of normal

visual acuity, and they are not generally recognizable from the

main - trav e led way of I - 95 as commercial.

4 4 . Accordingly, Carter failed to satisfy the Use Test, and

the Department properly denied Carter ' s a pplications.

4 5 . Based on the undersigned ' s finding that Two Guys

Resta urant and Black Kutz Barbershop are not capable of being

seen from the main - traveled way of I - 95 without visual aid by a

person of normal visual acuity, and they are not generally

r ecognizable from the main - traveled way of I - 95 as commercial,

t here is no need to address any of the other factual contentions

of the parties.

CONCLUSIONS OF LAW

4 6 . DOAH has jurisdiction over the subject matter and the

parties pursuant to sections 120.5 69 and 120.57(1), Florida

Statutes.

4 7 . As the applicant for the permits, Carter bears the

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

should be granted the permits. F la. Dep ' t of Trans p . v . J.W.C.

Co., In c . , 369 So. 2d 778, 788 (Fl a. 1st DCA 1981).

4 8 . The Department ' s denial of Carter ' s applications was

based, in part, on sec tions 479.111(2) and 479.01(26) , Florida

Statutes (2012) . Section 479.111(2) provides that outdoor

advertising signs may be permitted only in commercial - zo ned and

industrial - zoned areas or commercial - unzoned and industrial -

unzoned areas.

49 . Section 479.01(4) , Florida Statutes (2012) , provides in

pertinent part :

" Commercial or industrial zone " means a

parcel of land designated for commercial or

industria l use under both the future land use

map of the comprehensive plan and the land

use development regulations adopted pursuant

to chapter 163.

5 0 . Section 479.01(5) , Florida Statutes (2012) , further

provides:

" Commercial use " means act ivities associ ated

with the sale, rental, or distribution of

products or the performance of services. The

term includes, without limitation, such uses

or activities as retail sales; wholesale

sales; rentals of equipment, goods, or

products; offices; restaurants; food s ervice

vendors; sports arenas; theaters; and tourist

attractions.

5 1 . The Carter proposed sign location is designated

Restricted Commercial under the FLUM and T5 - O under Miami 21

zoning. T5 - O is an Urban Core zoning designation allowing for

reside ntial uses and restricted commercial uses. T5 - O is not

specifically designated for commercial or industrial uses and is

therefore not considered a commercial or industrial zone for

outdoor advertising purposes.

5 2 . The Use Test contains both a distance and visibility

requirement. Section 479.01(26) , Florida Statutes (2012) ,

contains the criteria for the Use Test, and provides:

" Unzoned commercial or industrial area " means

a parcel of land designated by the future

land use map of the comprehensive plan for

multiple uses that i nclude commercial or

industrial uses, but which are not

specifically designated for commercial uses

under the land development regulations, in

which three or more separate and distinct

conforming industrial or commercial

activities are located.

(a) These activities must satisfy the

following criteria:

1. At least one of the commercial or

industrial activities must be located on the

same side of the highway and within 800 feet

of the sign location;

2. The commercial or ind ustrial activities

must be within 660 feet from the nearest edge

of the right - of - way; and

3. The commercial industr ial activities must

be within 1,600 feet of each other.

Distances specified in this p aragraph must be

measured from the nearest outer ed ge of the

primary building or primary building complex

when the individual units of the complex are

connected by covered walkways.

(b) Certain activities, including, but not

limited to, the following, may not be so

recognized as commercial or industrial

activities :

1. Signs.

2. Agricultural, forestry, ranching,

grazing, farming, and related activities,

including, but not limited to, wayside fresh

produce stands.

ansient or temporary activities.

4. Activities not visible from the main -

trav eled way .

5. Activities conducted more than 660 feet

from the nearest edge of the right - of - way.

6. Activities conducted in a building

principally used as a residence.

7. Railroad tracks and minor sidings.

8. Communication towers.

5 3 . S ection 479.01(28) , Florida Statutes (2012) , further

provides:

" Visible commercial or industrial activity "

means a commercial or industrial activity

that is capable of being seen without visual

aid by a person of normal visual acuity from

the main - traveled way and that is generally

recognizable as commercial or industrial.

5 4 . Section 479.01(13) , Florida Statutes (2012) , further

provides:

" Main - traveled way " means the traveled way of

a highway on which through traffic is

carried. In the case of a divi ded highway,

the traveled way of each of the separate

roadways for traffic in opposite directions

is a main - traveled way. It does not include

such facilities as frontage roads, turning

roadways which specifically include on - ramps

or off - ramps to the inter state highway

system, or parking areas.

5 5 . The evidence presented at hearing fails to demonstrate

that Carter ' s applications satisfy the Use Test from the main -

traveled way of I - 95.

5 6 . Carter's reliance on Two Guys Restaurant and Black Kutz

Barber shop is misplaced. At best, only a glimpse of part of the

build ings in which Two Guys Restaurant and Black Kutz Barbershop

are located can be observed from the main - traveled way of I - 95.

Observing a glimpse of part of the buildings in which Two Guys

Rest aurant and Black Kutz Barbershop are located from the main -

traveled way of I - 95 is insufficient to establish that they are

visible as commercial activities . See Lamar Outdoor Adver., Inc.

v. Ark. State Highway & Transp. Dep ' t . , 2004 Ark. App. LEXIS 344

(A rk. Ct. App. 2004)( affirming denial of outdoor advertising

permit to erect a billboard and concluding that business was not

visible to the main - traveled way where only a " slight glimpse " of

structures could be seen from the main - traveled way) .

57. The Department properly determined that Carter failed

to satisfy the Use Test, and the Department properly denied

Carter ' s applications for not satisfying the r equirements of

sections 479.111 (2) and 479.01(26), Florida Statutes (2012) . 4/

5 8 . Based on the undersigned ' s ruling on this dispositive

issue, it is unnecessary to consider the parties ' other legal

arguments .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department e nter a final order

denying Ca r ter ' s applications for outdoor advertising sign

permits (Department File Numbers 58077 and 58078) .

DONE AND ENTERED this 1st day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

DARREN A. SCHWARTZ

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 Admi nistrative Hearings

this 1st day of May , 2014 .

ENDNOTE S

1/ This case was initially assigned to Administrative Law Judge

T.P. Crapps. On March 22, 2013, this matter was transferred to

Administrative Law Judge Jessica E. Varn for all further

proceedings . On September 3, 2013, this matter was transferred

to the undersigned for all further proceedings.

2/ Notably, on page 16 of its Proposed Recommended Order, Carter

points to Exhibit 12 as evidence of photographs taken by Mr. Bo

Hodges " from I - 95, " whi ch purportedly demonstrate that Two Guys

Restaurant and Black Kutz Barbershop " are visible from the main

traveled way of I - 95. " I t is apparent to the undersigned that

Carter does not mean to suggest that these photographs were taken

from the " main - travele d way " of I - 95. A review of Mr. Bo Hodges '

testimony and the photographs within Exhibit 12 reflect that none

of the pictures of Two Guys Restaurant or Black Kutz Barbershop

were taken from the " main - traveled way. " Of course, any reliance

by Carter on pho tographs taken anywhere other than from the main -

traveled way of I - 95 are misplaced. Moreover, on page 17 of its

Proposed Recommended Order, Carter refers specifically to

documents labeled CAR - 000321 - 323 within Exhibit 12, none of which

are photographs of Two Guys Restaurant or Black Kutz Barbershop.

3 / Mr. Johnson attempted to perform a prior Use Test of Carter ' s

applications through a visual inspection on May 13, 2013.

However, Mr. Johnson ' s evaluation focused on I - 395, although his

report does men tion I - 95. Mr. Johnson did not find any

commercial activities visible from I - 95. Mac Barnes is an

employee of Cardno, which contracts with the Department to

perform Use Tests . Prior to Mr. Johnson ' s May 13, 2013,

inspection, Mr. Barnes also performed a Use Test evaluation with

respect to the Carter applications. However, Mr. Barnes

performed his inspection from I - 395, not I - 95. The parties agree

t hat the main - trave led way of I - 95 is the proper location to

conduct a Use Test evaluation of the Carter app lications, not I -

395.

4/ Carter incorrectly contends that it is contrary to the

evidence for the Department to have reached the conclusion that

CBS satisfied the visibility requirement of the Use Test while

Carter did not. The parties recognize that t he main - traveled way

of I - 395 is the relevant viewpoint for determining whether CBS

satisfied the Use Test, and that the main - traveled way of

I - 95 is the relevant viewpoint for determining whether Carter

satisfied the Use Test. I - 95 runs north and south and I - 395 runs

east and west. Because there are different viewpoints

(interstate highways) which govern the Department ' s application

of the Use Test, the views from th ose interstate highways vary.

What is visible along the main - traveled way of I - 395 is d ifferent

from what is visible from the main - traveled way of

I - 95.

COPIES FURNISHED:

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Glenn N. Smith, Esqu ire

Elizabeth Somerstein Adler, Esquire

Greenspoon Marder , P . A .

Suite 700

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

C arol A. Licko , Esquire

Julie Nevins, Esquire

Hogan Lovells US, LLP

Suite 2700

600 Brickell Avenue

Miami, Florida 33131

Gerald B. Curington, General Counsel

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Ananth Prasad, Secretary

Department of Transportation

Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0 450

Trish Parsons, Agency Clerk

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.