13-001623RX Carter Sign Rentals, Inc. vs. Department Of Transportation
 Status: Closed
Recommended Order on Friday, January 10, 2014.


View Dockets  
Summary: Petitioner failed to prove that F.A.C.R. 14-10.007(6)(b) is an invalid exercise of delegated legislative authority.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CARTER SIGN RENTALS, INC. ,

12Petitioner ,

13vs. Case No. 13 - 1623RX

19DEPARTMENT OF TRANSPORTATION ,

22Respondent .

24_______________________________/

25NISSI, INC.,

27Petitioner,

28vs. Case No. 13 - 3518RX

34DEPARTMENT OF TRANSPORTATION,

37Respondent.

38/

39SUMMARY FINAL ORDER

42Pursuant to notice, a final hearing in this cause was held

53in Tallahassee, Florida, on December 1 1 , 2013 , before the

63Division of Administrative He arings by its designated

71Administrative Law Judge Linzie F. Bogan.

77APPEARANCES

78For Petitioner in Case No. 13 - 1623RX :

87Julie E. Nevins, Esquire

91Hogan Lovells US, LLP

95Suite 2700

97600 B rickell Avenue

101Miami, Florida 33131

104For Petitioner in Case No. 13 - 3518 RX :

114Jacob D. Varn, Esquire

118Fowler, White, Boggs, P.A.

122101 North Monroe Street, Suite 1090

128Post Office Box 11240

132Tallahassee, Florida 32302 - 3240

137For Respondent :

140Susan Schwartz, Esquire

143Kimberly Clark Menchion, Esquire

147Department of Transportation

150Mail Station 58

153605 Suwannee Street

156Tallahassee, Florida 32399

159STATEMENT OF THE ISSUE

163Whether Florida Administrative Code Rule 14 - 10.007(6)(b),

171which provides for revocation of outdoor advertising permits for

180n onconforming signs that are abandoned or discontinued, is an

" 190invalid exercise of delegated legislative authority " as alleged

198by Petitioners.

200PRELIMINARY STATEMENT

202On May 1, 2013, Carter Sign Rentals, Inc. (Carter) filed a

213Petition to Challenge the Validi ty of an Existing Rule, asserting

224that r ule 14 - 10.007(6)(b) exceeds the Department of

234Transportation ' s (Department) statutory authority. 1/ Carter ' s

244rule challenge petition has been assigned Division of

252Administrative Hearings (DOAH) Case No. 13 - 1623RX. A hearing was

263initially scheduled for June 20 and 21, 2013, but was

273rescheduled , upon Carter ' s unopposed motion , to August 27 - 29,

2852013, and rescheduled again to December 10 through 12, 2013, upon

296Carter ' s unopposed motion.

301On September 16, 2013, Nissi, Inc . (Nissi) filed a Petition

312to Challenge the Validity of an Existing Rule, which also

322challeng es r ule 14 - 10.007(6)(b). The Nissi rule challenge has

334been assigned DOAH Case No. 13 - 3518RX. Upon Nissi ' s unopposed

347motion, the Carter and Nissi challenges were consolidated .

356On December 3, 2013, upon Carter ' s Motion to Shorten the

368Final Hearing, an Amended Notice of Hearing setting the hearing

378for December 11 and 12, 2013, was entered. On December 6, 2013,

390the parties filed a Joint Prehearing Stipulation settin g forth

400agreed - upon facts, agreed upon conclusions of law, and issues of

412law that remain to be litigated. The parties agree that there

423are no disputes of material fact related to this proceeding.

433On December 9, 2013, Carter filed a Motion for Summary F inal

445Order and Memorandum of Law. On December 10, 2013, Nissi filed a

457Notice of Joinder in and Adoption of Motion for Summary Final

468Order. On December 18, 2013, the Department filed a Response to

479Petitioners ' Motion for Summary Final Order and Cross - Moti on for

492Summary Final Order.

495At the formal hearing on December 11, 2013, J oint Exhibits 1

507through 10 were received into evidence. No witnesses were

516called. The parties each filed a Proposed Final Order and the

527same have been considered in preparing this Final Order.

536FINDING S OF FACT

5401. The Department of Transportation is the state agency

549responsible for administering and enforcing the outdoor

556advertising program in accordance with c hapter 479, Florida

565Statutes.

5662. The Department adopted Florida Admi nistrative Code

574Chapter 14 - 10, which provides for the permitting and control of

586outdoor advertising signs visible to and within controlled areas

595of interstates and federal - aid highways. Rule 14 - 10.007 provides

607regulations for nonconforming signs. Section 479.01(17), Florida

614Statutes, defines nonconforming signs as signs that were lawfully

623erected but which do not comply with later enacted laws,

633regulations, or ordinances on the land use, setback, size,

642spacing and lighting provisions of state or local law , or fail to

654comply with current regulations due to changed conditions.

6623. Rule 14 - 10.007 provides in part that:

671(6) A nonconforming sign may continue to

678exist so long as it is not destroyed,

686abandoned, or discontinued. " Destroyed, "

" 690abandoned, " and " d iscontinued " have the

696following meanings:

698* * *

701(b) A nonconforming sign is " abandoned " or

" 708discontinued " when a sign structure no

714longer exists at the permitted location or

721the sign owner fails to operate and maintain

729the sign, for a period of 12 m onths or

739longer. Signs displaying bona fide public

745interest messages are not " abandoned " or

" 751discontinued " within the meaning of this

757section. The following conditions shall be

763considered failure to operate and maintain

769the sign:

7711. Signs displaying on ly an " available for

779lease " or similar message,

7832. Signs displaying advertising for a

789product or service which is no longer

796available,

7973. Signs which are blank or do not identify

806a particular product, service, or facility.

8124. Carter is licensed to e ngage in the business of outdoor

824advertising in Florida and holds an outdoor advertising permit

833for a nonconforming outdoor advertising sign bearing Tag

841No. AS 228. The outdoor advertising sign for the referenced tag

852number is located in Lee County, Flor ida ( " Carter Sign " ). On

865February 22, 2010, the Department issued a Notice of Intent to

876Revoke Sign Permit to Carter for sign bearing Tag No. AS 228 .

889The n otice advises that " this nonconforming sign has not

899displayed advertising copy for 12 months or more , and is deemed

910abandoned, pursuant to s. 14 - 10.007(6)(b), Florida Administrative

919Code. "

9205. Petitioner Nissi is licensed to engage in the business

930of outdoor advertising in Florida and holds outdoor advertising

939signs bearing Tag Nos. BK 731 and BK 732, w hich signs are located

953in Pasco County, and BN 604, BN 605, AR 261, AR 262, AT 485 and

968AT 486, which signs are located in Hernando County ( " Nissi

979Signs " ). In June and July 2013, the Department issued n otices of

992i ntent to r evoke s ign p ermits , pursuant to r ule 14 - 10.007(6)(b) ,

1008based on the signs not displaying advertising for 12 months or

1019longer. The notice issued to Nissi advised that the Department

1029deemed the signs as having been abandoned.

10366. Carter and Nissi, as owners of nonconforming signs

1045receiving violations under r ule 14 - 10.007(6)(b) , have standing

1055and timely challenged the rule in dispute herein.

1063CONCLUSIONS OF LAW

10667. DOAH has jurisdiction over the parties and subject

1075matter of this proceeding. § 120.56, Fla. Stat. (2012). 2/

10858. Petitioners c hallenge r ule 14 - 10.007(6)(b) pursuant to

1096section 120.56, which allows substantially affected persons to

1104challenge a rule ' s facial validity, without consideration of a

1115specific factual scenario. See Fairfield Communities v. Fla.

1123Land and Water Adjudicator y Comm ' n , 522 So. 2d 1012 (Fla. 1st DCA

11381988).

11399. Petitioners contend that r ule 14 - 10.007(6)(b) is an

1150invalid exercise of delegated legislative authority under section

1158120.52(8) because: (a) the Department exceeded the grant of

1167rulemaking authority dele gated by the Florida Legislature;

1175(b) the r ule enlarges, modifies, and contravenes the specific

1185authority cited in the statutes to be implemented; (c) the r ule

1197is vague, fails to establish adequate standards for agency

1206decisions, and vest s unbridled discre tion in the Department; and

1217(d) the r ule is arbitrary and capricious.

122510. The last paragraph of section 120.52(8), also known as

1235the flush left provision, includes general standards for

1243challenging a rule and provides, in part, as follows:

1252A grant of rul emaking authority is necessary

1260but not sufficient to allow an agency to

1268adopt a rule; a specific law to be

1276implemented is also required. An agency may

1283adopt only rules that implement or interpret

1290the specific powers and duties granted by the

1298enabling stat ute. No agency shall have

1305authority to adopt a rule only because it is

1314reasonably related to the purpose of the

1321enabling legislation and is not arbitrary and

1328capricious or is within the agency ' s class of

1338powers and duties, nor shall an agency have

1346the aut hority to implement statutory

1352provisions setting forth general legislative

1357intent or policy. Statutory language

1362granting rulemaking authority or generally

1367describing the powers and functions of an

1374agency shall be construed to extend no

1381further than implem enting or interpreting the

1388specific powers and duties conferred by the

1395enabling statute.

1397This " set of general standards [is] to be used in determining the

1409validity of a rule in all cases. " Sw. Fla. Water Mgmt. Dist. v.

1422Save the Manatee Club, Inc. , 773 So . 2d 594, 597 - 98 (Fla. 1st DCA

14382000).

143911. This standard has been held to mean that:

1448Agencies have rulemaking authority only where

1454the Legislature has enacted a specific

1460statute, and authorized the agency to

1466implement it, and then only if the (proposed)

1474r ule implements or interprets specific powers

1481or duties, as opposed to improvising in an

1489area that can be said to fall only generally

1498within some class of powers or duties the

1506Legislature has conferred on the agency.

1512Bd. of Trustees of Internal Improvement Trust Fund v. Day Cruise

1523Ass ' n, Inc. , 794 So. 2d 696 (Fla. 1st DCA 2001).

153512. Pursuant to section 120.56(3), Petitioners have the

1543burden of proving by a preponderance of the evidence that the

1554existing rule is an invalid exercise of delegated legislativ e

1564authority as to the objections raised.

1570I. Rulemaking Authority

157313. Section 334.044(1), Florida Statutes, provides that the

1581Department is authorized " [t]o adopt rules pursuant to ss.

1590120.536(1) and 120.54 to implement the provisions of law

1599conferring duties upon it. "

160314. Section 479.02(1), Florida Statutes, imposes a duty on

1612the Department to:

" 1615[a]dminister and enforce . . . the agreement

1623between the state and the United States

1630Department of Transportation relating to the

1636size, lighting, and spacing of signs in

1643accordance with Title I of the Highway

1650Beautification Act of 1965 and Title 23,

1657United States Code, and federal regulations

1663in effect as of the effective date of this

1672act.

167315. The " agreement " (Agreement) referenced in section

1680479.02(1), is the Agreement of January 27, 1972, between the

1690State of Florida and United States Department of Transportation

1699pertaining to " carrying out national policy relative to control

1708of outdoor advertising in areas adjacent to the National System

1718of Interstate and Defense Highways and the Federal - aid Primary

1729System, as authorized by Chapter 479, Florida Statutes, and Title

173923, section 131, United States Code. "

174516. Section 479.02(7) authorizes the Department to " [a]dopt

1753such rules as it deems necessary or proper f or the administration

1765of this chapter, including rules which identify activities that

1774may not be recognized as industrial or commercial activities for

1784purposes of determination of an area as an unzoned commercial or

1795industrial area. "

179717. The Department ' s rule is clearly within its grant of

1809rulemaking authority delegated by the Florida Legislature in that

1818section 479.02 provides the Department authority to administer

1826and enforce Title I of the Highway Beautification Act of 1965,

1837Title 23, United States Cod e, and related federal regulations.

1847The federal regulations give the Department the authority to

1856define abandonment and discontinuance within the criterion

1863established by the Federal regulations. The Department ' s rule

1873does not enlarge, modify, or contrav ene the federal criterion.

1883The rule reflects the federal regulation ' s criterion.

189218. Petitioners assert that the Department ' s rulemaking

1901authority is insufficient for the adoption of a rule related to

1912the content of outdoor advertising signs. Contrary to

1920Petitioners ' assertion, the rule, as applied in the instant

1930proceeding, is not regulating the " content of outdoor advertising

1939signs " but is instead regulating the absence of content for an

1950outdoor advertising sign. Regardless, Petitioner s ha ve not

1959esta blished that the rule exceeds the Department ' s grant of

1971rulemaking authority.

197319. As explained in Board of Trustees of Internal

1982Improvement Trust Fund v. Day Cruise Association, Inc. ,

1990794 So. 2d 696 (Fla. lst DCA 2001), a grant of rulemaking

2002authority i s normally of little interest, as almost all agencies

2013have a general grant of rulemaking authority. The test, as

2023expressed in Day Cruise , more often centers on whether the grant

2034of rulemaking authority can be used in conjunction with a

2044specific provision of law to be implemented.

205120. Petitioners argue that the present case is similar to

2061State Department of Financial Services v. Peter R. Brown

2070Construction, Inc. , 108 So. 3d 723 (Fla. 1st DCA 2013), wherein

2081the Court found a statute authorizing rules on th e processing of

2093payments did not provide authority for a rule prohibiting certain

2103expenditures. The statute referenced in Brown Construction was

2111narrowly tailored to a specific subject - the processing of

2121invoices. Conversely, the rulemaking authority in t he present

2130case broadly allows the Department to " [a]dopt rules as it deems

2141necessary or proper for the administration of [Chapter 479]. "

215021. A broad grant of rulemaking authority allows state

2159agencies to create rules needed to effectively administer the ir

2169program areas. In Frandsden v. Department of Environmental

2177Protection , 829 So. 2d 267 (Fla. 1 s t DCA 2002), a rule limiting

2191expressions of free speech to non - commercial activities approved

2201by the park manager was found to be within the ambit of the

2214auth ority of the Department of Environmental Protection, Division

2223of Recreation and Parks under the statute to: a) make rules to

2235carry out its specific duties; b) supervise, administer, and

2244control the operation of all public parks; and c) preserve,

2254manage, r egulate, and protect all parks and recreational areas

2264held by the state. As established in Frandsen , a grant of

2275rulemaking authority does not need to be so specific as to write

2287the rule.

228922. The Department, by adopting a rule on the abandonment

2299and disc ontinuance of nonconforming signs, has not exceeded its

2309grant of rulemaking authority to adopt rules as it deems

2319necessary or proper for the administration of the outdoor

2328advertising program.

2330II. Specific Statutory Authority

233423. Petitioners further a rgue that r ule 14 - 10.007(6)(b)

2345enlarges, modifies, and contravenes the specific provision of the

2354law implemented. Petitioners argue that sections 339.05, 479.02

2362and 479.07(9), cited as authority for the rule, do not confer

2373authority for the Department to adopt a rule regulating the

2383content of outdoor advertising signs.

238824. The rule, however, does not regulate the content of

2398outdoor advertising signs. The rule provides that nonconforming

2406outdoor advertising signs that do not display outdoor advertising

2415o r other messages for a period in excess of 12 months will be

2429deemed abandoned and will lose the permits issued under c hapter

2440479. Nonconforming signs that are " available for lease " for over

2450a year are likewise considered abandoned.

245625. In the context of the Department ' s program governing

2467the maintenance of nonconforming signs, a sign that, for a period

2478of 12 months or longer, displays only an " available for lease " or

2490similar message, displays advertising for a product or service

2499which is no longer availa ble, or which is blank or does not

2512identify a particular product, service, or facility, has not been

2522properly " maintained " within the meaning of the Agreement and is

2532therefore considered abandoned or discontinued. The Agreement,

2539which is incorporated into section 479.02 by express reference,

2548expressly authorizes the Department to adopt standards related to

2557the maintenance of signs, such as those in the instant case, that

2569are within the scope of the agreement.

257626. The phasing out of nonconforming signs th at have been

2587unused for over a year is consistent with federal law, as

2598expressed in 23 C . F . R . § 750.707(d)(6), which provides:

2611The sign may continue as long as it is not

2621destroyed, abandoned, or discontinued. If

2626permitted by State law and reerected in kin d,

2635exception may be made for signs destroyed due

2643to vandalism and other criminal or tortious

2650acts.

2651(i) Each state shall develop criteria to

2658define destruction, abandonment and

2662discontinuance. These criteria may provide

2667that a sign which for a designated period of

2676time has obsolete advertising matter or is

2683without advertising matter or is in need of

2691substantial repair may constitute abandonment

2696or discontinuance. Similarly, a sign damaged

2702in excess of a certain percentage of its

2710replacement cost may be c onsidered destroyed.

2717(ii) Where an existing nonconforming sign

2723ceases to display advertising matter, a

2729reasonable period of time to replace

2735advertising content must be established by

2741each State. Where new content is not put on

2750a structure within the est ablished period,

2757the use of the structure as a nonconforming

2765outdoor advertising sign is terminated and

2771shall constitute an abandonment or

2776discontinuance. Where a State establishes a

2782period of more than one (1) year as a

2791reasonable period for change of me ssage, it

2799shall justify that period as a customary

2806enforcement practice within the State. This

2812established period may be waived for an

2819involuntary discontinuance such as the

2824closing of a highway for repair in front of

2833the sign.

283527. As previously noted, the Agreement between the State of

2845Florida and the Unite d States Department of Transportation

2854requires the State of Florida to administer and enforce federal

2864regulations on outdoor advertising. Included within the

2871applicable federal regulation s are the p rovisions of 23 C . F . R .

2887§ 750.707(d)(6) , which relate to the discontinuance of

2895nonconforming signs under the Highway Beautification Act of 1965.

290428. Section 479.07(9), which is also cited as authority for

2914r ule 14 - 10.007, prohibits the permitting of signs that do not

2927meet size and spacing requirements. Signs that were lawfully

2936erected, but do not meet the current requirements, are considered

2946nonconforming signs as defined by section 479.01(17).

295329. Rule 14 - 10.007(6)(b) is clearly within the grant of

2964rul emaking authority delegated by the Florida Legislature in that

2974the authorizing statutes provide the Department authority to

2982administer and enforce federal regulations. See Brazil v. Div . of

2993Admin., State Dep ' t of Transp. , 347 So. 2d 755 (Fla. 1st DCA

30071977) , disapproved on other grounds by LaPointe Outdoor Adver . v.

3018Florida Dep ' t of Transp. , 398 So. 2d 1370 (Fla. 1981) (section

3031479.02 provides sufficient authority for rules based on federal

3040regulations because it is " obvious the legislature may adopt

3049provisi ons of federal statutes and administrative rules made by a

3060federal administrative

3062body . . . " ) .

306830. The Department ' s obligation to administer and enforce

3078federal regulations was addressed in Chancellor Media Whiteco

3086Outdoor Corporation v. State of Flori d a , Department of

3096Transportation , 796 So. 2d 547 (Fla. 1 s t DCA 2001), rev . denied ,

3110821 So. 2d 293 (Fla. 2002), wherein the Court affirmed an order

3122directing the removal of nonconforming signs reconstructed after

3130being destroyed by wildfire, stating:

3135Florid a has exerted considerable effort over

3142the last 30 years in complying with the

3150Highway Beautification Act in order to

3156protect its full share of federal highway

3163funds. The federal - state agreement has been

3171executed, legislation required for compliance

3176has b een enacted, and comprehensive state

3183administrative rules have been enacted. The

3189legislature surely did not intend to cast

3196aside these years of effort and imperil the

3204state ' s share of future federal highway funds

3213simply to allow erection of some

3219nonconfor ming highway billboards. We instead

3225conclude, as respecting highway signs, that

3231the legislative intent was to authorize

3237erection of new like - kind signs to replace

3246grandfathered signs only if erection of the

3253signs would not be contrary to the Highway

3261Beaut ification Act and the federal

3267regulations. Because the appellant ' s

3273nonconforming signs do not satisfy this

3279condition they are not authorized.

3284Chancellor , 769 So. 2d at 549 - 550.

329231. The Department ' s rule does not enlarge, modify, or

3303contravene the feder al criterion. The rule reflects the federal

3313regulation ' s criterion that if a nonconforming sign is void of

3325advertising copy for a year , or from a plain language approach

" 3336blank " for a year, then it is considered abandoned and

3346discontinued , thus justifying the revocation of the permit to

3355operate the sign.

335832. Petitioners note that subsection (2)(b) of r ule 14 -

336910.007 was held to be invalid in Lamar Outdoor Advertising Ï

3380Lakeland v. Florida Department of Transportation , 17 So. 3d 799

3390(Fla. 1st DCA 2009), an d urge a similar result here. The rule

3403challenged in Lamar - Lakeland provided that raising the Height

3413Above Ground Level (HAGL) of a nonconforming sign would not be

3424considered reasonable repair and maintenance and would cause a

3433sign to lose its nonconformi ng status. The Court in Lamar -

3445Lakeland found that the " height " of a sign is distinct from the

" 3457size " of a sign and therefore regulations as to height exceeded

3468the authority in section 479.02(1) to control only the " size,

3478lighting, and spacing " of signs in accordance with federal

3487regulations. The height of signs is restricted only by state law

3498in section 479.07(9)(b) , as the federal - state agreement,

350723 U . S . C . § 131, and the Code of Federal Regulations do not

3524impose any restrictions on a sign ' s height. Th e present case is

3538distinguishable from Lamar - Lakeland because r ule 14 - 0.007(6)(b)

3549does not address a sign ' s height and the abandonment of

3561nonconforming signs is specifically provided for in federal law.

357033. Not considered in Lamar - Lakeland is the distinc tion

3581between nonconforming and conforming signs. Section 479.02(1)

3588gives the Department the authority to regulate signs as it

3598relates to " size, lighting, and spacing " in accordance with

3607federal regulations. The Department has promulgated r ule 14 -

361710.007 t o regulate nonconforming signs, defined by section

3626479.01(17), as signs that were " lawfully erected, but which do

3636not comply with land use, setback, size, spacing, and lighting

3646provisions of state or local law, rule, or regulation, or

3656ordinance passed at a later date . . . . " Because nonconforming

3668signs, by definition, do not comply with size, spacing, and

3678lighting requirements, it falls within the Department ' s authority

3688to apply the federal regulations as specifically authorized by

3697section 479.02(1) and ( 7).

370234. Nonconforming uses are allowed to remain under a

3711grandfather provision, despite their non - adherence to current

3720regulations, but are subject to removal once they lose their

3730nonconforming status. League to Save Lake Tahoe v. Crystal

3739Enter. , 685 F. 2d 1142 (9th Cir. 1982) (a nonconforming use may be

3752terminated after the lapse of a reasonable period of time

3762regardless of whether the property owner intends to abandon the

3772use); Lytle Co. v. Clark , 491 F.2d 834 (10th Cir. 1974) (after a

3785prescribed period of time without use, a nonconforming use may be

3796considered abandoned). The Department ' s regulations, which

3804mirror federal regulations, provide that the permitting rights of

3813nonconforming signs are extinguished after the signs have

3821suffered a period of no n - use for over one year. In adopting r ule

383714 - 10.007(6)(b) , the Department is enforcing the size, lighting,

3847spacing, and zoning requirements of federal and state law by not

3858allowing signs not in conformance with those laws to continue

3868after they have been abandoned.

3873III. Vagueness

387535. Section 120.52(8)(d) provides that a rule is an invalid

3885exercise of delegated legislative authority if " [t]he rule is

3894vague, fails to establish adequate standards for agency

3902decisions, or vests unbridled discretion with th e agency. "

3911Petitioners suggest that the rule is vague because the terms

" 3921blank " and " bona fide public service message " are not defined,

3931leaving sign owners to guess as to their meaning. Blank is not a

3944word subject to numerous interpretation s and, therefo re, a

3954further definition is unwarranted. Petitioners have not

3961indicated that they left their signs without a message for over a

3973year because they interpreted " blank " to mean something not

3982contemplated by the rule. Petitioners merely allegedly failed to

3991c omply with a very plain term and now seek redress by having the

4005term " blank " subject to unnecessary scrutiny. Osage Outdoor

4013Adver . , Inc., v. State H igh w a y Comm ' n of M o. , 696 S.W. 2d 805

4033(M o. Ct.App 1985) (owners of nonconforming signs advertising

4042product no longer available must be required to know the adequacy

4053of their tenant ' s advertising message, and correct any

4063deficiencies within the time alotted).

406836. The term " bona fide public service message " is also not

4079subject to numerous interpretations. The term " bona fide " means

4088the use must be real, actual, and of a genuine nature, as opposed

4101to a sham or deception. Gianolo v. Markham , 564 So. 2d 1131

4113(Fla. 4th DCA 1990)(citing Hausman v. Rudkin , 268 So. 2d 407

4124(Fla. 4th DCA 1972)). The Department takes a plain language

4134interpretation of this provision to mean information that

4142benefits the public .

414637. The Department ' s rule is consistent with guidance

4156provided by the United States Department of Transportation in a

4166Memorandum issued January 17, 1977, regar ding what constitutes

4175blank signs under 23 C . F . R . Part § 750.707, stating:

4189When a sign remains blank for the established

4197period, it loses its nonconforming status or

4204right and must be treated as an abandoned or

4213discontinued sign. Blank is defined as void

4220o f advertising matter. An " available for

4227lease " or similar message that concerns the

4234availability of the sign itself does not

4241constitute advertising matter. A sign with

4247such a message is treated as abandoned or

4255discontinued after expiration of the time

4261pe riod established by the State. When a sign

4270displays such a message, the sign owner is in

4279fact acknowledging that the sign facing is

4286without live copy.

4289Similarly, a sign whose message has been

4296partially obliterated by the owner so as not

4304to identify a par ticular product, service or

4312facility is treated as a blank sign.

431938. The terms included in the rule are subject to a plain

4331and ordinary meaning , establish adequate standards, are not

4339vague, and do not vest unbridled discretion with the Department.

4349IV. Arbitrary and Capricious

435339. Section 120.52(8)(e) provides that a rule is an invalid

4363exercise of delegated legislative authority if the rule is

4372arbitrary and capricious. A rule is arbitrary if it is not

4383supported by logic or the necessary facts , and a rule is

4394capricious if it is adopted without thought or reason or is

4405irrational.

440640. Petitioners allege that rule 14 - 10.007(6)(b) is

4415arbitrary and capricious because the rule ' s requirement that

4425nonconforming signs display advertising does not support the

4433legislative intent stated in section 479.015 of protecting the

4442public investments in highways, conserving natural beauty, and

4450ensuring that information is provided in a safe manner.

445941. The removal of nonconforming signs that clutter what

4468would otherwise be open space is within the purpose and intent of

4480highway beautification provisions. See Osage Outdoor Adver . ,

4488Inc. v. State Highway Comm 'n of M o. , 696 S.W. 2d 805 (M o. Ct.

4504App. 1985). Furthermore, the rule is not arbitrary or capricious

4514because it was adopted specifically to comply with federal

4523regulations. Recently, in CBS Outdoor Inc. , and SLG

4531Investments, LLC v. Florida Department of Transportation , 124 So.

45403d 383 (Fla. 1st DCA 2013), the Court acknowledged that the

4551federal government " leans hard o n the states by conditioning

4561serious money on whether they will accommodate federal aesthetic

4570preferences along the interstate highways. " The rule in the

4579present case, which is premised on federal requirements relating

4588to aesthetic preferences along the i nterstate, and subject to

4598federal penalties, was not taken without thought or reason , as

4608suggested by Petitioners.

4611V. Free Speech

461442. Lastly, Petitioners argue that r ule 14 - 10.007(6)(b) is

4625an unconstitutional restriction on free speech and is

4633unconstit utional as applied. DOAH is without authority to

4642determine the constitutionality of an existing rule under the

4651Florida Constitution. Dep ' t of HRS v. Fla. Med. Ctr, NME Hosp .,

4665Inc. , 578 So. 2d 351, 355 (Fla. 1st DCA 1991). A party may

4678challenge the const itutionality of a rule for the first time on

4690appeal from a final order in a proceeding challenging agency

4700action. See Key Haven Associated Enters . , Inc. v. Bd. of

4711Trustees of the Internal Improvement Trust Fund , 427 So. 2d 153

4722(Fla. 1982); Rice v. Dep ' t o f HRS , 386 So. 2d 844 (Fla. 1 st DCA

47401980).

4741DISPOSITION

4742Based on the foregoing Findings of Fact and Conclusions of

4752Law, it is hereby ORDERED that the Department's Cross - Motion for

4764Summary Final Order is GRANTED , and the rule challenge s are

4775DISMISSED.

4776DONE AND ORDERED this 10th day of January , 2014 , in

4786Tallahassee, Leon County, Florida.

4790S

4791LINZIE F. BOGAN

4794Administrative Law Judge

4797Division of Administrative Hearings

4801The DeSoto Building

48041230 Apalachee Parkway

4807Tallahassee, Flo rida 32399 - 3060

4813(850) 488 - 9675

4817Fax Filing (850) 921 - 6847

4823www.doah.state.fl.us

4824Filed with the Clerk of the

4830Division of Administrative Hearings

4834this 10th day of January , 2014 .

4841ENDNOTE S

48431/ Carter Sign Rentals/Carter - Pritchett Advertising, Inc., also

4852fil ed a Petition for Formal Administrative Hearing challenging a

4862Notice of Intent to Revoke outdoor advertising permits for an

4872abandoned sign in DOAH Case No. 13 - 1195. On September 24, 2013,

4885Case No. 13 - 1195 was consolidated with this matter. On

4896October 25 , 2013, upon Carter ' s motion, Case No. 13 - 1195 was

4910severed from the instant proceedings and is in abeyance pending

4920the outcome of the instant proceeding.

49262/ All subsequent references to Florida Statutes will be to

49362012, unless otherwise indicated.

4940COPI ES FURNISHED:

4943Kimberly Clark Menchion, Esquire

4947Department of Transportation

4950Mail Station 58

4953605 Suwannee Street

4956Tallahassee, Florida 32399

4959Julie E. Nevins, Esquire

4963Hogan Lovells US, LLP

4967Suite 2700

4969600 Brickell Avenue

4972Miami, Florida 33131

4975Jacob D. Var n, Esquire

4980Fowler, White, Boggs, P.A.

4984101 North Monroe Street, Suite 1090

4990Post Office Box 11240

4994Tallahassee, Florida 32302 - 3240

4999Susan Schwartz, Esquire

5002Department of Transportation

5005Haydon Burns Building, Mail Station 58

5011605 Suwannee Street

5014Tallahassee, F lorida 32399 - 0450

5020Gerald Curington, General Counsel

5024Department of Transportation

5027Haydon Burns Building, Mail Station 58

5033605 Suwannee Street

5036Tallahassee, Florida 32399 - 0450

5041( e - Served)

5045Liz Cloud, Program Administrator

5049Administrative Code

5051Department of S tate

5055R.A. Building, Suite 101

5059Tallahassee, Florida 32399

5062( e - Served)

5066Mr. Ken Plante, Coordinator

5070Joint Administrative Procedures Committee

5074Room 680, Pepper Building

5078111 West Madison Street

5082Tallahassee, Florida 32399 - 1400

5087( e - Served)

5091Trish Parson, Clerk o f Agency Proceedings

5098Department of Transportation

5101Haydon Burns Building, Mail Station 58

5107605 Suwannee Street

5110Tallahassee, Florida 32399 - 0450

5115( e - Served)

5119NOTICE OF RIGHT TO JUDICIAL REVIEW

5125A party who is adversely affected by this Final Order is entitled

5137to judicial review pursuant to section 120.68, Florida Statutes.

5146Review proceedings are governed by the Florida Rules of Appellate

5156Procedure. Such proceedings are commenced by filing the original

5165notice of administrative appeal with the agency clerk of the

5175Division of Administrative Hearings within 30 days of rendition

5184of the order to be reviewed, and a copy of the notice,

5196accompanied by any filing fees prescribed by law, with the clerk

5207of the District Court of Appeal in the appellate district where

5218the agency maintains its headquarters or where a party resides or

5229as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/30/2016
Proceedings: Transmittal letter from Claudia Llado forwarding the Transcript and Exhibits the agency.
PDF:
Date: 12/19/2014
Proceedings: Mandate
PDF:
Date: 12/19/2014
Proceedings: Mandate filed.
PDF:
Date: 10/31/2014
Proceedings: Opinion filed.
PDF:
Date: 10/30/2014
Proceedings: Opinion
PDF:
Date: 10/30/2014
Proceedings: BY ORDER OF THE COURT: cases have been consolidated for the purposes of this proceeding.
PDF:
Date: 04/03/2014
Proceedings: Index, Record, and Certificate of Record sent to the First District Court of Appeal.
PDF:
Date: 02/27/2014
Proceedings: Index (of the Record) sent to the parties of record.
PDF:
Date: 02/27/2014
Proceedings: Invoice for the record on appeal mailed.
PDF:
Date: 02/24/2014
Proceedings: BY ORDER OF THE COURT: The unopposed motion to consolidate is granted.
Date: 02/14/2014
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 02/04/2014
Proceedings: Acknowledgment of New Case, First DCA Case No. 1D14-0477 (Nissi, Inc.) filed.
PDF:
Date: 02/04/2014
Proceedings: Acknowledgment of New Case, First DCA Case No. 1D14-0480 (Carter Sign Rentals) filed.
PDF:
Date: 02/03/2014
Proceedings: Notice of Appeal filed and Certified copy sent to the First District Court of Appeal this date. (13-3518RX)
PDF:
Date: 02/03/2014
Proceedings: Notice of Appeal filed and Certified copy sent to the First District Court of Appeal this date. (13-1623RX)
PDF:
Date: 01/10/2014
Proceedings: DOAH Final Order
PDF:
Date: 01/10/2014
Proceedings: Summary Final Order (hearing held December 11, 2013). CASE CLOSED.
PDF:
Date: 12/23/2013
Proceedings: Notice of Joinder in and Adoption of Reply in Support of Motion for Summary Final Order and in Opposition to Department's Cross-motion (filed in Case No. 13-003518RX).
PDF:
Date: 12/23/2013
Proceedings: Petitioner Carter Sign Rentals, Inc.'s Reply in Support of Motion for Final Summary Order and in Opposition to the Department's Cross-motion for Final Summary Order filed.
PDF:
Date: 12/23/2013
Proceedings: Petitioner Carter Sign Rentals, Inc.'s Proposed Final Order filed.
PDF:
Date: 12/23/2013
Proceedings: The Department of Transportation's Proposed Final Order filed.
PDF:
Date: 12/23/2013
Proceedings: Proposed Final Order of Petitioner, Nissi, Inc (filed in Case No. 13-003518RX).
PDF:
Date: 12/18/2013
Proceedings: Notice of Filing Joint Exhibits (Part 3 of 3; Joint Exhibit 10, part 2 of 2, attached) filed.
PDF:
Date: 12/18/2013
Proceedings: Notice of Filing Joint Exhibits (Part 2 of 3; Joint Exhibit 10, part 1 of 2, attached) filed.
PDF:
Date: 12/18/2013
Proceedings: Notice of Filing Joint Exhibits (Part 1 of 3; Joint Exhibits 1-9, attached) filed.
PDF:
Date: 12/18/2013
Proceedings: Department of Transportation's Response to Petitioner's Motion of Summary Judgment and Cross-motion for Summary Final Order filed.
Date: 12/11/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/10/2013
Proceedings: Notice of Joinder In and Adoption of Motion for Summary Final Order (filed in Case No. 13-003518RX).
PDF:
Date: 12/09/2013
Proceedings: Motion for Summary Final Order and Memorandum of Law filed.
PDF:
Date: 12/09/2013
Proceedings: Notice of Filing Deposition of Robert Jessee filed.
PDF:
Date: 12/06/2013
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 12/06/2013
Proceedings: Notice of Appearance (Susan Schwartz) filed.
PDF:
Date: 12/03/2013
Proceedings: Amended Notice of Hearing (hearing set for December 11 and 12, 2013; 9:00 a.m.; Tallahassee, FL; amended as to dates of hearing).
PDF:
Date: 11/26/2013
Proceedings: Supplemental Response to Petitioner's, Carter Sign Rentals, Inc./Carter Pritchett Advertising, Inc., Second Request for Production of Documents filed.
PDF:
Date: 11/26/2013
Proceedings: Cross-notice of Taking Deposition Via Video Conference (of Representative for Florida Department of Transportation; filed in Case No. 13-003518RX).
PDF:
Date: 11/26/2013
Proceedings: Notice of Appearance (Rex Ware; filed in Case No. 13-003518RX).
PDF:
Date: 11/25/2013
Proceedings: Unopposed Motion to Shorten the Final Hearing and to Start the Final Hearing on December 11, 2013 filed.
PDF:
Date: 11/20/2013
Proceedings: Re-notice of Taking Deposition of Respondent Via Video-Conference filed.
PDF:
Date: 11/06/2013
Proceedings: Notice of Taking Deposition of Respondent filed.
PDF:
Date: 10/29/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/29/2013
Proceedings: Amended Notice of Hearing (hearing set for December 10 through 12, 2013; 9:00 a.m.; Tallahassee, FL; amended as to Case Style).
PDF:
Date: 10/25/2013
Proceedings: Order Severing Case No. 13-1195.
PDF:
Date: 10/22/2013
Proceedings: Petitioner Carter Sign Rentals, Inc.'s Unopposed Motion to Stay Final Hearing on Case Number 13-1195 filed.
PDF:
Date: 09/24/2013
Proceedings: Notice of Transfer.
PDF:
Date: 09/24/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 13-1195, 13-1623RX and 13-3518RX).
PDF:
Date: 09/20/2013
Proceedings: Nissi's Unopposed Motion to Consolidate filed.
PDF:
Date: 08/09/2013
Proceedings: Response to Petitioner's, Carter Pritchett Advertising, Inc., Second Request for Production of Documents filed.
PDF:
Date: 08/07/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for December 10 through 12, 2013; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 07/31/2013
Proceedings: Petitioner's Unopposed Motion to Continue Final Hearing filed.
PDF:
Date: 07/05/2013
Proceedings: Petitioner's Second Request for Production to Respondent Department of Transportation filed.
PDF:
Date: 05/31/2013
Proceedings: Response to Petitioner's, Carter Pritchett Advertising, Inc., Request for Production of Documents filed.
PDF:
Date: 05/31/2013
Proceedings: Respondent's Notice of Serving Answers to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 05/20/2013
Proceedings: Petitioner's Responses and Objections to Respondent's First Request for Production of Documents filed.
PDF:
Date: 05/08/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 27 through 29, 2013; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 05/07/2013
Proceedings: Petitioner Carter Sign Rentals, Inc.'s Unopposed Motion to Continue Final Hearing on Consolidated Cases filed.
PDF:
Date: 05/07/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 13-1195 and 13-1623RX).
Date: 05/07/2013
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 05/07/2013
Proceedings: Notice of Appearance (Kimberly Menchion) filed.
PDF:
Date: 05/06/2013
Proceedings: Carter Sign Rentals, Inc.'s Unopposed Motion to Consolidate filed.
PDF:
Date: 05/06/2013
Proceedings: Notice of Transfer.
PDF:
Date: 05/06/2013
Proceedings: Notice of Telephonic Case Management Conference (set for May 7, 2013; 10:30 a.m.).
PDF:
Date: 05/03/2013
Proceedings: Order of Assignment.
PDF:
Date: 05/02/2013
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 05/01/2013
Proceedings: Petition to Challenge the Validity of an Existing Rule filed.

Case Information

Judge:
LINZIE F. BOGAN
Date Filed:
05/01/2013
Date Assignment:
05/06/2013
Last Docket Entry:
11/30/2016
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Transportation
Suffix:
RX
 

Counsels

Related Florida Statute(s) (11):