15-000733 Margaret Hogan Marker, D/B/A Hft Advertising vs. Department Of Transportation Status: Closed Recommended Order on Monday, September 14, 2015.

Summary: The Department properly denied Petitioner's permit application because the sign failed to meet the spacing requirements of section 479.07 and no exemptions apply.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHRYN HOGAN PEREDA AND

MARGARET HOGAN MARKER, d/b/a HFT

ADVERTISING,

Petitioner,

Case No. 15 - 0733

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 29, 2015, by video teleconference in Miami and Tallahassee

Florida, before June C. McKinney, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Austin M. Hensel, Esquire

Kimberly Menchion, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Stree t, Mail Station 58

Tallahassee, Florida 32399

For Respondent: William G. McCormick, Esquire

Gray Robinson, P.A.

401 East Las Olas Boulevard, Suite 1000

Fort Lau derdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Transportation (ÐDepartmentÑ) properly issued a Notice of Denied

Outdoor Advertising Permit Application for the eastward face of

the Monument Sign owned by Kathryn Hogan Pereda and Margaret

Hogan Marker, d/b/a/ HFT Advertising ( ÐPetitionerÑ or ÐHFTÑ) .

PRELIMINARY STATEMENT

On November 12, 2013, the Department issued HFT a Notice of

Denied Outdoor Advertising Permit Application advising that HFTÓs

applicatio n s were denied fo r the following reason:

Sign does not meet spacing requirements

(1500Ó for interstates, 1000Ñ for FAP). In

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

CG242/243 . Held by: Clear Channel Outdoor -

South Florida Division .

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

On December 17, 2013, HFT filed a Petition for Formal

Proceedings, requesting a formal administrative hearing to

challenge the DepartmentÓs exercise of permitting jurisdiction

and denial of the sign permit application.

On February 13, 2015, the Department referred the matter to

the Division of Administrative Hearings (ÐDOAHÑ). The final

hearing was scheduled for May 29, 2015 , and proceeded as

scheduled .

At the final hearing, HFT presented the testimony of two

witnesses: Howard T. Hogan, Jr., an d Daniel Blanton, a surveyor

who testified as an expert. PetitionerÓs Exhibits 1 through 10,

12 through 14, and 17 were received into evidence. The

Department called two witnesses: Kenneth Pye, Department Outdoor

Advertising Field Operations Supervisor, and Mark Johnson, a

Regional Outdoor Advertising Inspector. The DepartmentÓs

Exhibits numbered 1 through 6 were received into evidence.

The proceedings were recorded and transcribed. On June 19,

2015, the two - volume Transcript was filed at DOAH . Petit ioner

requested an extension until August 7, 2015, to file PetitionerÓs

proposed recommended order , which the Department opposed. The

undersigned granted the extension.

On July 30, 2015, Petitioner filed a Motion to Reopen

Evidence and Request for Judicia l Notice, requesting the

undersigned to receive into evidence the transcript of certain

testimony given by Kenneth Pye and Mark Johnson in DOAH Case

No. 13 - 0855 and the Final Order. On July 31, 2015, the

Department filed Objection to PetitionerÓs Motion t o Reopen

Evidence and Request for Judicial Notice. On August 3, 2015, the

undersigned denied HFTÓs Motion.

Both parties filed p roposed r ecommended o rders, which the

undersigned considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1 . In 1979, PetitionerÓs family acquired the property at

2930 Southwest 30th Avenue, Pembroke Park, Florida. The familyÓs

parcel is part of a subdivision of several smaller parcels, which

house s a number of different businesses. Subsequently,

PetitionerÓ s grandparents purchased the sign parcel, which was

conveyed to Petitioner in 1989. The original sign on the sign

parcel was the Coral Base Sign (ÐCoral Base SignÑ).

2. The Department is the state agency responsible, inter

alia, for the regulation of ou tdoor advertising signs located

within 66 0 feet of , and visible from, interstate highways.

3. In approximately 1991, Petitioner replaced the Coral

Base Sign. HFT retained a contractor to construct the new sign

(ÐMarquee SignÑ). HFT made sign space avail able to other

S outhwest 30th Avenue businesses on the Marquee Sign.

4. The Marquee Sign was built as a free - standing sign that

was 10 feet wide and 15 feet high and was permitted through the

T own of Pembroke Park.

5. When the contractor built the Marqu ee Sign, he did not

remove the footings from the original Coral Base Sign to build

the new sign. Instead, footings for the new sign were placed

immediately contiguous to the Coral Base Sign footings on the CSX

railroad property.

6. In 1994, HFT went bac k before the T own of Pembroke Park

and obtained approval through a variance proceeding for a permit

to add another section to the Marquee Sign and made it with two

faces 15 feet high and 20 feet wide. The expansion allowed more

businesses in the subdivisi on to advertise.

7. In 2010, the Department notified Petitioner that the

Marquee Sign was located within the DepartmentÓs right - of - way.

By letter dated May 28, 2010, the Department informed Petitioner

Ðper Florida Statutes, signs are prohibited to be wit hin the

right - of - way and will need to be relocated onto property owned by

Margaret Claire Hogan and Kathryn Anne Hogan.Ñ

8. Petitioner believed the Marquee Sign was on their

familyÓs sign parcel but found out after a survey that the sign

was not on their property but on the right - of - way.

9. In 2011, Petitioner complied with the DepartmentÓs

request to relocate the sign. HFT obtained another permit from

the Town of Pembroke Park and removed the Marquee Sign from the

DepartmentÓs right - of - way. Petitioner spent approximately

$50,000.00 permitting, designing, and erecting the current HFT

Monument Sign (ÐMonument SignÑ) back in the location east o f the

sign parcel where the Coral Base Sign had stood originally.

10. The only viable use of the parcel on which the Monument

Sign is located is the operation and maintenance of the Monument

Sign.

11. Space on the Monument Sign is leased by Petitioner to

the owners/operators of the S outhwest 30th Avenue businesses for

the purpose of identifying the location of thei r respective

businesses to their customers and potential customers. The

Monument Sign does not identify any businesses other than the

Southwest 30th Avenue businesses.

12. The Monument Sign is located within the controlled area

of both Hallandale Beach B oulevard and I - 95. I - 95 is part of the

interstate highway system. The eastward face of the Monument

Sign is visible from the main - traveled way of I - 95.

13. A Clear Channel Sign is on the same side of I - 95 as the

Monument Sign. The Clear Channel Sign wa s permitted by the

Department in 1984. It is located approximately 250 feet to the

south of the Monument Sign.

14. On August 2, 2013, Mark Johnson (ÐJohnsonÑ), a Regional

Outdoor Advertising Inspector with the Department, performed an

inspection of the Monument Sign and determined that it is an

illegal and unpermitted sign. Johnson posted a Notice of

Violation on the Monument Sign stating the sign was in violation

of the permitting requirements of s ection 479.07, Florida

Statutes (2015).

15. On August 5, 2013, the Department issued four Notices

of Violation - Illegally Erected Sign to the Town of Pembroke Park

and the four businesses advertised on the Monument Sign. The

Notices of Violation apprised the owners that the Monument Sign

was in violation of s ection 479.105 and that within 30 days the

sign either needed to be removed or an outdoor advertising permit

application needed to be filed with the Department.

Administrative hearing rights and permit application instructions

were also made available in t he Notices of Violation. However,

no request for an administrative hearing was received by the

Department.

16. On September 4, 2013, HFT submitted two outdoor

advertising permit applications numbers 59865 and 59866 for the

eastward and westward faces of the Monument Sign, which was

erected in 2011. On September 6, 2013, the Department returned

HFTÓs applications as incomplete.

17. On October 15, 2013, HFT submitted two outdoor

advertising permit applications numbers 60016 and 60017 for the

eastward and westward faces of the Monument Sign.

18. On November 12, 2013, the Department denied

PetitionerÓs applications for permit. The Notice of Denied

Outdoor Advertising Permit Application provided the following

basis for denial:

Sign does not meet spacing re quirements

(1500Ó for interstates, 1000Ñ for FAP). In

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

CG242/243 . Held by: Clear Channel Outdoor -

South Florida Division .

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

19. On December 17, 2013, HFT timely filed a Request for

Fo rmal Administrative Hearing contesting the DepartmentÓs

exercise of permitting jurisdiction and the denial notice. HFT

does not dispute that : (i) I - 95 is an interstate highway within

the DepartmentÓs permitting jurisdiction; (ii) the HFT Monument

Sign is within 660 feet of the nearest edge of I - 95; or (iii) the

HFT Monument Sign is located within 1500 feet of another

permitted sign on the same side of I - 95.

20. On January 6, 2014, the Department determined the

westward face of the Monument Sign was not v isible from I - 95 and

met the spacing requirement for Hallandale Beach Boulevard. The

Department issued permit number 56688 for the westward face of

the Monument Sign but did not permit the eastward face.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the subject matter of th i s

proceeding and of the parties thereto pursuant to section s

120.569 and 120.57 (1), Florida Statutes (2015) .

22. Chapter 479 provides the Department the authority to

regulate outdoor advertising and to issue permits for Ðsigns in

areas adjacent to state highways.Ñ

23. This proceeding is de novo . § 120.57(1)(k), Fla. Stat.

24. The party seeking the affirmative of an issue before an

administrative tribunal bears the burden to prove its allegation.

Fla . DepÓt of Transp. v. J.W.C . , 396 So. 2d 778, 788 (Fla. 1st

DCA 1981). Accordingly, Petitioner HFT, as the applicant , bears

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

should be granted the permit for which it has applied.

25. Section 479.07(1) provides in per tinent part:

(1) Except as provided in ss. 479.105(1) and

479.16, a person may not erect, operate, use,

or maintain, or cause to be erected,

operated, used, or maintained, any sign on

the State Highway System outside an urban

area or on any portion of the interstate or

federal - aid primary highway system without

first obtaining a permit for the sign from

the department and paying the annual fee as

provided in this section. As used in this

section, the term Ðon any portion of the

State Highway System, inter state highway

system, or federal - aid primary systemÑ means

a sign located within the controlled area

which is visible from any portion of the

main - traveled way of such system.

26. The DepartmentÓs determination regarding the Notice of

Denied Outdoor Adve rtising Permit Application is based on section

479.07(9)(a), which provides in pertinent part:

(a) A permit may not be granted for any sign

for which a permit had not been granted by

the effective date of this act unless such

sign is located at least:

1 . One thousand five hundred feet from any

other permitted sign on the same side of the

highway, if on an interstate highway.

2 . One thousand feet from any other

permitted sign on the same side of the

highway, if on a federal - aid primary highway.

The min imum spacing provided in this

paragraph does not preclude the permitting of

V - type, back - to - back, side - to - side, stacked,

or double - faced signs at the permitted sign

site. If a sign is visible to more than one

highway subject to the jurisdiction of the

dep artment and within the controlled area of

the highways, the sign must meet the

permitting requirements of all highways and

be permitted to the highway having the more

stringent permitting requirements.

27. The definition of Ðcontrolled areaÑ in section

4 79.01(5) provides in pertinent part:

(5) ÐControlled areaÑ means 660 feet or less

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

any portion of the State Highway System,

interstate, or federal - aid primary highway

system and beyond 660 feet of the nearest

e dge of the right - of - way of any portion of

the State Highway System, interstate highway

system, or federal - aid primary system outside

an urban area.

28. The term Ðvisible signÑ in section 479.01(27) is

defined as Ðthe advertising message or informative co ntents of a

sign, whether or not legible, can be seen without visual aid by a

person of normal visual acuity.Ñ

29. ÐMain - traveled wayÑ is defined in section 479.01(12)

and provides in pertinent part:

(12) ÐMain - traveled wayÑ means the traveled

way of a h ighway on which through traffic is

carried. In the case of a divided highway,

the traveled way of each of the separate

roadways for traffic in opposite directions

is a main - traveled way. The term does not

include such facilities as frontage roads,

turnin g roadways which specifically include

on - ramps or off - ramps to the interstate

highway system, or parking areas.

30. In the instant matter, the greater weight of the

evidence , 1/ including the partiesÓ videos , establishes that the

eastward face of the Monu ment Sign is visible from I - 95.

Therefore, the eastward face of the Monument Sign falls within

the permitting requirements of the DepartmentÓs jurisdiction

because the sign is visible to and within 660 feet of I - 95.

Grandfather ing

31. Petitioner address ed the grandfather exemption at

hearing based on the Monument Sign having been Ðin roughly the

same location since the late 1970s without any Department

permits.Ñ

32. The Florida Legislature set up parameters for the

Department to permit a sign by the gr andfathering method in

s ection 479.105(1)(c)2 . , which provides in pertinent part:

2 . If the sign does not meet the current

requirements of this chapter for a sign

permit and has never been exempt from the

requirement that a permit be obtained, the

sign ow ner may receive a permit as a

nonconforming sign if the department

determines that the sign is not located on

state right - of - way and is not a safety

hazard, and if the sign owner pays a penalty

fee of $300 and all pertinent fees required

by this chapter, i ncluding annual permit

renewal fees payable since the date of the

erection of the sign, and attaches to the

permit application package documentation that

demonstrates that:

a. The sign has been unpermitted,

structurally unchanged, and continuously

maint ained at the same location for 7 years

or more;

b. During the initial 7 years in which the

sign has been subject to the jurisdiction of

the department, the sign would have met the

criteria established in this chapter which

were in effect at that time fo r issuance of a

permit; and

c. The department has not initiated a notice

of violation or taken other action to remove

the sign during the initial 7 - year period in

which the sign has been subject to the

jurisdiction of the department.

33. Grandfatherin g is not an option for HFT under the law

since the Monument Sign does not even meet the first prong of the

requirements. Even if HFT can easily satisfy the initial element

of never having been permitted, the structure changed in 2011

when the Marquee Sign was removed and constructed , not restored

as the Monument Sign on the original Coral Base Sign foundation.

Additionally, since the latest construction occurred in 2011, the

seven - year requirement for maintaining the sign in the same

location is not met. Accordingly, PetitionerÓs failure to

establish the aforementioned requirements ends any further

inquiry regarding the Monument Sign being permitted under the

grandfather provision .

Equitable Estoppel

34. PetitionerÓs contention that the Department is es topped

from denying the eastward face sign permit is not persuasive.

HFTÓs position that it detrimentally relied on the May 28, 2010,

letter as a demand by the Department for Petitioner to move the

sign without any notice regarding permitting is rejected. In the

letter, the Department only informed HFT they had to Ðrelocate

[the sign] onto property owned,Ñ which did not mean that such a

relocation would not have to be permitted. Additionally, when

relocating the sign, HFT had the responsibility to do so i n a

legally permissible manner complying with any and all

requirements. Moreover, PetitionerÓs assertion of unjust and

inequitable treatment as grounds to estop the Department because

HFT spent approximately $50,000 .00 to construct the Monument Sign

is no t compelling since the westward face of the Monument Sign

was also constructed with those same funds and is being fully

utilized as a permitted sign by the Department.

35. In sum, the greater weight of evidence established that

the eastward face of the Mo nument Sign is visible to I - 95 and

requires a Department permit. However, section 479.07 prohibits

a permit from being issued as the eastward face is less than

1 , 500 feet from the existing Clear Channel Sign on the same side

of I - 95. Petitioner failed to meet its burden of proof in this

proceeding and to establish that the eastward face is exempt from

permitting and that the eastward face can be permitted under the

grandfather provision of section 479.105, or that the Department

is equitably estopped fr om denying PetitionerÓs permit

application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMEN D ED that the Florida Department of Transportation

enter a final order upholding Petitioner HFTÓs Notice of Denied

Outd oor Advertising Permit Application for the eastward face of

the Monument Sign.

DONE AND ENTERED this 14th day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14 th day of September , 2015 .

ENDNOTE

1/ The undersigned finds that PetitionerÓs visibility argument

regarding the Carter proceeding is unpersuasive.

COPIES FURNISHED:

Austin M. Hensel, Esquire

Kimberly Menchion, Esquire

Department of Transportation

Haydon Burns Build ing

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

(eServed)

William G. McCormick, Esquire

Gray Robinson, P.A.

401 East Las Olas Boulevard , Suite 100 0

Fort Lauderdale, Florida 33301

(eServed)

James C. Boxold, Secretary

Department of T ransportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

(eServed)

Trish Parsons, Clerk

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wi thin

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.