13-003518RX Nissi, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 10, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARTER SIGN RENTALS, INC. ,

Petitioner ,

vs. Case No. 13 - 1623RX

DEPARTMENT OF TRANSPORTATION ,

Respondent .

_______________________________/

NISSI, INC.,

Petitioner,

vs. Case No. 13 - 3518RX

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

SUMMARY FINAL ORDER

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

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

Division of Administrative He arings by its designated

Administrative Law Judge Linzie F. Bogan.

APPEARANCES

For Petitioner in Case No. 13 - 1623RX :

Julie E. Nevins, Esquire

Hogan Lovells US, LLP

Suite 2700

600 B rickell Avenue

Miami, Florida 33131

For Petitioner in Case No. 13 - 3518 RX :

Jacob D. Varn, Esquire

Fowler, White, Boggs, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302 - 3240

For Respondent :

Susan Schwartz, Esquire

Kimberly Clark Menchion, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

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

which provides for revocation of outdoor advertising permits for

n onconforming signs that are abandoned or discontinued, is an

" invalid exercise of delegated legislative authority " as alleged

by Petitioners.

PRELIMINARY STATEMENT

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

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

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

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

rule challenge petition has been assigned Division of

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

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

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

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

Carter ' s unopposed motion.

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

to Challenge the Validity of an Existing Rule, which also

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

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

motion, the Carter and Nissi challenges were consolidated .

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

Final Hearing, an Amended Notice of Hearing setting the hearing

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

the parties filed a Joint Prehearing Stipulation settin g forth

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

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

are no disputes of material fact related to this proceeding.

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

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

Notice of Joinder in and Adoption of Motion for Summary Final

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

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

Summary Final Order.

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

through 10 were received into evidence. No witnesses were

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

same have been considered in preparing this Final Order.

FINDING S OF FACT

1. The Department of Transportation is the state agency

responsible for administering and enforcing the outdoor

advertising program in accordance with c hapter 479, Florida

Statutes.

2. The Department adopted Florida Admi nistrative Code

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

outdoor advertising signs visible to and within controlled areas

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

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

Statutes, defines nonconforming signs as signs that were lawfully

erected but which do not comply with later enacted laws,

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

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

comply with current regulations due to changed conditions.

3. Rule 14 - 10.007 provides in part that:

(6) A nonconforming sign may continue to

exist so long as it is not destroyed,

abandoned, or discontinued. " Destroyed, "

" abandoned, " and " d iscontinued " 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 m onths 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 on ly an " available for

lease " or similar message,

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.

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

advertising in Florida and holds an outdoor advertising permit

for a nonconforming outdoor advertising sign bearing Tag

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

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

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

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

The n otice advises that " this nonconforming sign has not

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

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

Code. "

5. Petitioner Nissi is licensed to engage in the business

of outdoor advertising in Florida and holds outdoor advertising

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

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

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

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

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

based on the signs not displaying advertising for 12 months or

longer. The notice issued to Nissi advised that the Department

deemed the signs as having been abandoned.

6. Carter and Nissi, as owners of nonconforming signs

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

and timely challenged the rule in dispute herein.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties and subject

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

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

section 120.56, which allows substantially affected persons to

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

specific factual scenario. See Fairfield Communities v. Fla.

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

1988).

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

invalid exercise of delegated legislative authority under section

120.52(8) because: (a) the Department exceeded the grant of

rulemaking authority dele gated by the Florida Legislature;

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

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

is vague, fails to establish adequate standards for agency

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

(d) the r ule is arbitrary and capricious.

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

the flush left provision, includes general standards for

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

A grant of rul emaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling stat ute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency ' s class of

powers and duties, nor shall an agency have

the aut hority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implem enting or interpreting the

specific powers and duties conferred by the

enabling statute.

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

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

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

2000).

11. This standard has been held to mean that:

Agencies have rulemaking authority only where

the Legislature has enacted a specific

statute, and authorized the agency to

implement it, and then only if the (proposed)

r ule implements or interprets specific powers

or duties, as opposed to improvising in an

area that can be said to fall only generally

within some class of powers or duties the

Legislature has conferred on the agency.

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

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

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

burden of proving by a preponderance of the evidence that the

existing rule is an invalid exercise of delegated legislativ e

authority as to the objections raised.

I. Rulemaking Authority

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

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

120.536(1) and 120.54 to implement the provisions of law

conferring duties upon it. "

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

the Department to:

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

between the state and the United States

Department of Transportation relating to the

size, lighting, and spacing of signs in

accordance with Title I of the Highway

Beautification Act of 1965 and Title 23,

United States Code, and federal regulations

in effect as of the effective date of this

act.

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

479.02(1), is the Agreement of January 27, 1972, between the

State of Florida and United States Department of Transportation

pertaining to " carrying out national policy relative to control

of outdoor advertising in areas adjacent to the National System

of Interstate and Defense Highways and the Federal - aid Primary

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

23, section 131, United States Code. "

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

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

of this chapter, including rules which identify activities that

may not be recognized as industrial or commercial activities for

purposes of determination of an area as an unzoned commercial or

industrial area. "

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

rulemaking authority delegated by the Florida Legislature in that

section 479.02 provides the Department authority to administer

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

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

The federal regulations give the Department the authority to

define abandonment and discontinuance within the criterion

established by the Federal regulations. The Department ' s rule

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

The rule reflects the federal regulation ' s criterion.

18. Petitioners assert that the Department ' s rulemaking

authority is insufficient for the adoption of a rule related to

the content of outdoor advertising signs. Contrary to

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

proceeding, is not regulating the " content of outdoor advertising

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

outdoor advertising sign. Regardless, Petitioner s ha ve not

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

rulemaking authority.

19. As explained in Board of Trustees of Internal

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

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

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

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

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

of rulemaking authority can be used in conjunction with a

specific provision of law to be implemented.

20. Petitioners argue that the present case is similar to

State Department of Financial Services v. Peter R. Brown

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

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

payments did not provide authority for a rule prohibiting certain

expenditures. The statute referenced in Brown Construction was

narrowly tailored to a specific subject - the processing of

invoices. Conversely, the rulemaking authority in t he present

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

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

21. A broad grant of rulemaking authority allows state

agencies to create rules needed to effectively administer the ir

program areas. In Frandsden v. Department of Environmental

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

expressions of free speech to non - commercial activities approved

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

auth ority of the Department of Environmental Protection, Division

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

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

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

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

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

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

the rule.

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

and disc ontinuance of nonconforming signs, has not exceeded its

grant of rulemaking authority to adopt rules as it deems

necessary or proper for the administration of the outdoor

advertising program.

II. Specific Statutory Authority

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

enlarges, modifies, and contravenes the specific provision of the

law implemented. Petitioners argue that sections 339.05, 479.02

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

authority for the Department to adopt a rule regulating the

content of outdoor advertising signs.

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

outdoor advertising signs. The rule provides that nonconforming

outdoor advertising signs that do not display outdoor advertising

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

deemed abandoned and will lose the permits issued under c hapter

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

a year are likewise considered abandoned.

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

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

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

similar message, displays advertising for a product or service

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

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

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

therefore considered abandoned or discontinued. The Agreement,

which is incorporated into section 479.02 by express reference,

expressly authorizes the Department to adopt standards related to

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

are within the scope of the agreement.

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

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

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

The sign may continue as long as it is not

destroyed, abandoned, or discontinued. If

permitted by State law and reerected in kin d,

exception may be made for signs destroyed due

to vandalism and other criminal or tortious

acts.

(i) Each state shall develop criteria to

define destruction, abandonment and

discontinuance. These criteria may provide

that a sign which for a designated period of

time has obsolete advertising matter or is

without advertising matter or is in need of

substantial repair may constitute abandonment

or discontinuance. Similarly, a sign damaged

in excess of a certain percentage of its

replacement cost may be c onsidered destroyed.

(ii) Where an existing nonconforming sign

ceases to display advertising matter, a

reasonable period of time to replace

advertising content must be established by

each State. Where new content is not put on

a structure within the est ablished period,

the use of the structure as a nonconforming

outdoor advertising sign is terminated and

shall constitute an abandonment or

discontinuance. Where a State establishes a

period of more than one (1) year as a

reasonable period for change of me ssage, it

shall justify that period as a customary

enforcement practice within the State. This

established period may be waived for an

involuntary discontinuance such as the

closing of a highway for repair in front of

the sign.

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

Florida and the Unite d States Department of Transportation

requires the State of Florida to administer and enforce federal

regulations on outdoor advertising. Included within the

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

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

nonconforming signs under the Highway Beautification Act of 1965.

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

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

meet size and spacing requirements. Signs that were lawfully

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

nonconforming signs as defined by section 479.01(17).

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

rul emaking authority delegated by the Florida Legislature in that

the authorizing statutes provide the Department authority to

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

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

1977) , disapproved on other grounds by LaPointe Outdoor Adver . v.

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

479.02 provides sufficient authority for rules based on federal

regulations because it is " obvious the legislature may adopt

provisi ons of federal statutes and administrative rules made by a

federal administrative

body . . . " ) .

30. The Department ' s obligation to administer and enforce

federal regulations was addressed in Chancellor Media Whiteco

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

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

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

directing the removal of nonconforming signs reconstructed after

being destroyed by wildfire, stating:

Florid a has exerted considerable effort over

the last 30 years in complying with the

Highway Beautification Act in order to

protect its full share of federal highway

funds. The federal - state agreement has been

executed, legislation required for compliance

has b een enacted, and comprehensive state

administrative rules have been enacted. The

legislature surely did not intend to cast

aside these years of effort and imperil the

state ' s share of future federal highway funds

simply to allow erection of some

nonconfor ming highway billboards. We instead

conclude, as respecting highway signs, that

the legislative intent was to authorize

erection of new like - kind signs to replace

grandfathered signs only if erection of the

signs would not be contrary to the Highway

Beaut ification Act and the federal

regulations. Because the appellant ' s

nonconforming signs do not satisfy this

condition they are not authorized.

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

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

contravene the feder al criterion. The rule reflects the federal

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

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

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

discontinued , thus justifying the revocation of the permit to

operate the sign.

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

10.007 was held to be invalid in Lamar Outdoor Advertising Ï

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

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

challenged in Lamar - Lakeland provided that raising the Height

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

considered reasonable repair and maintenance and would cause a

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

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

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

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

lighting, and spacing " of signs in accordance with federal

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

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

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

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

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

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

nonconforming signs is specifically provided for in federal law.

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

between nonconforming and conforming signs. Section 479.02(1)

gives the Department the authority to regulate signs as it

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

federal regulations. The Department has promulgated r ule 14 -

10.007 t o regulate nonconforming signs, defined by section

479.01(17), as signs that were " lawfully erected, but which do

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

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

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

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

lighting requirements, it falls within the Department ' s authority

to apply the federal regulations as specifically authorized by

section 479.02(1) and ( 7).

34. Nonconforming uses are allowed to remain under a

grandfather provision, despite their non - adherence to current

regulations, but are subject to removal once they lose their

nonconforming status. League to Save Lake Tahoe v. Crystal

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

terminated after the lapse of a reasonable period of time

regardless of whether the property owner intends to abandon the

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

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

considered abandoned). The Department ' s regulations, which

mirror federal regulations, provide that the permitting rights of

nonconforming signs are extinguished after the signs have

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

14 - 10.007(6)(b) , the Department is enforcing the size, lighting,

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

allowing signs not in conformance with those laws to continue

after they have been abandoned.

III. Vagueness

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

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

vague, fails to establish adequate standards for agency

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

Petitioners suggest that the rule is vague because the terms

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

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

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

further definition is unwarranted. Petitioners have not

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

year because they interpreted " blank " to mean something not

contemplated by the rule. Petitioners merely allegedly failed to

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

term " blank " subject to unnecessary scrutiny. Osage Outdoor

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

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

product no longer available must be required to know the adequacy

of their tenant ' s advertising message, and correct any

deficiencies within the time alotted).

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

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

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

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

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

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

interpretation of this provision to mean information that

benefits the public .

37. The Department ' s rule is consistent with guidance

provided by the United States Department of Transportation in a

Memorandum issued January 17, 1977, regar ding what constitutes

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

When a sign remains blank for the established

period, it loses its nonconforming status or

right and must be treated as an abandoned or

discontinued sign. Blank is defined as void

o f advertising matter. An " available for

lease " or similar message that concerns the

availability of the sign itself does not

constitute advertising matter. A sign with

such a message is treated as abandoned or

discontinued after expiration of the time

pe riod established by the State. When a sign

displays such a message, the sign owner is in

fact acknowledging that the sign facing is

without live copy.

Similarly, a sign whose message has been

partially obliterated by the owner so as not

to identify a par ticular product, service or

facility is treated as a blank sign.

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

and ordinary meaning , establish adequate standards, are not

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

IV. Arbitrary and Capricious

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

exercise of delegated legislative authority if the rule is

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

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

capricious if it is adopted without thought or reason or is

irrational.

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

arbitrary and capricious because the rule ' s requirement that

nonconforming signs display advertising does not support the

legislative intent stated in section 479.015 of protecting the

public investments in highways, conserving natural beauty, and

ensuring that information is provided in a safe manner.

41. The removal of nonconforming signs that clutter what

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

highway beautification provisions. See Osage Outdoor Adver . ,

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

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

because it was adopted specifically to comply with federal

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

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

3d 383 (Fla. 1st DCA 2013), the Court acknowledged that the

federal government " leans hard o n the states by conditioning

serious money on whether they will accommodate federal aesthetic

preferences along the interstate highways. " The rule in the

present case, which is premised on federal requirements relating

to aesthetic preferences along the i nterstate, and subject to

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

suggested by Petitioners.

V. Free Speech

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

an unconstitutional restriction on free speech and is

unconstit utional as applied. DOAH is without authority to

determine the constitutionality of an existing rule under the

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

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

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

appeal from a final order in a proceeding challenging agency

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

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

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

1980).

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

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

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

DISMISSED.

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

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 10th day of January , 2014 .

ENDNOTE S

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

fil ed a Petition for Formal Administrative Hearing challenging a

Notice of Intent to Revoke outdoor advertising permits for an

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

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

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

severed from the instant proceedings and is in abeyance pending

the outcome of the instant proceeding.

2/ All subsequent references to Florida Statutes will be to

2012, unless otherwise indicated.

COPI ES FURNISHED:

Kimberly Clark Menchion, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Julie E. Nevins, Esquire

Hogan Lovells US, LLP

Suite 2700

600 Brickell Avenue

Miami, Florida 33131

Jacob D. Var n, Esquire

Fowler, White, Boggs, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302 - 3240

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, F lorida 32399 - 0450

Gerald Curington, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

( e - Served)

Liz Cloud, Program Administrator

Administrative Code

Department of S tate

R.A. Building, Suite 101

Tallahassee, Florida 32399

( e - Served)

Mr. Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

( e - Served)

Trish Parson, Clerk o f Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

( e - Served)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

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

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

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.